Hotel & Restaurant Employees Local 64 (Hlj Management)

HOTEL & RESTAURANT EMPLOYEES LOCAL 64 (HLJ MANAGEMENT) 773 Hotel, Motel, Restaurant, Cafeteria, Bartenders and Miscellaneous Employees, Local Union 64, AFL-CIO (HLJ Management Group) and Elsie Katharina Sage. Case 17-CB-2971 20 February 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JENKINS AND BABSON On 31 May 1985 Administrative Law Judge Donald R. Holley issued the attached decision.' The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respond- ent filed a brief in support or the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions3 and to adopt the recommended Order. 1 The Charging Party has requested oral argument. The request is dented as the record, exceptions, and briefs adequately present the issues and the positions of the parties i The General Counsel and the Charging Party have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544- (1950), enfd. 188 F.2d 362 (1d Or. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 The General Counsel's exceptions assert, inter alia, that Teamsters Local 705 (Associated Transport), 209 NLRB 292 (1974), applies to this case and requires finding an 8(b)(1)(A) violation for the Respondent Union's alleged failure to advocate the interests of Charging Party Sage at a grievance meeting.,We disagree. In Associated Transport, the Board held that once a union undertakes to present an employee's grievance to an arbitral committee it is obligated to act as the employee's advocate and to present the grievance in the light most favorable to the grievant. The Board found an unlawful breach of the duty of fair representation because the union's-official openly stated before the committee that the grievance was without merit. The Board has subsequently indicated, however, that a union's representative' s duties in the early prearbitral stages of a grievance, as in the prearbitral grievance meeting here, are not the same as the duty owed by an attorney to a client or the duty of a union to be an advocate once in arbitration, as in Associated Transport. See Service Employees Local 579 (Convacare of Decatur), 229 NLRB 692 fn 2 (1977); P.P.G. Industries, 229 NLRB 713, 715 (1977). In addition, we note that during the Respondent's adequate investiga- tion of Sage's grievance, a steward informed her of the need to produce witnesses to substantiate her contested version of critical events. Sage, hei union representative, and the Employer's officials attended a nonarbi- tral grievance meeting on 30 July 1984. The parties exchanged informa- tion and stated their positions, but Sage failed to provide the requisite substantiation. In these circumstances, we find that its business agent Silvio acted within the Respondent's considerable grievance,handling dis- cretion when, having heard both sides of the grievance, he then openly agreed with the Employer about the merits of Sage's grievance and said that the Respondent would not proceed to arbitration. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Stanley D. Williams, Esq., for the General Counsel. Richard Helfand, Esq. (Panethiere & Helfand), of Kansas City, Missouri, for the Respondent. W. Christopher Hodge, Esq., of Knob Noster, Missouri, for the Charging Party. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge. On an, original charge filed by Elsie Katharina Sage (Sage) on 17 September 1984,1 and an amended charge filed on 5 November, the Regional Director for Region 17 of the National Labor Relations Board issued a complaint on 6 November which alleges, in substance, that by failing to advocate the interest of Sage at a grievance meeting held on 30 July, and by refusing to process to arbitration a grievance filed by Sage concerning her discharge by HLJ Management Group (HLJ), Hotel, Motel, Restau- rant, Cafeteria, Bartenders and Miscellaneous Employees, Local 64, AFL-CIO (Respondent) violated Section 8(b)(1)(A) of the National Labor Relations Act. Re- spondent filed a timely answer denying it had engaged in the unfair labor practices alleged in the complaint. The case was heard in Kansas City, Kansas, on 13 and 14 December. All parties appeared and were afforded full opportunity to participate. The General Counsel, Re- spondent, and Charging Party Sage filed posthearing briefs, which have been carefully considered. On the entire record, and from my observation of the demeanor of the witnesses who appeared to give testimony, I make the following FINDINGS OF FACT 1. JURISDICTION The complaint alleges, and Respondent admits, that HLJ Management Group, a sole proprietorship, is en- gaged in the operation of dining halls at various facilities including a facility located at Whiteman Air Force Base, Knob Noster, Missouri; that it annually purchases goods and services valued in excess of $5000 from sources lo- cated outside the State of Missouri; and that, in the course and conduct of its Whiteman Air Force oper- ation, it annually performs services valued in excess of $50,000 for the United States Air Force. Respondent admits, and I find, that HLJ is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. i All dates herein are 1994, unless otherwise indicated. 278 NLRB No. 112 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. STATUS OF LABOR ORGANIZATION It is admitted, and I find, that Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts HLJ Management Group has operated a dining room at Whiteman Air Force Base since 1982. Respondent Union represented the employees of HLJ 's predecessor and HLJ has maintained contractual relations with Re- spondent since it obtained the facility . The subsisting col- lective-bargaining agreement was placed in the record as General Counsel's Exhibit 2. The portions of the agree- ment which are relevant in the instant case are article III (rights of employer), article XVII (seniority), and article XX (grievance procedure).2 On 20 September 1-983 Elsie Sage submitted an appli- cation for employment to HLJ by giving a completed application to Terry Snapp, her bowling partner, who was the assistant manager of HLJ's Whiteman Air Force Base facility. The job application in question was placed in the record as General Counsel's Exhibit 6. Sage credi- bly testified she indicated on the front page of the form that she was applying for a cashier position.3 On the 2 The rights of employer clause is , a standard clause which gives the employer the right to hire, suspend, discharge for cause, etc, its employ- ees subject to restrictions expressly provided for in the agreement. The relevant sections of the seniority provision are sections 3, 7, and 8 which state: SECTION 3 : The employer will consider seniority along with the abil- ity and qualification when making promotions, demotions, or perma- nent transfers from one job classification to another When openings are available, the Employer will post notices on bulletin board in each dining facility for 72 hours prior to filling position permanent Employees may bid on open jobs and picked by seniority provided they have the