Hotel, Motel & Club Employees, Local 6

National Labor Relations Board - Board Decisions

May 9, 1967

164 N.L.R.B. 491 (N.L.R.B. 1967)

HOTEL, MOTEL & CLUB EMPLOYEES, LOCAL 6 491
Hotel , Motel & Club Employees Union
Local 6, Hotel & Restaurant Employees &
Bartenders International Union , AFL-CIO
(Domoc Corporation , d/b/a Hotel
Commodore) and Eli Mallah. Case
2-C B-4233.
May 9, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND ZAGORIA
On April 29, 1966, Trial Examiner A. Bruce Hunt
issued his Decision in the above-entitled proceeding,
finding that the Respondent Union had engaged in
and was engaging in certain unfair labor practices
and recommending that the Respondent Union
cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
Union and the General Counsel filed exceptions to
the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, 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 made by the
Trial Examiner and finds that no prejudicial error
was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's
Decision, the exceptions, the briefs, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner only to the extent consistent herewith.
This case involves the issue as to whether the
Respondent Union violated Section 8(b)(2) and (1)(A)
with respect to the part-time employment of
Eli Mallah as an extra bartender at banquets held at
the Hotel Commodore. In essence, the General
Counsel alleges that Respondent Union, by
Otilio Rodriguez, its agents and representatives,
made a demand upon Michael Egan, the Hotel
Commodore's banquet bar captain, that he refrain
from giving employment to Mallah because he was
not a member of the Respondent Union.
The record shows a hiring procedure by the Hotel
Commodore, pursuant to an understanding with the
Respondent Union, whereby the Commodore hires
employees for extra work as bartenders from the
ranks of regular bartenders, from a list of "extras,"
or through referral by the New York State
Employment Service, herein called NYSES. At the
end of March, Betty Bentz, general organizer of the
Respondent Union, instructed Rodriguez, who was
employed as a bartender at the Commodore and who
was also a department delegate for the Respondent
Union, to "police" the personnel at the Commodore
so that Rodriguez could provide her with information
regarding the functioning of the hiring procedure.
On April 7, upon learning that Mallah had filed
charges alleging a discriminatory denial of work on
April 3, Bentz called the NYSES and, as found by
the Trial Examiner, "made it clear that NYSES
should not refuse to refer Mallah to any hotel."
Bentz then called Albert Formicola, assistant
general manager of the Commodore, and again made
clear her position that union membership should not
be a factor in referrals by NYSES. Formicola
thereafter talked' to hotel employees, including
Egan, before the alleged discriminatory treatment of
Mallah by Egan in May or June 1965, and explained
the Commodore's hiring procedure, emphasizing the
fact that management alone made employment
decisions.
The Trial Examiner found that Rodriguez was an
agent of the Respondent Union. He reasoned that
department delegates are important elected
representatives in Respondent Union; that Bentz
asked Rodriguez to "police the personnel" for the
purpose of ascertaining the source from which the
Commodore obtained its extra bartenders; and that
Egan, a member of the Respondent Union, obviously
believed that Rodriguez' authority to police
personnel included the authority to demand that
Mallah not be rehired. We do not agree with this
finding.
As a department delegate, Rodriguez did not have
the authority to inject himself in employment
matters at the Commodore, and there is no evidence
that he had been clothed with such authority or had
the apparent authority to do so.' In any event, the
only testimony in this regard shows that, upon
receiving instructions from Bentz, as noted above,
Rodriguez informed Egan of Bentz' admonition that
neither Mallah nor anyone else was to work at the
Commodore except after referral by the NYSES.2
Subsequently, Bentz called NYSES and Formicola
as already detailed. This is the extent of the conduct
of Bentz and Rodriguez, and the conduct of Egan is
hardly attributable to the Respondent Union.
Therefore, we conclude that the General Counsel
has failed to sustain his burden of proof in this
matter for there is no basis in the record for finding
that the Respondent Union unlawfully caused
discrimination against Mallah. We shall, therefore,
dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
' As already noted, his "police" function meant
gathering information regarding the functioning of the hiring
procedure and Egan was even without knowledge that Bentz
delegated this limited responsibility to Rodriguez
2 Clearly, this is not unlawful causation under the Act in the
circumstances of this case
164 NLRB No. 65
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
CHAIRMAN MCCULLOCH, concurring in part and
dissenting in part:
I do not agree with my colleagues' dismissal of the
complaint. The Trial Examiner found that Rodriguez
was Respondent's agent and that Respondent
violated 8(b)(2) and (1)(A) when Rodriguez
successfully demanded of the Hotel Commodore
that the Charging Party, Eli Mallah, not be rehired.
The Trial Examiner also found that Respondent had
not taken prompt and sufficient steps to
countermand Rodriguez' action and was therefore
responsible for additional acts of discrimination
against Mallah on the part of the Commodore.
I believe that the Trial Examiner was correct in
finding that Rodriguez was Respondent's agent for
whose conduct in demanding that Mallah not be
rehired it was responsible. Rodriguez was employed
as a bartender at the Hotel Commodore. He was
elected as department delegate by his fellow union
members employed at the Commodore. According to
the Respondent Union's bylaws, a department
delegate is required "to cooperate with the vice-
president, business agents and officers of the Union
in the handling of grievances and in all other matters
in which their efforts can best serve the membership
of the Union." On March 30, 1965, Betty Bentz,
Respondent Union's general organizer, held a
conference with representatives of the Hotel
Commodore for the purpose of drawing up a list for
the hiring of extra bartenders for banquets. At that
time, Bentz told Rodriguez that he "should police
the personnel" and obtain "accurate information as
to who was working on any given occasion" so that
Respondent Union could know in what manner the
extra bartenders for banquets were being obtained.
