Local 471, Hotel, Motel Union

National Labor Relations Board - Board Decisions

Nov 28, 1972

200 N.L.R.B. 514 (N.L.R.B. 1972)

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 471, Hotel , Motel and Restaurant and Barten-
ders Union , AFL-CIO (Harry M. Stevens, Inc.)
and Jean E. Malandrino. Case 3-CB-1853
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
November 28, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 22, 1972, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative Law Judge: Upon a
charge filed on April 19, 1972,1 by Jean E. Malandrino, an
individual, the Regional Director for Region 3 of the
National Labor Relations Board, herein called the Board,
issued a complaint on June 9 against Local 471, Hotel,
Motel and Restaurant and Bartenders Union, AFL-CIO,
herein called the Respondent, alleging violations of Section
8(b)(1)(A) and (2) of the National Labor Relations Act, as
amended, herein called the Act In its duly filed answer to
the complaint, the Respondent, while admitting certain
allegations of the complaint, denied the commission of any
unfair labor practices. The hearing was held before me at
Albany, New York, on July 18 and 19, at which all parties
were afforded full opportunity to be heard, to introduce
relevant evidence, to present oral argument, and to file
briefs. Counsel for the General Counsel and the Respon-
dent presented oral argument but chose not to file briefs.
Upon consideration of the entire record, and upon my
personal observation of each of the witnesses as they
appeared before me, I make the following:
' Unless otherwise indicated, all dates are in 1972
2 Harry M Stevens, Inc, 169 NLRB 806
Harry M. Stevens, Inc., (herein called Stevens), a New
York corporation, with its principal office in New York
City, is engaged in the sale and distribution of food and
related products at facilities in various states of the United
States. Stevens' restaurant at Saratoga Raceway, located at
Saratoga Springs, New York, is the only facility involved in
this proceeding.
During the year preceding the issuance of the complaint,
Stevens sold and distributed products valued in excess of
$500,000. During this same period, Stevens shipped and
transported products valued in excess of $50,000 from its
place of business in New York directly to points in States
other than the State of New York and received goods
valued in excess of $50,000 transported directly to its place
of business in the State of New York from points outside
the State of New York. The complaint alleges, Respon-
dent's answer admits, and I find, that Stevens is and has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.2
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Respondent is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that Respondent, the bargaining
representative of Stevens' employees at Saratoga Raceway,
and the exclusive source of referrals for employment by
Stevens, in violation of Section 8(b)(1)(A) and (2) of the
Act, refused to refer Jean E. Malandrino, Marion Cornell,
and Grace Beatty for employment because said individuals
engaged in protected concerted activities. The complaint
further alleges that Respondent's business manager, Joseph
Diliberto, threatened employees by stating to them he
would not refer them for employment at Stevens' Saratoga
Raceway facility because they were troublemakers. The
Respondent's answer denies all unlawful activity.
B. Background
The Employer and the International Union, together
with its local affiliates have maintained a bargaining
relationship since at least 1948. The most recent contract
between the parties, national in scope, is from January 4,
1971, through December 30, 1973. The bargaining unit
covers all employees,3 with certain specified exclusions, at
thoroughbred racing tracks and harness tracks where the
International or one of its locals has been recognized as the
bargaining representative. Stevens' restaurant operation at
Saratoga Raceway, the installation involved herein, is one
of the facilities covered by the contract. The contract
3 Included in the unit are waiters and waitresses
200 NLRB No. 82
LOCAL 471, HOTEL, MOTEL UNION
includes a hiring hall referral provision. Article 8 of the
contract provides:
A. Within a reasonable time before the opening of
each meet, the Employer shall furnish the Union with
the names and/or numbers of regular crews desired to
be utilized.
B. All employees (regular and extra) who shall be
required by Stevens in the categories stated in Schedule
A shall be obtained from ajob referral system with the
local Union, which the local Union shall operate, in
compliance with the applicable laws, in order to
facilitate the employment of new employees, to insure
Stevens of a regular source of available skilled labor, to
assure culinary craft employees an efficient system of
locating employment and protecting job rights accrued
while in the employ of Stevens.
C. Stevens recognizes the local Union as a source of
skilled, competent, experienced craftsmen and appren-
tices and the Union in supplying applicants for
employment shall take into account only the appli-
cants' ability, experience, length of service in the
industry, and irrespective of whether such applicant is
or is not a member of the Union.