ability and qualification to do the job ., The Employer will not bring help from outside the bargaining unit until the regular full time employees have had the opportunity to bid on the job If there is not [sic] individual employed who is suitable, the Company may employ help from outside the unit. SECTION 7• Seniority as defined above, shall govern in cases of vaca- tion schedules, promotions when qualified, available shifts, working hours, and days off, where practical within said building and fair to all employees. If an employee is promoted and proves unqualified in the higher classification he,•or she may be returned to their previous position within the bargaining unit, provided that this occurs within a trial limit of thirty (30) days SECTION 8: No employee shall be discharged by the Company with- out just cause„ and all dismissals may be subject to the grievance pro- cedure and arbitration clause. All reprimands, including those related to excessive absenteeism, tardiness, and personal appearances, shall be in writing, and a copy given to the individual and a copy sent to the Union Secretary All reprimands shall be held on file no longer than one (1) year, after such time be discarded from employees file Three (3) written reprimands may result in immediate termination for the employee. Theft, intoxication, illegal use of drugs, altering or falsifying time records or other company records may result in im- mediate termination Summarized, the grievance procedure set forth at art XX (p. 7) re- quires that grievances be filed within 7 days of the alleged violation, indi- cates the shop steward will negotiate with the employees ' supervisor at the first step, provides that the business agent and the project manager will consider the grievance at the second step, and provides for arbitra- tion if the grievance is not settled at the second step. a Snapp admitted during her testimony that she subsequently placed in the "Position" section of the application the following . "or anything-all jobs apply." Noting that the "Position" section of employee Cassity's ap- second page of the application Sage indicated she worked during the period 1981 -1983 at Rival Manufac- turing Co. In the column entitled "Reason for Leaving" she placed the word "Medical." She testified that while working at Rival she experienced lower back pain due to a calcium buildup, and a Base doctor, Dr. Copeland, caused her to attend physical therapy sessions three times a week for 2 months in attempt to clear up her problem. According to Sage, Snapp was aware of her back prob- lem and, when completing the employment application, she claims she asked Snapp if she should indicate on the employment application the precise medical problem which had caused her to leave Rival . She claims Snapp told her not to bother; to just furnish HLJ with a doc- tor's statement concerning the matter.4 When completing the "Physical Record" section of the application, which also appears on the second page of the application, Sage indicated she had no physical defects which would' pre- vent her from performing any work for which she was being considered, indicated she had never been injured, and indicated she had no defects in her hearing or vision. Sage was hired by HLJ on 27 September 1983 as a standby employee. The record reveals that, while inter- viewing Sage and four additional applicants on 20 Sep- tember; James Roberts, the project manager who hires and fires all employees at the facility , informed the appli- cants that they would be expected to perform any and all work tasks which were necessary in the operation of the dining room, including even mowing the grass , shoveling snow, or picking up sticks if told to do so by their super- visor. Although Sage testified Snapp assured her before she was hired that she would be trained as a cashier and would work only in that capacity, the record reveals that during the period extending from 27 September through 31 October 1983 Sage, as a standby employee, received 2 days of cashier training; spent 2 or 3 days serving ice cream, was trained for 2 days in the prepara- tion of salads; and substituted 6 days as cashier for others. Snapp credibly testified that all jobs excepting the cashier jobs are considered to be KP functions.s At some point in late October Sage was scheduled to receive training in the carryout cashier job. The carryout cashiers deliver customer prders outside the dining room and collect money owed by the customer. Snapp credi- bly testified that Sage requested that she be excused from plication was left blank although she was hired the same day Sage was hired, and that no words were added to employee Foffel's application on which-Foffel indicated she was applying for a cashier position (see 0 C. Exhs. 14(c) and (d)), I strongly suspect Snapp added the above-quoted words to Sage's application after Sage was terminated: 4 Snapp denied she was then aware that Sage had a back problem'and she denied she told her to furnish a doctor's statement to explain' her "medical" reason for leaving Rival Noting that the record reveals Sage submitted no doctor's statement with her application; that she was bowl- ing in two bowling leagues at the time; and that Snapp credibly testified Sage submitted a doctor's statement to HLJ in late October 1983, when she requested that she not be required to perform certain work , discussed mfra, I credit Snapp rather than Sage 5 In addition to serving ice cream and preparing salads, the KP func- tions include cleaning tables, policing dining room, carrying dishes, filling dishwasher, washing pots and pans, carrying supplies, and ,performing other tasks in connection with operation of the facility. HOTEL & RESTAURANT EMPLOYEES LOCAL 64 (HLJ MANAGEMENT) 775 carryout cashier training because her back was hurting. According to Snapp, Sage was excused from the de- scribed training after she visited Dr. Copeland and ob- tained a note placed in the record as General Counsel's Exhibit 7.6 Sage testified the note was obtained because Snapp indicated when she was completing the employ- ment application that a note explaining her reason for leaving Rival should be furnished to HLJ. I do not credit her assertion. On 1 December 1983 Sage successfully bid on and was awarded a cashier position. As a cashier she worked 20- 1/2 hours per week. On her longest workday she worked 5-1/2 hours on a split shift. On 14 May 1984 Roberts met with HLJ's dining room employees and informed them that business conditions dictated that some employees' would be laid off. Jean Tanner, Respondent's steward at the HLJ dining room, testified, without contradiction, that on 15 May Sage complained to her that she had gotten the axe and was going back on standby. Sage further informed Tanner that Roberts had told her a long time ago that by seniori- ty she would lose her job. Tanner testified without contradiction that on 22 May Sage told her she wanted to file a grievance because Foffel, a standby cashier, was working and she should be working. Tanner