Four days later Mallah sought work as a bartender at
the Hotel Commodore. He spoke to Michael Egan,
the banquet bar captain, who said that Bentz had
talked with Rodriguez and that Mallah had been
barred from work in the Hotel. At Egan' s suggestion,
Mallah spoke with Rodriguez who told Mallah that
he had been advised by Bentz that Mallah was an
expelled member of Respondent Union and
therefore could not work at the Hotel Commodore
anymore.
On this evidence, it seems clear to me that,
although selected by the employees, Rodriguez was
the Union's steward on the job.3 Further, that under
accepted agency principles, the Union was
responsible for his conduct in demanding that the
Commodore not rehire Mallah, even if he
misunderstood his instructions from the Union.
There are numerous Board and court decisions
which have held unions liable for conduct of
stewards similar to that of Rodriguez here on the
theory that the steward was acting within the scope
of his employment.4
Although I would find, in agreement with the Trial
Examiner, that Respondent Union was responsible
for the initial unlawful refusal to rehire Mallah, I
would not adopt the Trial Examiner's further finding
that Respondent Union did not take prompt and
sufficient steps to countermand Rodriguez' action.
The Trial Examiner did find that Bentz took such
effective disavowal action as to the NYSES, but not
as to the Hotel. I would find that the disavowal
action was effective as to both the NYSES and the
Hotel. On the very day that she spoke to the NYSES
representative to make it clear that the NYSES
should not be a factor in referrals by the NYSES. I
would find that this notice of no discrimination to a
high hotel official was adequate to absolve the Union
of further responsibility for discrimination against
Mallah.
Accordingly, T would direct the usual remedies for
the discrimination practiced against Mallah from on
and after April 1, 1965, to April 7, 1965, when Bentz
notified the NYSES and Formicola that union
membership should not be a factor in hiring Mallah
or other employees.
., Local 135, International Brotherhood of Teamsters (Capttal
Paper Company), 117 NLRB 635
" See, e . g , International Brotherhood of Teamsters, etc ,
Local 249 (Lancaster Transporatton Company), 116 NLRB 399,
enfd 249 F 2d 292 (C A 3), International Brotherhood of
Teamsters, Local 182 (Lane Construction Co.), 111 NLRB 952,
enfd 228 F 2d 83 (C A 2), Local 135, International Brotherhood
of Teamsters (Capital Paper Company), supra, Local 657,
International Brotherhood of Teamsters (Southwestern Motor
Transport, Inc), 115 NLRB 981,986
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. BRUCE HUNT, Trial Examiner. This proceeding, in
which the charge was filed on April 5, 1965, and the
complaint was issued on June 30, 1965, involves
allegations that the Respondent, Hotel, Motel & Club
Employees Union Local 6, Hotel & Restaurant Employees
& Bartenders International Union, AFL-CIO, violated
Section 8(b)(1)(A) and (2) of the National Labor Relations
Act, as amended. 29 U.S.C., Sec. 151, et seq.' On
November 15, 16, and 17, 1965, I conducted a hearing at
New York, New York, at which all parties were
represented by counsel. Upon the entire record and my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. DOMOC CORPORATION , D/B/A HOTEL COMMODORE
Domoc Corporation , a New York corporation, does
business in New York City under the name Hotel
Commodore . It is not a party to this case . Its annual
income exceeds $500,000 , and during 1964 it purchased
goods and materials , including food and beverages , valued
in excess of $50,000, which were shipped to it directly from
points outside the State of New York. During the same
i The caption of the case is hereby amended to correctly state
the name of the Respondent.
HOTEL, MOTEL & CLUB EMPLOYEES, LOCAL 6 493
year, the Commodore rented more than 25 percent of its
rental units to guests who remained less than 1 month, and
received more than 25 percent of its rental income from
such guests. There is no dispute, and I find, that the
Commodore is an employer engaged in commerce within
the meaning of the Act.
II. THE RESPONDENT
Hotel , Motel & Club Employees Union Local 6, Hotel &
Restaurant Employees & Bartenders International Union,
AFL-CIO, is a labor organization which admits to
membership employees of the Commodore.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issues are: (1) whether, about April 2,
1965, the Respondent, acting through its alleged agent,
Otilia Rodriguez, demanded of the Commodore that the
latter refrain from reemploying Eli Mallah, the Charging
Party, because Mallah was not a member of the
Respondent; (2) whether the Commodore complied with
the alleged demand; (3) whether, if Rodriguez made the
demand, the Respondent is responsible therefor; and
(4) whether the Respondent took prompt and sufficient
steps to countermand Rodriguez' alleged demand.
B. The Charging Party
Eh Mallah is a bartender who works irregularly for
various hotels in New York City.2 He worked at the
Commodore from time to time as an "extra" at banquets.
Mallah, who was a member of the Respondent at one time,
has had numerous controversies with it. He has opposed
the leadership of the Respondent and he has picketed the
Respondent's premises. He has also, as he testified, filed
several charges against the Respondent, but has lost all
the cases arising from such charges.