D. In the event that the local Union cannot furnish a
list of names of employees requested by Stevens within
72 hours of the request by Stevens, then Stevens may
engage such employees from other sources. Stevens,
within seven (7) days of the hiring of any employee
shall notify the local Union having jurisdiction at the
location of such employee's name, address, date of
employment and category of employment.
E. The aforesaid job referral system operated by the
local Union shall be the exclusive source of hiring
employees. Only such persons who have been referred
to it by the respective local Union and identified by a
referral slip issued by the referring local Union and
delivered to Stevens by the individual being referred,
shall be employed, except as hereinabove stated.
Although the Respondent denied in its answer that it is
the exclusive source of referrals, the provisions of the
contract quoted supra, and the referral practice described
infra, demonstrate the exclusiveness of the referral system
and I so find.
Article 8 further provides for a selection process based
on certain priorities. First in the order of selection are:
F. 1. Individuals in the order of seniority with Stevens
who, within twelve (12) months immediately preceding
the job order, have been employed by Stevens in the
same or related classification requested. Persons
employed as regular employees shall be so classified
and obtain seniority accordingly (provided they have
worked sixty (60) days in the preceding twelve (12)
months in each local jurisdiction).
4 Both waiters and waitresses are employed at this facility For
convenience and since the alleged dlscnminatees are women, any reference
to the group generally, will be to waitresses
5 Because of snow, the track did not open until April 15
8 For opening day, the restaurant employed a substantial number of
extras in addition to the basic regular crew because of an anticipated full
dining room
r The need was for only 12 on the dining hall floor at any given time but
two relief waitresses were also considered regulars because the waitresses
worked only 5 days and therefore employees were rotated
515
The three alleged discriminatees were not referred to
Stevens by the Union as regular waitresses at the opening
of the Saratoga Racetrack in April 1972 and it is this
failure to refer which resulted in this proceeding.
There are two categories of waitresses, regular and
extra.4 Regulars work 5 days a week and gain seniority
whereas extras normally work 3 days or less and do not
have any seniority. The testimony shows that each year,
within 2 weeks before the opening of the track, Stevens
reports to the Respondent the number of waitresses it
would need for opening day and the number of regulars it
wanted for the season. The Union furnishes the names of
the waitresses to be employed for opening day and also the
names of the basic crew of waitresses to be employed as
regulars for the season. As Eugene Strzesak, Stevens'
manager for the past two seasons, testified, the employer
has not concerned himself with whether the regular
waitresses were properly referred in the order of seniority;
its interest has been only whether they had worked
previously at the restaurant.
C. The 1972 Referrals
On April 8, Stevens' Manager Strzesak met with Joseph
Diliberto, Respondent's business agent, to discuss staffing
the restaurant with waitresses and other categories of
employees for the upcoming track season scheduled to
open on April 14.5 Both Strzesak and Diliberto testified
that 31 waitresses were ordered for opening day .6 But the
witnesses differed as to the number of regulars to be
furnished for the season. Strzesak, called as a witness by
the General Counsel, testified that he ordered 14 regulars 7
and 14 were supplied by the Respondent.8 He further
testified that he believed the same number of regulars were
employed at the beginning of the 1971 season. According
to Strzesak, although the 14 furnished by the Respondent
had worked in the 1971 season he was uncertain as to
whether they all had been regulars in 1971.9
Diliberto, on the other hand, testified that the total
number of regulars ordered by Strzesak for 1972 was 12.
Strzesak told him that because of operating costs, Stevens
was reducing the number of regulars to 12. Diliberto's
recollection was that there were 16 regulars in the 1971
season. Diliberto's testimony concerning the specific
individuals supplied to Strzesak as regulars for the 1972
season corresponded with that of Strzesak, except for Kidd
and Salmari10 whom he said were referred as extras."