told Sage she had a shift until 31 May and Foffel was standby filling in for Joyce Lehman and she had no valid grievance.? According to Tanner, Sage then indicated to her that she wanted to file some sort of complaint because she had a gut feeling that when cash- ier Armstrong left in July Roberts would give Foffel the job," Tanner told Sage they would have to go by senior- ity and indicated that Sage persisted saying she was not young and pretty any more. Tanner told Sage she would make sure HLJ went by seniority, and indicated she could do nothing at that time, but if Foffel got the job in July she should come back to her as she would have a legitimate complaint. Sage testified that during the month of May 1984, she heard rumors that there may be job bumping in the future. She indicated she expressed concern over the pos- sible bumping to Roberts and he told her she did not have to worry. On 29 May, however, Roberts tele- phoned Sage at her home to inform her he had talked to her doctor and, as he had indicated she was fine, he had a 16-hour KP shift for her.9 Sage told Roberts he knew she could not perform the KP work. Roberts told her she would be terminated if she did not accept the assign- ment. 6 The note which is dated 31 October 1983 states. Mr. Roberts, Mrs Sage is undergoing treatment for chronic lower back disease & should be excused from KP duty involving bending, lifting or ex- cessive standing ° In addition to receiving training, standby employees fill in for regular employees when the latter are absent for any reason. 8 The record reveals Foffel was hired as a standby employee on 12 February 1984 9 Apparently, Roberts was offering Sage a full-tune KP position The 16 hours consisted of two 8-hour days About the same time Sage was informed that she had been bumped from her cashier position by an em- ployee with more seniority who had been performing KP duties. After Roberts informed her she would be terminated if she refused the KP shift, Sage complained to Dr. Cope- land. Dr. Copeland then advised Roberts by letter dated 1 June 1984, inter alia, that it was his medical opinion that Sage should not resume routine KP-type duties at that time because such would predispose her to "a signif- icant recurrence of her chronic back illness." 10 Sage worked her regular shift as a cashier on 31 May. At the end of her shift Roberts instructed her to leave her safe, office, and cashbox keys. On 6 June Sage and her husband visited the offices of Region 17 in Kansas City. They were referred to Re- spondent. 11 Sage then attempted to contact Tanner. Tanner was out at the time but returned Sage's call and spoke with her for 26 minutes."2 During this conversa- tion, Sage informed her Roberts had offered her a 16- hour KP shift but she had turned it down because she had a back condition. After Sage informed Tanner that Roberts and Snapp were aware she had a back condition when she was hired, Tanner asked her if she was sure Roberts knew. Sage then said she had proof-a doctor's excuse (referring to the 31 October 1983 note). Tanner informed her if that was true she had a legitimate com- plaint. Tanner then indicated she would check her file at HLJ the following day and let her know her findings. On 7 June Tanner obtained Sage's, personnel file from Roberts. She then contacted Sage and scheduled a meet- ing at Sage's shop in Knob Noster for the following day. When they met, Tanner asked Sage if she was aware she had lied on her employment application. Sage answered no. Tanner then observed that, after indicating on the ap- plication that she left Rival for medical reasons, Sage an- swered the portion of the application which asked if she had any defects which would prevent her from perform- ing all duties by answering no. Tanner asked if the no answer was in Sage's writing and, when Sage said yes, Tanner asked why she answered no. Sage told her she answered no because Terry Snapp told her to answer no. At that point, Sage's husband informed Tanner they had witnesses to prove that Snapp helped his wife fill out the application at the bowling alley and told, Sage to answer the questions as she had. Tanner commented that, irre- gardless of who told her to do it, it was still falsifying an application. Tanner further advised the Sages that, in her opinion, the only fight they could have was for Sage to produce her witnesses , either in person or a certified letter, to give the Union something to fight on. Tanner indicated that otherwise all HLJ would say is she lied on her application and they could not do much for her. When Sage then indicated she wanted to file a grievance, Tanner told her she would bring her the form, and there- after make sure the Union and HLJ were served with copies of the grievance. 10 See G.C. Exh 8 11 Although the General Counsel claims Sage did not know the name of the Union which represented HLJ's employees at the time and that she was unaware that Tanner was her shop steward, Tanner's uncontradicted testimony, which reveals Sage discussed filing grievances with her on 15 and 22 May 1984, convinces me Sage knew before she visited the NLRB that she could file a grievance with Tanner. 12 See Resp Exh 1 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record reveals that shortly after Tanner told Sage, in effect, that the Union would not be able to win her grievance unless she produced witnesses to"prove that Snapp caused her to falsely answer questions on her em- ployment application, Mr. and Mrs. Sage employed at- torney W. Christopher Hodge. On 9 June Tanner telephoned Sage's shop and in- formed Sage's daughter she would furnish the grievance form the next day. About 10 June Tanner took a griev- ance form and a copy of the collective-bargaining agree- ment to Sage's shop. By letter dated 7 June 1984, which was received, by Sage on 13 June, HLJ informed the employee as fol- loWS:13 This letter is to inform you, as of 31 May 1984, you have been terminated from HLJ Management group, due to reasons stated below and our findings. 1. You refused to except the 16 hours shift was given to you according to seniority. (Union con- tract) 2. You made false statements on your application concerning [sic] your health-not having back trouble, when you knew it all along. 3. The report we got from the Doctor stated: You have back condition for which you have been at chronic restrictions on lifting, bending, and stand- ing. With all the findings that we stated above, we are sorry to say, we have to let you go. For people to work, He/She must be in good health and able to pull any shift that they are asign [sic] to. ALL THE JOBS, Consis [sic] of lifting, bending, standing. On 19 June Sage submitted a grievance dated 18 June to Shop. Steward Tanner.14 Sage's grievance is embodied in a 3-1/2 page letter attached to an official grievance form. The letter states: i 5 LOCAL UNION 64 AFL-CIO OFFICE SUITE 1 809 39th ST KANSAS CITY MO 64111 HLJ Grievance Handler: In reply to the letter dated June 7, 1984, mailed June 13, 1984 from HLJ Management, stating that I was terminated from my cashier job, I would like this letter to be considered an official grievance against HLJ Management Group, P.O. BOX 187, Knob Noster, MO. 65336, (Home Office: Suite 929, Two Gateway Center, 4th and State, Kansas City, Kansas. 