As will appear, the Respondent and the hotels with
which it has contractual relations use the services of the
New York State Employment Service (NYSES) as a hiring
hall for extra bartenders. During 1963, Mallah was referred
by NYSES to the Gotham Hotel. Later during that year,
upon perhaps a dozen occasions, that hotel hired Mallah
directly by telephoning him at his residence. After the
single referral by NYSES, the Respondent apparently
knew nothing of Mallah's subsequent hires by the Gotham,
and consequently the Respondent took no action to affect
Mallah's employment there until Mallah challenged the
Respondent to act. Mallah went to the union hall and said
to the Respondent's business agent that he was working at
the Gotham without having been referred by NYSES, and,
as Mallah testified, he also said, "How come you did not
knock me out of the Gotham yet? You have done it in
every other place. You haven't reached me yet at the
Gotham." The Respondent contacted the Gotham,
ascertained the facts, and said that Mallah's hire, not
having been through NYSES, was a breach of the
collective-labor agreement . The hotel agreed and
discharged Mallah, who promptly filed a charge against
the Respondent. It was dismissed by the Regional
Director.
During September 1964, Mallah was expelled from the
Respondent upon the ground that he had engaged in
disorderly and improper conduct by "kicking in" the office
door of a union official, that he had been warned for having
done so, and that thereafter he attacked a union guard at
the premises of the Respondent and had been convicted of
assault and disorderly conduct. On September 29, 1964,
soon after Mallah's expulsion from the Respondent, he
was discharged by the Park Sheraton hotel. He filed
charges against both that hotel and the Respondent. The
Regional Director dismissed the latter charge. The
Regional Director issued a complaint against the Park
Sheraton, however, and a Trial Examiner found that
Mallah had been invalidly discharged. Hotel Park
Sheraton Corp., Case 2-CA-10431, TXD-406-65. issued
on July 30, 1965. No exceptions were filed to the Decision,
Mallah's controversies concerning employment have not
been limited to hotels and the Respondent. Records of
NYSES recite that prior to February 15, 1965, Mallah had
made "accusations that the employment service had been
responsible previously for his being barred from some
hotels."
C. Chronology; the Respondent's Relations With the
Commodore; Mallah's Employment By That Hotel
The Hotel Association of New York City, Inc.,
representing various hotels, is a party to a collective-labor
agreement with New York Hotel Trades Council,
AFL-CIO, representing various labor organizations
including the Respondent. A part of the agreement
provides, in substance, that when time permits the hotels
shall hire new and irregular employees through NYSES.
On January 25, 1964, Mallah was employed by the
Commodore for 8 hours, having been referred by NYSES.
He was referred there again on August 13, 1964. During
September of that year, as already recited, Mallah was
expelled from the Respondent. On December 5, 12, and
19, 1964, Mallah worked for the Commodore a total of 24
hours, having been hired directly by Michael Egan, the
banquet bar captain.3
Commencing about January 1, 1965, representatives of
the Respondent and the Commodore began discussions
leading to the compilation of a list of extra bartenders who
would be offered work at banquets prior to any call by the
hotel to NYSES for the referral of bartenders. Testimony
concerning these discussions was given by Betty Bentz,
who was then a general organizer for the Respondent, and
Albert A. Formilcola, then the hotel' s assistant general
manager and earlier its personnel director. For reasons
that will appear, I do not credit Bentz' testimony fully, but
I have no reason to discredit Forimcola. He testified that
for years it had been the hotel's practice to offer
employment at banquets to the hotel's regular bartenders
and that, if additional bartenders were needed, to offer
employment to men who had worked regularly at
banquets, and, if still more bartenders were needed, to call
L At numerous places in the transcript , Mallah 's name is
spelled incorrectly Those errors are hereby corrected
' Mallah testified that sometimes Egan hired him when he went
to the hotel to obtain a paycheck for work on an earlier day.
Egan's testimony is that when he needed bartenders for banquets,
he proceeded in the following order until enough men had been
hired, he first offered employment to the hotel' s regular
bartenders, next, he telephoned men who had worked at banquets
in the hotel and whose names, addresses, and telephone numbers
he had, next, he called the office of NYSES, and, finally, if that
office was closed and he needed a man in an emergency, he called
any bartender who lived nearby and whose telephone number he
possessed. It is clear that during December 1964 Egan hired
Mallah without utilizing the services of NYSES.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NYSES. He testified further that beginning in the latter
part of 1964, largely because of changes in certain "key"
personnel at the hotel plus "a new representative" of the
Respondent "covering the hotel Commodore," it was
believed to be desirable to make a list of bartenders who
would be offered employment at banquets if men should
be needed after offers had been made to the hotel's regular
bartenders. Bentz testified that beginning about
January 1, 1965, she had discussions with representatives
of various hotels, including Formicola, W. E. Brill, the
Commodore's personnel director, and perhaps
J. Beckwith, the Commodore's food and beverage
director. She testified further that the discussions involved
the formulation of lists of extra bartenders and that the
Respondent's interest was in having unemployed
bartenders obtain work through being named on extra lists
or through referral by NYSES in order to assure that all
unemployed bartenders would have opportunities to work
as extras. Some lists were formulated, and the one in use
at the Commodore is described hereinafter.
