Cooks and Assistants Local No. 33

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 415 (N.L.R.B. 1970)

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