66101). The charges are as follows: a. unfair labor practice. 13 G C Exh 9 14 The grievance was not timely filed as art XX, sec 1 of the contract requires that a grievance be filed within 7 days of the occurrence of the event complained of See G C Exh. 2, p 7 15 SeeGC.Exh 3 b. violation of seniority for work, pay, and recall. c. discrimination against age and nationality. I was hired as a stand-by cashier in October 1983, and held the title of food handler, however, I never was called in to work as a food handler (here in after, referred to as K.P.) because of a back prob- lem that I had at the time and still do. As a matter of record, I had to quit Rival Manufacturing Co. because of my back condition. Manager Roberts and Assistant Manager Snapp were both aware of these facts. In October 1983, Mrs. Snapp and I sat in the base bowling alley (we were bowling part- ners) and filled-out the application. At that time I questioned Mrs. Snapp, as to noting my back prob- lem, and was told it was not necessary, as long as we had a note from a doctor to accompany the ap- plication. The letter stated no lifting, bending or prolonged standing. This letter dated in October is part of my -record, witnessed by Mrs. Tanner, our union stewart [sic]. The letter from my doctor is proof that there was no intentional falsification of my application. I listened to Mrs. Snapp and did what she told me to do. I was then hired on for a permanent basis as a cashier (letter in my file) in December 1983, under these conditions, and worked six months permanent, and two months as part-time for a total of eight months, and never missed a days work due to my back condition. Paragraph I, of the HLJ Management letter is not telling the entire story. It is true Mr. Roberts called and offered me a 16 hour shift, however, it was for K.P duty, on weekends only, for less money and not cashier duty. I was forced to refuse the shift for the following reasons: a. When I was full time hired for cashier, I was directed by HLJ Management to turn in my white uniforms, so someone else could use them, because I would no longer need them working cashier duty. This I did and my uniforms went to Veronica Cam- bell [sic], and my shoes went to Terry Hooks. b. Mrs. Snapp refused to train me for K.P. or carry-out because there was too much heavy lifting and manual labor. So therefore, I could not report to work like Mr. Roberts wanted me to because I had no uniforms or training. c. doctor's orders. The questions at hand are: 1. If hired as a K.P. why was I never called in to perform K.P. duty, and people with less seniority were. Art. XIV 2. If hired as a K.P. then the HLJ Management pay records should be reviewed and I should be paid for all the times women with less seniority were called in ahead of me for K,P. duty. 3. I should never have been hired as a K.P with such a letter in my file. (Cashiers can move about, sit, stand & walk). 4. If hired as K.P. then why the request to turn in my uniforms. HOTEL & RESTAURANT EMPLOYEES LOCAL 64 (HLJ MANAGEMENT) 777 5, If hired as K.P then why no training. Other questions I would like to ask are the fol- lowing: 1. If hired as a cashier, why work a girl (Cathy Foffel) with four to six months less seniority, ahead of a full time employee? When a person is bumped or layed-off there is a schedule change, this change should include part time workers as well. Full time workers who was bumped certainly should work before the part time workers. Art. _XVII 2. If seniority is such a strong factor why did a stand-by employee work more hours then a full time employee while other full time employees were on vacation? (Cathy Foffel) 3. I don't like to question the management, how- ever, in April, Terry Hooks and ][ went to the office to question my time and when we approached Mrs. Snapp she became very hostile, threw the time sheets at me and verbally abused me. To this date my question still has not been answered. 4. I have been to approximately four meetings called by HLJ Management while working nights so I went in on my own time (day). I received no pay for these meetings. Art. XXII Sec. II. 5. Another question to be answered is why until June 7 to write me a letter and mail it June 13, to inform me that my employment has been terminated as of May 31, when ,in fact I worked May 31? Also, why was it sent certified mail. No prior warnings or discussion of work deficiencies was given before termination. 6. I feel that I am being discriminated against be- cause of my nationality and age, they offered me a job that they were fully aware that I had no re- quired uniforms for and was physically unable to perform there by fabricating a means to falsly [sic] terminate my employment. 7. Mr. Roberts and Mrs. Snapp admitted to both my husband and I that Mr. Roberts despised Ger- mans, when I approached him on this subject he blushed and admitted it was true, but I was not the same as the "rest of them." In fact, Mrs. Snapp ad- mitted that it took about a two month delay to con- vince him to hire me. It is common knowledge that a full time cashiers job is available July 15, and it is my contention all these actions taken against me were a deliberate at- tempt to prevent a German, such as myself from at- taining the position. They have shown favoritism in the past (Cathy Foffel) and I feel that they want to fill this vacancy with a younger women. In closing, I will say that I am not in persuit [sic] of my legal back pay, nor do I want to be compen- sated for the company meetings. All I would like to see done is to have a uniform hiring program so there is no questions and I would like to be re-in- stated July 15, 1984 as a cashier. SINCERELY, /s/ ELSIE K. SAGE By letter dated 24 June 1984, HLJ responded to Sage's grievance stating:' 6 Hyman L. Jarrett Owner Local Union 64, AFL-CIO, In response to your grievance, the following in- formation is provided: Concerning your opening statement, Mrs. Sage was not hired as a stand-by cashier, but was hired to perform all jobs required of her . When we inter- view the employees, they are told that some of them will be trained for cashier, carry-out, and salads, so when we need one we can call on any of them. The only job that does not require any train- ing is Kitchen Patrol (KP). For KP, you learn on the job. When one of the regular employees is absent, a stand-by is called in to take their place, and the supervisor instructs the person as to what he or she is supposed to do. Mrs. Sage was working a month on training for salads when she came to me in the Bowling Alley and said she can't do salads because her back hurt. I told her I cannot excuse her from salads, carry-out training, or KP that week unless she brought a note from the doctor. This was the first time I heard about her back problems. I