On January 24 and 26, 1965, NYSES referred Mallah for
work at the Waldorf and, consistent with NYSES practice,
it promptly notified the Respondent of those referrals as
well as the referrals of other persons. On January 29 and
February 13 Mallah worked a total of 10 hours for the
Commodore, having been hired by Egan without referral
by NYSES. On February 15, according to the records of
NYSES, someone who identified himself as Egan
telephoned NYSES and talked with a Mrs. Kathrane. The
caller said that Mallah was continually asking for
employment and that the caller "wouldn't mind putting
him on sometimes" but that the caller was "not sure how
he stands with the union ." The caller asked whether
Mallah was "in good with them." Kathrane replied that
she "would rather that information came from the"
Respondent "in view of [Mallah's] accusations that
[NYSES] had been responsible previously for his being
barred from some hotels."4 Thereafter, Kathrane spoke
with a Mrs. Albano who is a liason representative of the
Trades Council to NYSES. Albano informed Kathrane that
she had not been told anything "officially" by the
Respondent but that she had heard that Mallah had been
"brought up on charges by the [Respondent] for
disturbance and property damage on one occasion."
On March 3 and 4, Mallah was referred by NYSES for
work at the Manhattan and Vanderbilt hotels,
respectively. As was customary, NYSES promptly notified
the Respondent of such referrals. On March 5, Beckwith,
the Commodore's food and beverage director, talked with
NYSES about Mallah, saying that Mallah worked well and
could be referred "anytime," and NYSES referred Mallah
to the Commodore for a few hours work. Also on March 5,
Beckwith prepared a memorandum for his superior, Brill,
with a copy to Formicola, under the heading "Extra
Bartenders," in which Beckwith listed the names of six
men, all of whom had been employed by the Commodore
prior to Mallah' s initial employment by that hotel. Mallah's
name was not on the list. Formicola testified credibly that
the list was formulated by management, based upon its
records; that the list was to be used in offering
employment to extra bartenders before calls by the hotel
to NYSES; and that the hotel notified the Respondent of
the list.
On March 11, Mallah worked a few hours for the
Commodore. He was not referred by NYSES on that
occasion. He may have been called in an emergency,
according to Formicola. On March 12, Mallah again was
referred by NYSES to the Commodore, and he worked
there on March 13 and 14. He spoke briefly with
Rodriguez, a bartender at the Commodore and one of
the Respondent's delegates there, who is alleged to have
caused the Commodore to discriminate invalidly against
Mallah about 3 weeks later. On March 13 or 14, when
Rodriguez noticed that Mallah was at work, Rodriguez
inquired whether Mallah had a referral card from NYSES.
Mallah replied that he did not have a card because he
had received a telephone call from NYSES and had been
directed to go to the Commodore immediately. According
to Mallah, his reply satisfied Rodriguez. On March 18,
NYSES agains referred Mallah to the Commodore and he
worked there on March 21. He also worked there on
March 26 and 27 without referral by NYSES, having been
employed to work on those days by telephone calls from
Egan or by talking with Egan when he went to the hotel
to receive pay for earlier work.
On March 30, Bentz, the Respondent's general
organizer who had conferred with representatives of the
Commodore concerning the formulation of a list of names
of extra bartenders for banquets, attended a cocktail party
at the Commodore. On or about that date, while at the
hotel, she talked with Rodriguez concerning the
employment of extra bartenders. Bentz testified that she
told him that the delegates should "police the personnel"
and give the Respondent "accurate information as to who
was working on any given occasion" so that the
Respondent would know whether extra bartenders were
being obtained from the ranks of the regular bartenders,
from the extra list, or from NYSES. Bentz denied that she
asked Rodriguez to take any action against Mallah.
Rodriguez was not a witness.
As Bentz was leaving the Commodore on March 30, she
happened to meet Mallah at the service entrance. He was
coming to receive wages due him. He said to Bentz
untruthfully that he was going to work at the Commodore
that evening.5 Bentz returned to her office and telephoned
Kathrane of NYSES, saying that she had met Mallah at the
Commodore and that he had said that he was reporting for
work after referral by NYSES. Kathrane replied that
Mallah had not been referred to any hotel on that day.
Bentz asked whether the Commodore had requested that
Mallah be referred at any time, and Kathrane answered in
the negative.
On or about April 1, Rodriguez, the Respondent's
delegate, talked with Egan, the banquet bar captain, about
Mallah. The record does not contain reliable, probative
evidence to establish fully what was said. Rodriguez was
not a witness. Egan's testimony as a witness for the
General Counsel is weakened because of variations
between it and an affidavit which he executed for the
General Counsel on April 8. Egan testified that Rodriguez
said that Rodriguez had talked with Bentz and that Bentz
' There is no evidence other than NYSES records that Egan
was the caller , and those records establish only that someone
claiming to be Egan made the call Egan testified that he did not
remember having made it.
' The finding that Mallah made such remark to Bentz is based
upon her testimony On the other hand, Mallah acknowledged
having seen Bentz at the hotel , but he denied that he spoke to her
of his employment at the Commodore I credit Bentz' testimony
because of her acts after she talked with Mallah and because I
believe that Mallah would have sought to provoke Bentz by having
her believe that he was reporting for work at the Commodore.
