Hotel & Restaurant Employees Local 64 (Hlj Management)

National Labor Relations Board - Board Decisions

Feb 20, 1986

278 N.L.R.B. 773 (N.L.R.B. 1986)

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 verifed 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.