went to the office and told Mr. Roberts what Mrs. Sage had said, and that I told her to bring a note from the doctor. We always tell an employee to bring a note from the doctor when they are complaining they can't do the work The doctor's excuse is usually for just a few days, then they resume their duties as before. Mrs. Sage's note from her doctor was no exception from any other as her doctor did not state her condition was a permanent one. We never thought any more about it because soon after, Mrs. Sage landed a job according to her seniority which happened to be a cashier position. On 1 June 1984, we had to cut hours and the se- niority people had to be placed first. Since Mrs. Sage and several other employees did not have enough seniority, we had to cut them and some of them had to go back to the stand-by list. Mrs. Sage was offered 16 hours of KP duty ac- cording to, her seniority. Mr. Roberts told her that if she didn't accept the shift, she wouldn't have a job. According to her doctor, she was capable of performing KP. She refused the position. The following data is furnished in response to the reasons Mrs. Sage turned down the shift: Para- graphs correspond to those in the grievance. a. Mrs. Sage was not a full-time cashier as she stated. Mrs. Sage turned over her uniforms to Mrs. Campbell on her own free will. She was not direct- ed by HLJ to do this. She came to the office and told us she gave her uniforms to Mrs. Campbell. b. I, Mrs. Snapp, did not refuse to train Mrs. Sage for any job. As stated before, there is no train- 16 See G.C. Exh. 5. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing period for KP duty, you learn on the job. Mrs. Sage was going to be trained on carry-out the same week she complained about her back and she asked me not to start her yet. With the doctor's note, we didn't start her on carry-out. We have uniforms in the office that we keep for emergencies. Mrs. Sage could have used these uniforms. c. The doctor's note did not state the problem was of a permanent nature; therefore was handled as temporary (one week). 1. The reason why Mrs. Sage was never called in to perform KP is because she was on training for cashier and salads, and right after that training period, went on shift. Once an employee goes on shift, they are no longer on call unless its an abso- lute must. We never needed her as long as we had enough stand-bys to cover the vacancies. 2. Mrs. Sage had no seniority rights as long as she was on the stand-by list. Seniority rights applies when a shift comes open. If you are the first hired on the stand-by list, you get the first choice when a shift comes open. Otherwise, we call in any stand- by who we can get at the time. Mrs. Sage was of- fered a KP shift for which she turned down. 3. As stated before, the original doctor's note did not state the back problem was of a permanent nature. The subsequent letter in your file is dated 1 June 1984. If this letter had been in the file when we reviewed the applications, she would never have been hired. 4. Mrs. Sage was never directed to turn in her uniforms. She voluntarily gave them to Mrs. Camp- bell and then came and told us in the office. 5. There is no formal training for, KP, it done [sic] on the job. Mrs. Sage refused KP duty, com- plaining of back problems a month after she was hired. The following are replies to the other questions. 1. Mrs. Foffel is a stand-by cashier and KP-the same as everyone else on the stand-by list. As stated before, seniority does not apply to employees on the stand-by list. They work and get their hours from the absenteeism of the regular employees. If you are on a regular shift, you have fixed hours. To get more hours, the employee puts in for a shift that comes open. 2. Mrs. Sage was never a full-time employee. A full-time employee is one who works a 40 hour week. A part-time employee is anyone who works less than 40 hours per week. A stand-by person can work up to 40 hours per week. 3. This statement is totally false. I, Terry Snapp, did not get hostile or throw the time sheets at anyone or verbally abuse _Mrs. Sage. Her question was answered. Terry Hooks (her supervisor), Mrs. Sage, and I went through the time sheets 4 different times and each time her hours corresponded with what-she' was paid. I told her'this the same day. Mrs. Sage came into the office with a very poor at- titude, so I called her supervisor (Terry Hooks) in who was standing outside, to come in and witness the time sheets that the hours were correct. Mrs. Sage kept saying it was wrong and kept throwing her arms in the air and walking back and forth in a rage. I then told Mrs. Sage that I didn't mind people coming in the office, but if they are going to have a bad attitude about it, she could just leave. 4. The meetings were called by the military and all dining hall, military, and contract personnel were required to attend if they wanted to keep their job. They were not company meetings. One other time Mr. Roberts called you in because you took money from the safe. You left no notes and didn't call. When I called Mrs. Sage, she admitted taking the money and that she would return it. She should have been terminated then. 5. The letter was unnecessary. When Mrs. Sage refused the shift that was offered, then the date of the call (31 May 84) was the date of termination from the 16-hour shift that she refused. This didn't apply to any other shift she was on. 6. We have over seven different nationalities working for us, ranging from 17 to 58 years of age (men and women). With these factors in mind, it's hard to see where discrimination comes into play. 7. I, Terry Snapp, did not convince Mr. Roberts for two months to hire Mrs. Sage, like she claimed. If I, Mr. Roberts, hate Germans, then why did I have German girls working for me for over five years? The following general comments are provided: 1. We have no full-time cashiers. All our cashiers are part-time or with KP duty. 2. There has never been any favoritism shown as far as Mrs. Foffel or any other employee, is con- cerned. Mrs. Foffel has never drawn a paycheck over $200.00. Mrs. Sage has. 3. I feel Mrs. Sage was trying to use my friend- ship to get what she wanted, even after I told her that when I'm behind my desk, I'm all business and friendship goes out the door. I feel she was very bitter because I didn't give her preferential treat- ment. 4. If Mrs. Sage's back was so bad, why was she bowling every week, lifting a 12-14 pound bowling ball, bending, lifting, etc.? There aren't any pots or pans that weigh as much as a bowling ball in the dining hall. In closing, I cannot let Mrs. Sage continue work- ing with us due to her inability to perform the job offered her. It is impossible to keep her on the pay- roll waiting for the right job to come along. We need employees capable of performing all the jobs required of them., Mrs. Sage's handicap could be very detrimental to the Company. We sincerely hope this answers any and all ques- tions you may have had, however, the decision to HOTEL & RESTAURANT