HOTEL, MOTEL & CLUB EMPLOYEES, LOCAL 6 495
had said to Rodriguez that she did not want Mallah "or
anybody else" to work at the Commodore except' after
referral by NYSES. On the other hand, Egan's affidavit
recites that Rodriguez told him that Bentz had said to
Rodriguez that "she didn't like Mallah working here in the
Commodore, and that Rodriguez had the right to pull
Mallah off the floor," to which Egan replied, "O.K."
Although Egan is a member of the Respondent and his
affidavit, an ex parte document, may not be used to
establish as fact the statements therein.
On April 2, perhaps the day on which Egan and
Rodriguez talked, the Commodore's personnel director,
Brill, wrote to the Respondent after talking with
Formicola. Brill's letter refers to "recent discussions
concerning employment of Extra Bartenders" by the hotel
and names seven men, "all of whom have been employed
at Hotel Commodore for a number of years," who "will
continue to be given first perference" before requests of
NYSES to refer bartenders. The men named in Brill's
letter coincide largely with those named in his
memorandum of March 5 to his superior, Beckwith, the
differences being that one name on the communication of
March 5, J. Schneider, was dropped, and two names,
J. Warde and G. F. Williams, were added. Warde's name
was added in discussions between representatives of the
Commodore and the Respondent. He was a full-time
bartender at the hotel and he faced a layoff because the
bar at which he worked was being closed. Williams' name
was added in like discussions because he was an elderly
man who had worked as an extra bartender at the
Commodore for several years, and the Commodore agreed
with the Respondent that Williams had not become too old
to work. Upon an undisclosed date, Williams' name was
stricken and Schneider's name was inserted in ink. All of
the eight men had first worked for the Commodore earlier
than Mallah had, and there is no evidence that the
Commodore considered naming Mallah in the
communication of March 5 or that of April 2; indeed, it is
reasonable to infer from Formicola's testimony that
consideration was not given to Mallah by the Commodore
and that the hotel had no improper motive.
On April 3, Mallah went to the Commodore seeking
work. He talked with Egan who told him that Bentz had
talked with Rodriguez and that Mallah had been barred
from work in the hotel. Egan suggested that Mallah talk
with Rodriguez.6 Mallah did so, and Rodriguez said that
Bentz had told Rodriguez that Mallah was an expelled
member of the Respondent. "Therefore," Rodriguez
continued, "you [Mallah] can not work here anymore."7
On April 5, the next business day, Mallah filed the charge
in this case. On April 6, someone who identified himself as
Egan called Kathrane at NYSES and said that he had been
notified officially by Bentz that Mallah was not to be
allowed to work at the Commodore because he was not a
member of the Respondent. The caller continued by
saying that he was relieved to have a reason to advise
Mallah that Mallah was not wanted at the Commodore,
that Mallah was becoming a nuisance, and that Mallah had
been "hanging around" daily demanding work and "trying
to stir things up."8 Following the telephone conversation,
Kathrane spoke of it to Albano, the liaison representative
of the Trades Council to NYSES. On the next day. Bentz
called Kathrane or vice versa. Bentz flatly denied having
said that Mallah was not to be allowed to work at the
Commodore because he was not a member of the
Respondent. Bentz said also that the Respondent could
not deny anyone the right to work, that union membership
was not a prerequisite for working in hotels, and that the
only "legal requirement" was previous experience in the
hotels of the city. The records of NYSES which are in
evidence leave no doubt that Bentz spoke emphatically to
Kathrane and made it clear that NYSES should not refuse
to refer Mallah to any hotel.9
On the same day, April 7, Bentz also talked with
Formicola, the Commodore's assistant general manager.
She telephoned him, but her testimony concerning her
reason for having done so is not entirely truthful. The
records of NYSES reflect that Bentz, in talking with
Kathrane, had said that Egan's action in telephoning
NYSES was "[a]n understandable and forgivable
misconception. He is only a bartender and I don't know
how he got mixed up in this." In this Decision reference
has been made up to now to only one man named Egan,
namely, Michael Egan, the banquet bar captain. There is
another Egan who is connected with the Commodore,
John C. Egan, its general manager during April and now
its president. Bentz testified that, as of the time of the
hearing, she had known Michael Egan for a period of 6
months to 2 years, but that as of April 7 when she talked
with Kathrane she did not know that he worked for the
Commodore. Consequently, according to Bentz, she
assumed that any call to NYSES on April 6 by someone
named Egan had been made by John C. Egan, and she
telephoned that Egan's subordinate, Formicola, to discuss
the matter. Formicola told her that he was confident that
the hotel's general manager would not have called
NYSES, and both Formicola and Bentz agreed that union
membership or the lack thereof should not be a factor in
referrals by NYSES. Formicola, a reliable witness,
testified for the Respondent that he was shocked by Bentz'
statement that John C. Egan was said to have telephoned
NYSES, that it was "unheard of [for the Commodore] to
"The findings concerning Egan's remarks to Mallah are
based upon the latter's testimony. Although Mallah's hostility
toward the Respondent is such that his testimony should be
scrutinized and evaluated with great care, I credit it in this
instance I point out, however, that Egan did not see or overhear
Bentz talk with Rodriguez, and that Egan's remark to Mallah
concerning Bentz is hearsay Turning to Egan's version of the
conversation, he testified that there was no work for Mallah on
that day and that he told Mallah that Rodriguez had said that
Bentz did not want Mallah to work at the hotel except after
referral by NYSES Egan testified also that he told Mallah to see
Rodriguez On the other hand, Egan's affidavit recites that Mallah
"came in that evening and asked about work There was no
banquet work that weekend I told him that I also told him that
Rodriguez had said he couldn't work here I sent him to speak to
Rodriguez."