EMPLOYEES LOCAL 64 (HLJ MANAGEMENT) 779 terminate Mrs. Sage's employment with us remains firm. SINCERELY, /S! JAMES A. ROBERTS PROJECT MANAG- ER IS/ TERRY V. SNAPP ASSISTANT PROJECT MANAGER ITEMS LEFT OUT OF THE FRONT PAGE OF THE GRIEVANCE (FRONT PAGE) Mrs. Sage claim that I Terry Snapp helped her filled out her application at the bowling alley in Oc- tober. Mrs. Sage and I did not do this, Her applica- tion was given to us on September 20th 1984 .. [sic] She was hired the 27th of September 1984. There is no way I could have helped her fill out her applica- tion like she indicated. By letter, dated 29 July 1984, Sage informed Roberts and Respondent's business agent why she felt her griev- ance was valid. She informed them:'? This letter is written in order to outline why I was improperly discharged in violation of the Col- lective Bargaining Agreement entered into by and between HLJ Management and the Hotel, Motel, Restaurant, Cafeteria,, Bartenders and Miscellaneous Employees Local Union 64, AFL-CIO. What fol- lows is my argument why I was improperly termi- nated. 1. NO FALSE STATEMENTS WERE MADE IN MY EMPLOYMENT APPLICATION REGARDING MY PHYSICAL QUALIFICATIONS. Mr. Roberts' termination letter of June 7, 1984, stated that I was being terminated, in part, because I had presumably falsified my employment applica- tion by not stating I had a chronic back condition which prevented -me from lifting, bending and standing.' This reason for termination is simply untrue. When I was hired as a stand-by cashier in October 1983, it was a matter of record that I had quit Rival Manufacturing Co., Warrensburg, MO, because of my back condition. If fact [sic], in October 1983, Mrs. Snapp and I sat in the base bowling alley (we were bowling partners) and assisted me in filling out my employment application. At that time I asked Mrs. Snapp whether I should note ' my back prob- lem, and was told it would not be necessary so long as I had a note from a doctor accompanying my ap- plication.' I attached a letter from a doctor stating the extent of my physical disability. The fact that this letter was attached to my em- ployment application proves I did not intentionally falsify my employment application. Therefore, this reason for termination cannot be considered "just 17 G C. Exh 4 cause" pursuant to Section 8 of Article XVII of the Agreement. II. BUMPING OUT OF JOB CLASSIFICATION IS NOT PERMITTED UNDER THE AGREEMENT. On May 29, 1984 I was notified by Mr. Roberts that I was to be bumped by Sandra Armstrong who was at that time working K.P. but who had greater seniority than I. This bump was effective June 1, 1984. This bump by Sandra Armstrong violated Sec- tion 3 of Article XVII of the Agreement because permanent transfer from one job classification to an- other may not be, accomplished without first posting notices on the employee bulletin board and permit- ting employees to bid for -that permanent transfer to another job classification at least 72 hours prior to filling the position permanently. In this situation, mrs. [sic] Armstrong who had a K.P. job classifica- tion bumped me out of my position as a cashier. This is clearly in violation of this contract provi- sion. III. LAYOFF VIOLATED SENIORITY CLAUSE. On my last workday (May 31 , 1984) I was noti- fied by Mr. Roberts that I was to work a sixteen hour K.P. shift. I informed him that I could not physically work K.P. and he told me I was termi- nated. Mr. Roberts' actions violate Section 2 of Article XVII of the Agreement which states that "for the purpose of laying off ... employees, seniority will be applied with job ` classification." The fact remains that I was chosen to be layed-off when employees with less seniority were kept.2 Morewover [sic], by transferring me to K.P. from cashier I was receiving a demotion and reduction in pay. This violation is in Section 3 of Article XVII of the Agreement which indicates that "The em- ployer will consider seniority along with the ability and qualification when making'. '.. demotions, or permanent transfers from one job to another." This was not done since an employee, Kathy Foffel, with less seniority was kept as cashier while I was termi- nated. IV. REFUSAL TO WORK SHIFT NOT SUBJECT TO IMMEDIATE TERMINATION. In section 1 above, I showed I did not falsify my employment application and that my employer was always aware of my physical limitations . What re- mains is to determine whether my refusal to work the six hour K.P. shift was grounds for immediate termination.' It is not. Section 8 of Article XVII of the Agreement indi- cates that only "Theft, intoxication, illegal use of drugs, altering or falsifying time records or other company records may result in immediate termina- tion." Refusal to work,a shift is not one of the of- 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fenses and, therefore, is not subject to immediate termination. For the reasons I have outlined above, I am re- spectfully requesting reinstatement to my position as cashier and backpay from June 1, 1984. 1 My condition does not prevent me from standing at a cash register but only prevents me from lifting and bending for pro- longed periods of time See 1 June 1984 letter from Dr Ronald Copeland ' 2 Kathy Foffel, an employee with less seniority than I was kept as cashier while I was chosen to be bumped and transferred to K.P In early July Sage and her husband visited Respond- ent's office in Kansas City to ascertain the status of her grievance. Apparently, they had learned that Paul Silvio, the Union's secretary-treasurer, handled grievances be- cause they asked to speak with him. After inviting the Sages into his office, Silvio located Sage's grievance and informed her he had not had the time to become familiar with it. When Sage sought to discuss the details of her grievance, Silvio informed her they would be discussing her situation in detail when they met with the employer and detailed discussion at that time was not necessary. At some point during the short meeting, Mr. Sage told Silvio Sage did not have any faith in Shop Steward Tanner because she had seen her serving food to Roberts and she thought she was too close to management. Thereafter, Sage asked if he could attend the grievance meeting. Silvio denied his request stating he would rep- resent Elsie; that was what the Union was for. At the conclusion of the meeting, Silvio told Sage she would be notified when the grievance would be heard. Tanner testified, without contradiction, that she con- tacted the Sages twice during the month of July. On the first occasion she informed Sage a hearing on her griev- ance had been delayed because Roberts was in the hospi- tal. On the second occasion she informed Sage his wife's grievance meeting would be held at the HLJ facility on 30 July. Prior to the scheduled grievance meeting, Tanner dis- cussed Sage's grievance with Silvio, but made no recom- mendations. After the date of the Sages' visit to Re- spondent, but prior to the 30 July grievance meeting, At- torney Hodge telephoned Silvio to inform him he repre- sented Sage and desired to attend the grievance meeting because Sage did not feel she would receive fair repre- sentation from the Union. Silvio told him the Company did not pay him, that the Union did, and he was going to do everything in his power to get Sage's position back, and he did not need Hodge at the grievance hearing. Sage's grievance hearing was held on 30 July as sched- uled. Attending were: Roberts and Snapp for the em- ployer; Silvio, Tanner, and Edward Miller, president of the Union, for' the Union; and Sage. Without informing those who attended of her intentions, Sage taped the meeting by activating a recorder which she had in her purse, ',shortly after she entered the room where the meeting was held. The tape and a transcription thereof were placed in the record as General Counsel's Exhibits 10 and 11, respectively, after Respondent's counsel and Silvio were afforded an opportunity to listen to the tape and to review the transcript prepared by an employee of the Regional Office. Noting that counsel for Respondent indicated he did not object to the admission of the tape and the transcript, I find it most accurately reflects what occurred during the grievance meeting.'8 Briefly, it appears the grievance meeting commenced with the parties exchanging and supplying each other with a copy of the contract, HLJ's termination letter, Sage's grievance letter, HLJ's reply to Sage's grievance, and Sage's reply to the last-mentioned HLJ letter. After those attending read the above-mentioned items, Roberts indicated his termination letter contained his decision, and it was final. Silvio then summarized the -termination letter and indicated Sage contended Roberts and Snapp were aware of her back trouble when she was hired. Roberts denied he had any such knowledge and indicat- ed he first learned Sage had back trouble when she sub- mitted the 31 October note from Dr. Copeland to HLJ. Snapp verified Robert's statement and specifically denied she was aware that Sage had back trouble at the time she was hired. Sage then stated she had asked Snapp when completing the application at the bowling alley, whether she should say the medical reason she left Rival was back trouble, and claimed Snapp told her it was not nec- essary, to just attach a doctor's statement to her applica- tion. Sage further claimed that while working standby she was going to physical therapy three times a week be- cause of her back problem and stated Snapp was aware of that. Snapp denied Sage's assertions. Snapp then sup- ported her assertion by observing that Sage had claimed in her grievance letters that she had assisted her in com- pleting an employment application in October and that was obviously impossible because the application was dated 20 September and Sage was, in fact, hired 27 Sep- tember. When Sage then claimed the 31 October note from Dr. Copeland was furnished pursuant to Snapp's in- dication that she should furnish a doctor's statement with her application, Roberts stated he would not have hired Sage in the first place if her application revealed she had physical defects, and he observed that he had informed Sage, and the four other applicants hired at the same time, that they were being hired to do all the work, in- cluding washing dishes and pots and pans, scrubbing floors, shoveling snow, and cutting the grass. Roberts then stated he did not want to hear about any bowling alley stuff because he did the hiring and, firing and be- 18 Counsel for Respondent indicated the conversation captured on the tape and duplicated in the transcript with minor variations as to who was speaking at any given time (transcript), actually occurred. As Silvio, who was called as an adverse witness before the tape or the transcript was offered in evidence, gave considerable testimony which is not corroborat- ed by the General Counsel's exhibits under discussion, counsel for Re- spondent indicated he was not agreeing that Sage was able to tape all the conversation which occurred during the meeting. Specifically, Silvio gave self-serving testimony in attempt to show that he sought at the be- ginning of the meeting to cause Roberts to put Sage back to work in a job she could perform; he claimed the parties discussed whether the Em- ployer followed the contract when removing Sage from her cashier posi- tion, and he denied that, he made certain statements which were record- ed Silvio was not an impressive witness and I refrain from crediting his testimony concerning the grievance meeting which is not corroborated by the tape and the transcript Similarly, I do not credit Snapp or Tan- ner's testimony concerning the meeting which is not corroborated by the tape and transcript HOTEL & RESTAURANT EMPLOYEES LOCAL 64 (HLJ MANAGEMENT) 781 cause Sage had not indicated she had physical defects which prevented her from performing the work , he felt she falsely represented what was on her application. Silvio then agreed with Roberts and informed Sage she had falsified her application by stating she had no physi- cal problems when she actually did. When Sage reassert- ed that Snapp had told her how to fill out the applica- tion, Silvio observed that Sage had not furnished a doc- tor's statement with her application , and her claim that she was told by Snapp how to complete the application was merely hearsay. At that point, Dr. Copeland's 31 October note was produced and Silvio informed Sage that if it were dated 20 September instead of 31 October it would support her claim that she advised HLJ at the time she was hired that she had a back problem. When Sage persisted to claim that Snapp knew of her problem and was aware she had been going to therapy, Silvio ad- vanced the opinion that her grievance letters had been prepared by an attorney, and he informed her her attor- ney should have advised her that Falsification of an appli- cation subjected her to discharge . He then indicated the Union would not go to arbitration on her grievance be- cause they had a loser and could not afford to pay an arbitrator and attorney fees when the case was cut and dried. Silvio then told Sage she could take her complaint to some other agency if she wanied; that if she felt she was fired because Roberts did not like Germans she could go to EEOC. Thereafter, Silvio spent the remain- der of the meeting giving Sage a Kaggerated examples of instances in which employees had supplied false informa- tion on their employment applications which subjected them to discharge for cause. Sage sought to convince Silvio she was telling the truth when claiming that Snapp was aware of her back problem when she was hired, but Silvio ignored her protestations indicating the Union had been faced with a similar situation which involved an employee at a different employer , and it had decided that case was without merit also . The meeting concluded as Silvio stated he considered the grievance closed. B. Analysis and Conclusions Charging Party's attorney claims in his brief that the record warrants a conclusion that Respondent