T The findings concerning the conversation between Rodriguez
and Mallah are based upon the latter's uncontradicted testimony
Rodriguez was not a witness Mallah testified also that upon an
earlier occasion Rodriguez had told him that all extra bartenders
other than those on the extra list had to be referred by NYSES,
but that Rodriguez did not make that remark on April 3
"Egan, as a witness, did not deny or admit that he made the
call He repeatedly said, unconvincingly, that he could not
remember The Respondent sought by cross-examination of
Mallah to show that Mallah made the call That examination
showed only that upon April 6 or another date Mallah told
Kathrane that he had been barred from employment at the
Commodore Mallah denied having told Kathrane that he should
not be referred to that hotel Kathrane was not a witness
B It may be noted that the collective-labor agreement between
the Trades Council and the Hotel Association has a valid union-
security provision and that this provision does not bar the referral
of "extra" or temporary employees to hotels.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reject anyone for employment without having had some
previous discussion," that Formicola "blew [his] top" and
said to Bentz that it was "management's prerogative" to
determine who should be discharged, that Bentz was as
upset about the call to NYSES as he was, and that Bentz
said to him that such a call should not have been made.
On April 7, the day of Bentz' call to Formicola, the
Commodore received from the Regional Office a copy of a
charge in this case. On April 8, Oscar Gellman, counsel
for the General Counsel, called upon Formicola prior to
interviewing Michael Egan and obtaining an affidavit from
Egan. Gellman explained to Formicola that the
Commodore was not a respondent in the case, no charge
having been filed by Mallah against the hotel, and Gellman
also told Formicola that the charge arose from an incident
between Michael Egan and Rodriguez.
On or before April 10, Formicola held a meeting with
Beckwith, the hotel's food and beverage director, and
Michael Egan in order, as Formicola expressed it, "to
restate emphatically the policy of management with
respect to employment." Although Mallah was unknown to
Formicola, the latter specifically mentioned Mallah to
Beckwith and Egan. Both Beckwith and Egan said that
they had not rejected anyone, including Mallah, for
employment. Egan also said that he had not made the
telephone call to NYSES on April 6. Egan told Formicola,
however, that he had said to Mallah that Mallah could not
work at the hotel and that he had so understood from a
conversation with Rodriguez, but Egan did not tell
Formicola that Rodriguez had given any reason why
Mallah could not work there. Formicola, who believed that
management alone had the authority to decide who should
work for the hotel and that Rodriguez had no such
authority, asked Egan "on what authority" Rodriguez
would have made the statement that Mallah could not
work in the hotel, and Egan replied that he did not know.
Formicola advised Beckwith and Egan that the hotel
followed certain procedures in hiring extra bartenders for
banquets, namely, that first, the regular full-time
bartenders were utilized during their regular working
hours or on an overtime basis; that secondly, bartenders
on the extra list were ultilized; that thirdly, if enough
;bartenders had not been secured for a banquet, a call to
nyses would be made for additional men; and that finally,
NYSES would be made for additional men; and that
finally, in an emergency such as when the NYSES office
was closed, the hotel "would utilize anyone [it] could
find." 10
During April and thereafter, Mallah worked at a club
and at several hotels that were under contract with the
Respondent. He worked regularly at one for approximately
2 months. In some instances, he was referred by NYSES,
but he was not referred to the Commodore although,
during the period of April 2 to September 14, 11
bartenders were referred there upon requests by Michael
Egan.ii In one or two emergencies during May or June,
Egan telephoned an extra bartender, one McGittigan,
whose name was not on the extra list, and offered him
employment. Upon those occasions, Egan did not
telephone Mallah although, according to Egan, in
emergencies he always had telephoned Mallah first
because Mallah lived closer to the hotel than any other
bartender. 12
On September 18, a Saturday, Mallah worked 4 hours
for the Commodore, having been called by Michael Egan
on that day with the request that he work that night.
During October, Mallah worked for the hotel a total of 22
hours on 5 days, and at one point the transcript indicates
that he may have worked for the Commodore on a sixth
day during that month. He also worked on at least 1 day
November 14, which was the day before the hearing
began. Michael Egan testified that upon each such
occasion there had been an emergency which caused him
to hire Mallah. Egan testified also that neither Rodriguez
nor anyone else from the Respondent ever told him that
Rodriguez' remarks to him on or about April 1 concerning
Mallah were countermanded or were not to be followed.