violated Section 8(b)(1[)(A) of the Act because it refused to pro- ceed to arbitration on a meritorious grievance . The Gen- eral Counsel contends the record requires a conclusion that Respondent did not fulfill its duty to fairly represent Sage as it reveals it did not thoroughly investigate her grievance and it failed to act as her advocate at the 30 July grievance meeting. Respondent contends Sage's grievance was not meritorious and it cannot be said to have refused her fair representation merely because it in- formed her it could not proceed to arbitration on a grievance it could not win. It is well settled that an exclusive collective-bargaining representative has an obligation to represent employees fairly. This duty of fair representation requires that a union serve the interests of all bargaining unit employees fairly, in good faith, and without hostile discrimination on the basis of unfair, arbitrary, irrelevant, or invidious distinctions. Yaca v. Sipes, 386 U.S. 171 (1967); Rubber Workers Local 12 (Goodyear Tire) v. NLRB, 368 F.2d 12 (5th Cir. 1966), cert. denied 389 U.S. 837 (1966); Miranda Fuel Co., 140 NLRB 181 (1962). The Supreme Court has recognized, however, that in the interest of effectively administering a contract's grievance-arbitration machin- ery a union must be allowed a considerable range of dis- cretion in screening out, settling, or abandoning, short of arbitration, those grievances which the union in good faith believes do not justify that costly and time-consum- ing final step. Yaca v. Sipes, supra at 191-192 . According- ly, the Supreme Court has held that an individual griev- ant has no absolute right to have his grievance taken to arbitration. No inference of unfair representation may, therefore, be drawn simply from a bar-gaining agent's failure or refusal to press a grievant's case through the ultimate stage of a contract's grievance-arbitration proce- dures or, for that matter, through any intermediate stage. And this, it has been held, is so even though it appears that the union may have acted negligently or exercised poor judgment in its handling of a grievance. Bazarte v. United Transportation Union, 429 F.2d 868, - 872 (3d Cir. 1971). "A breach of the statutory duty of unfair repre- sentation," the Supreme Court has made clear, "occurs only when a union's conduct toward a member of the collective-bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, supra at 190. Applying that test to the facts established by the record in this proceed- ing, I 'think it clear that the General Counsel has not made out a case of unfair representation. At the outset, I note that no substantial evidence in the record would support a finding that Union Representa- tives Tanner, Miller, or Silvio were , motivated in their consideration of Sage's grievance by any personal hostili- ty, towards the employee, by any favoritism towards other members of the bargaining unit who may have been affected by the outcome of the grievance, or by any other consideration of a discriminatory or 'invidious nature. Accordingly, if Respondent is to be found to have violated Section 8(b)(1)(A) of the Act as alleged, such a finding must be based on a conclusion that it processed Sage's grievance in a perfunctory manner. Bottle Blowers Local 106 (Owens-Illinois), 240 NLRB 324 (1979). As revealed supra, Respondent's Representatives Tanner and Silvio were the -individuals who processed Sage's grievance. While the General Counsel claimed Steward Tanner was "biting, aggressive, and openly hos- tile" when she appeared as a witness, I became con- vinced while listening to her testimony that she was a sincere individual who assisted Sage to the best of her ability both before and after Sage filed the grievance protesting her discharge. With specific regard to Sage's discharge grievance, I note that the record reveals that Tanner discussed the discharge with Sage during a 26- minute long-distance phone call (at Tanner's expense) on 6 ' June; that Tanner requested and inspected Sage's per- sonnel file on 7 June; that Tanner went to Sage's home on 7 June where they discussed the application falsifica- tion issue; that Tanner informed Sage she needed wit- nesses who could verify her claim that Snapp told her how to answer questions on the application; that Tanner, without argument, expeditiously supplied Sage with a 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievance form and with documents which enabled her to file her grievance; that Tanner expeditiously delivered copies of Sage's grievance to both the Union and to Re- spondent; that Tanner telephoned Sage twice during July to keep her apprised of the status of her grievance; and, finally, that Tanner attended the 30 July grievance meet- ing to assist in the presentation of Sage's grievance. Viewing Tanner's activities in Sage's behalf, I fmd a con- clusion that Respondent, through Tanner's conduct, in- vestigated Sage's grievance in a perfunctory manner is unwarranted. The claim that Silvio handled the 30 July 1984 griev- ance meeting in aperfunctory manner presents a closer issue. It is true, as contended by the General Counsel, that Silvio did not seek during that meeting to address the bumping issue. Contrary to the General Counsel's as- sertion, however, Silvio did seek and obtain the positions of Roberts, Snapp, and Sage on the falsification issue. Having previously set forth the contents of the docu- ments exchanged by the parties to the grievance and having summarized what was said by them during the grievance meeting, I see no need to engage in repetition here. Suffice it.to say that it is obvious that after reading the documents, inspecting the employee's employment application, viewing the 31 October 1984 note from the doctor, which Sage steadfastly claimed was submitted with her application, and hearing the denials expressed by Roberts and Snapp, Silvio concluded Sage had mis- represented her physical condition when she completed the application. In my view his conclusion was a reason- able one. Noting that the employment application specifi- cally indicates that "misrepresentations or omissions" on the application subject an employee to dismissal for cause, and that one of the assigned causes for Sage's dis- missal was her falsification of the employment applica- tion, I rind that Silvio did not act improperly when he decided and thereafter announced that Respondent would not take Sage's grievance to arbitration. Having concluded that the General Counsel has failed to establish that Respondent breached its obligation of fair representation, as alleged, I shall recommend dismis- sal of the complaint in its entirety. CONCLUSIONS of LAW 1. HLJ is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not, as alleged in the complaint, en- gaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed19 ORDER The complaint is dismissed in its entirety. 39 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be ,adopted by the Board and all objections to them shall be deemed waived for all pur- poses.