D. Conclusions
The initial question involves the formulation of a list of
extra banquet bartenders who are offered work at the
Commodore prior to any call by that hotel to NYSES for
the referral of such bartenders. Similar lists are in use at
other hotels. The collective-labor agreement mentioned
above between the Hotel Association and the Trades
Council covers the period of June 1, 1962, to May 31, 1967,
and sets forth working conditions for various
classifications of hotel employees who are represented by
the Respondent and seven other labor organizations. The
agreement provides for lists of extra banquet waiters and
waitresses, but it does not specifically provide for lists of
extra banquet bartenders or other categories of banquet
employees. Nevertheless, lists of extra bartenders and
dishwashers for banquets have been formulated and there
is testimony that some hotels have had such lists for a
period of years before the effective date of the current
agreement. I find that the formulation of such lists,
particularly the list of extra banquet bartenders at the
Commodore, was valid. Surely the parties to the
agreement are not bound to a rigid interpretation of the
agreement throughout its 5-year term, but may by mutual
agreement formulate practices which are in the interest of
the parties so long as such practices are not invalid. Here
the Commodore's list of extra bartenders was formulated
initially by management with particular attention to
employees' length of service at that hotel. Two names
were added, one later to be dropped, in conferences
between the Commodore and the Respondent, and there is
10 The findings concerning Formicola's meeting with Beckwith
and Michael Egan are based upon Formicola's testimony
Beckwith was not a witness and Egan did not testify concerning
the meeting Formicola testified that he did not recall whether
Egan mentioned Bentz , and there is no evidence that Egan did
mention her Formicola testified further that he could not recall
whether he ever told Bentz of the conversation between Egan and
Rodriguez, that he had told her on April 7 that union
representatives had no right to determine discharges, that he was
not concerned in the matter after having his conversation with
Bentz and having restated management 's policy to Beckwith and
Egan, and that he did not think that it was within the hotel's
"jurisdiction to discuss with Miss Bentz any alleged behavior,
good or bad, on the part of her representatives "
11 Egan did not work at the Commodore from about June 15 to
August 11 Because no other supervisor of that hotel is alleged to
have denied employment to Mallah, it follows that there was no
discrimination against Mallah during that period
12 Egan also telephoned another bartender whose name is not
on the list, one Diaz, but Egan did not use Diaz' services at a
banquet upon those occasions The Commodore used Mallah's
services as an extra banquet bartender only
HOTEL, MOTEL & CLUB EMPLOYEES, LOCAL 6 497
no evidence that either of those parties sought to
discriminate against Mallah in the formulation of the list.13
The next question is whether the Respondent is
responsible for Rodriguez' conduct. As we have seen,
Rodriguez told Mallah that he had talked with Bentz who
had told him that Mallah had been expelled by the
Respondent. Rodriguez also told Mallah that the latter
could not work at the Commodore "anymore." Earlier,
Rodriguez had talked with Michael Egan, the banquet bar
captain, and Egan had told Mallah that Mallah had been
barred from work in the hotel. Rodriguez is a "department
delegate" at the Commodore, having been elected by
fellow union members who work there to serve as a
delegate for a period of 1 year. The Respondent's bylaws
provide:
It shall be the duty of the department delegates to
cooperate with the Vice-President, Business Agents
and officers of the Union in the handling of grievances
and in all other matters in which their efforts can best
serve the membership of the Union.
The bylaws also provide:
The Union membership of each [geographical]
district shall elect a Vice-President, Business Agents
and Assembly members, who, with the Department
Delegates, shall comprise the District Council which
shall be responsible to the members of the district.
... [T]he Business Agents of the district shall report
to the District Council on their work in the hotels and
motels within the district at each District Council
meeting. Subject to the approval of the Executive
Board and the Assembly, and District Council shall
be the governing body of the district....
There is testimony for the Respondent that Rodriguez
had authority to present minor grievances at a low level
and that he did not have authority, acting alone, to demand
the termination of anyone's employment. It is clear from
the above quotations, however, that delegates are
important elected representatives in the Respondent. In
addition, Bentz asked Rodriguez to "police the personnel"
in order, so she testified, to give the Respondent
information to enable it to determine the source from
which the Commodore obtained its extra bartenders. But
Michael Egan, a union member, obviously believed that
Rodriguez' authority to police personnel included
authority to demand that Mallah not be rehired. I find that
Rodriguez was the Respondent's agent for whose conduct
the Respondent is responsible.
The above discussion dictates the conclusion that the
Respondent attempted to cause the Commodore to
discriminate invalidly against Mallah, and that the
Respondent thereby violated Section 8(a)(2) and (1)(A) of
the Act. The question remains, however, whether the
Respondent took prompt and sufficient steps to
countermand Rodriguez' action and to assure that Mallah
would not be rejected for employment under the hiring
procedure laid out by Formicola to Michael Egan and
Beckwith on or about April 10. I am satisfied that, insofar
as referral by NYSES is concerned, Bentz took such steps
in her conversation of April 7 with Kathrane. Her remarks
to Kathrane were unequivocal. The argument that the
steps were insufficient is that NYSES thereafter referred
11 bartenders to the Commodore, but did not refer Mallah.
There is, however, no evidence that NYSES refrained
from referring Mallah to the Commodore after Bentz'
conversation with Kathrane. Insofar as appears , Mallah
may not have been in line for referral to the Commodore,
under whatever procedure NYSES follows, upon any of
the dates that the 11 men were referred to that hotel. I
cannot infer that an agency of the State distrusted and
rejected Bentz' assurances that the law should be obeyed.
With respect to the Commodore, however, we have a
different situation . While it is true that Bentz' remarks to
Formicola were clear and that Formicola thereafter spoke
clearly to Michael Egan, Bentz knew when she called
Formicola that the Egan involved was Michael Egan, a
union member , not John C. Egan, the Commodore's
general manager . Too, as an officer in the Respondent
since 1942, Bentz was sophisticated in union matters. She
must have realized that Michael Egan had not acted on his
own initiative , but had been approached by Rodriguez. Yet
the record does not reflect that anyone within the
Respondent who is superior to Michael Egan or Rodriguez
ever spoke to either of those men in an effort to
countermand Rodriguez' statement to Egan that Mallah
could not work for the Respondent again.14 The
Respondent argues that Bentz' call to Formicola was all
that the Respondent need have done, particularly in view
of Formicola's directions to Egan. But Egan did not follow
Formicola's directions. Upon one or two occasions during
May or June, Egan Telephoned McGittigan when the extra
list had been exhausted and there was insufficient time to
seek the services of NYSES. Formerly, Egan had
telephoned Mallah in such situations because Mallah lived
closer to the hotel than any other bartender. As a union
member, Egan has loyalty to the Respondent. As a
witness, he was obviously unhappy to have been called to
testify against his union and he gave untruthful testimony.
It is reasonable to infer that Egan , in hiring McGittigan
instead of Mallah, was motivated by loyalty to, or fear of,
the Respondent and that he continued to follow Rodriguez'
direction. I find that the Respondent caused and
attempted to cause the Commodore to discriminate
invalidly against Mallah and that the Respondent thereby
violated Section 8(b)(2) and (1)(A) of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act. I shall
recommend that the Respondent (1) notify the
Commodore in writing, with a copy to Mallah, that the
Respondent has no objection to the employment of Mallah
by the Commodore or any other employer, and (2) make
Mallah whole for any loss of pay he may have suffered as a
' i As has been recited, during 1963 the Respondent objected to
Mallah 's having obtained employment at the Gotham without
referral by NYSES, and Mallah 's charge against the Respondent
was dismissed at the regional level According to the Respondent,
that case differs from the instant one because the Gotham is a
small hotel which does not have a list of extra bartenders During
1965, a general manager of that hotel wrote to counsel for the
General Counsel that the Gotham' s "list of extra banquet
bartenders is not kept in written form, all of our bartenders are
considered when we have a banquet and we make our choice from
among those bartenders available for a specific date "
i' In oral argument , counsel for the Respondent asserted that
his client was unaware of Rodriguez ' conduct It is true that
Rodriguez is not named in the charge His is named in the
complaint , however, and it was issued on June 30, 1965
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
result of the Respondent's having caused the Commodore
not to hire him after April 1, 1965, by payment to him of a
sum of money equal to that which he normally would have
earned at the Commodore from the date of the
discrimination against him to a date 5 days after
notification by the Respondent to the Commodore and
Mallah as provided above, the payment to be computed on
a quarterly basis in the manner established in N.L.R.B. v.
Seven-Up Bottling Co., Inc., 344 U.S. 344, with interest at 6
percent per annum , Phillip Carey Manufacturing
Company v. N.L.R.B., 331 F.2d 720.15
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is a labor organization , and the
Commodore is engaged in commerce within the meaning
of the Act.
2. By causing the Commodore to discriminate invalidly
against Mallah , the Respondent has engaged in and is
engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (b)(2) and (1)(A) and
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and pursuant to Section 10(c) of the
Act, I hereby recommend that Hotel, Motel & Club
Employees Union Local 6, Hotel & Restaurant Employees
& Bartenders International Union, AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease and desist from;
(a) Causing or attempting to cause Hotel Commodore to
refuse to hire an employee in violation of Section 8(a)(3) of
the Act or otherwise to discriminate against employees or
applicants for employment in violation thereof.
(b) In any like or related manner restraining or coercing
employees or applicants for employment in the exercise of
the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify Hotel Commodore and Eli Mallah that the
Respondent has no objection to the employment of Mallah,
in the manner set forth in "The Remedy."
(b) Make Mallah whole for any loss of pay, as set forth
in the section of this Decision entitled "The Remedy."
(c) Post in conspicuous places in all its offices and
union halls, including all places where notices to its
members are customarily posted, copies of the attached
notice marked "Appendix."16 Copies of said notice, to be
furnished by the Regional Director for Region 2, after
being /duly signed by the Respondent's representative,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for at least 60 consecutive days
thereafter. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered,
defaced, or covered by any material.
(d) Promptly after receipt of unsigned copies of said
notice from the Regional Director, return to him signed
copies for posting, Hotel Commodore willing, at all places
where notices to that hotel's employees are customarily
posted.
(e) Notify said Regional Director in writing within 20
days from the receipt of this Decision, what steps the
Respondent has taken to comply herewith.17
15 Backpay is limited to the occasions when Mallah was
unemployed and would have been working at the Commodore
absent the discrimination against him
Is In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
1' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF HOTEL, MOTEL & CLUB
EMPLOYEES UNION LOCAL 6
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Hotel
Commodore to refuse to hire any employee because
he is not a member in good standing of Local 6.
WE WILL NOT cause or attempt to cause any
employer to discriminate against any employee in any
way that violates the National Labor Relations Act.
WE WILL pay Eli Mallah the amount he lost in
earnings as a result of our having caused Hotel
Commodore not to hire him as a bartender.
WE WILL notify Hotel Commodore that we do not
object to Mallah's working for any employer.
HOTEL, MOTEL& CLUB
EMPLOYEES UNION LOCAL 6,
HOTEL& RESTAURANT
EMPLOYEES& BARTENDERS
INTERNATIONAL UNION,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 5th Floor,
Squibb Building, 745 Fifth Avenue, New York, New York
10022, Telephone 751-5500.