Although the testimony is in conflict as to the number of
regulars employed in 1972 and in 1971, it is undisputed
that the three alleged discriminatees, Malandrino, Cornell,
and Beatty were regulars in 1971 but were not included
among the regulars referred by Respondent in 1972,
regardless of whether the total number was 12, as Diliberto
8 Strzesak stated that the 14 following named waitresses were furnished
by Diliberto as regulars for the 1972 season Bradley, Capone, Dominick,
Gross, Hurd, Kidd, Lambert, Manno, Marchione, Provo, Puorto, Ravena,
Salman, and Scarano
9 Strzesak was not asked specifically to name the waitresses who were
regulars in the 1971 season
10 See fn 8, supra
11 Extra waitresses, as distinguished from relief waitresses who were
considered regulars, were also furnished by Respondent at the beginning of
the season and on an as needed basis during the season
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified, or 14 as Strzesak recalled. I find it unnecessary to
resolve these discrepancies in numbers for the reasons
stated infra
Diliberto has been handling referrals to Stevens since
1948. He testified that seniority was the basis for his
selection of individuals as regular waitresses at Stevens'
restaurant Stevens did not maintain nor did it furnish to
the Respondent any seniority roster.12 To determine
seniority, Diliberto relied on information appearing on the
individual 's union card or his personal recollection of the
individual's status. This is how he determined who to refer
for the 1972 season as regulars. First preference was given
to those who were current in their dues, regardless of their
relative seniority. Gross was the only one in this category.
The remaining I 1 he referred were all suspended members
because of delinquency in dues and they were referred
according to their respective seniority , as he determined it
by the method described above.13 At the time he prepared
this list, he was of the opinion that the I1 all had more
seniority than Malandrino, Cornell, and Beatty who had
also been suspended because of dues delinquency. Accord-
ing to Diliberto, all those referred by him had been
regulars in the 1971 season. This stands uncontradicted. As
noted earlier, Strzesak was not certain whether they had all
been regulars in the previous season . He was not asked to
refer to payroll records for verification.
Considerable testimony was adduced regarding the
seniority of those referred by the Umon,14 and also of
Malandrino, Cornell, and Beatty I do not believe it
necessary to determine with any degree of accuracy
the seniority standing of each individual.15 Obvi-
ously, the method used by Diliberto was susceptible to
error. This was further demonstrated when, after the
instant charge was filed, he made inquiry of Stevens as to
the starting dates of a number of individuals. The
information received from Stevens, in some respects, did
not correspond to the dates shown on his union cards.
Moreover, it is questionable whether the seniority provi-
sions of article 8, Fl, cited above, were applied correctly. It
appears that Malandrino and Cornell and probably Beatty
had more seniority than one or more of those referred by
Respondent, e.g.,Marino, who Diliberto thought started in
1968 actually started in 1969. But this is hardly determina-
tive of the issue involved in this case . There is no issue in
this case with regard to the lawfulness of the employment
provisions of the contract or of the referral practice, as it
existed generally. The narrow issue to be determined is
whether Diliberto deliberately did not refer Malandrino,
Cornell, and Beatty because of their participation in
protected concerted activity in the prior season. This was
made clear by the General Counsel during the course of
the hearing and in his oral argument
On March 6, a local general membership meeting was
held. At this meeting, the members voted on a dues
12 This is corroborated by Strzesak
13 According to Diliberto , had the alleged discrimmatees been current in
their dues, which they were not, they would not have been considered
suspended and would have been referred ahead of the 11 he did refer
regardless of their lower seniority standing
14 Including Kidd and Salmari
15 A study of the oral testimony and the exhibits received would show
this to be guesswork to a large extent I cannot disagree with Respondent's
increase . Diliberto testified that at this meeting he also told
the membership he anticipated a cutback in personnel at
Stevens' restaurant for the 1972 season and not as many
employees would be working . 16 In past years, normally
another meeting , limited to Stevens' employees was held
shortly before the season opening but this year none was
held because Diliberto was out of town . Individuals were
informed shortly before the opening that they had been
referred.
On April 14, Malandrino, Cornell, and Beatty not having
received any notice of referral , came to the restaurant
where they were told by Anthony Stone, Respondent's
steward, they were not on the list to work. They then
inquired of Strzesak if he had requested their names be
taken off the list. He replied that he had not. The three
then went to the union office but Diliberto was not there.
That evening, Malandrino called Mike Shinas, Respon-
dent's president, to ascertain why they had not been
referred. Shinas said he didn't know but would check into
it and Malandnno was to call him the following day. The
next day, Shinas told her all he knew was that the three had
been suspended for nonpayment of dues and therefore
were not on the list. Malandrino protested that others were
likewise delinquent in dues and yet were referred . Shinas
said an executive board meeting was to be held the
following Tuesday, April 18 and he would find out more
details. At his request, she furnished him names of other
delinquent members. On Tuesday night , April 18 , accord-
ing to Malandnno , she met Shlnas who told her that the
executive board had decided to support Diliberto and that
they could not work because they were suspended for dues
delinquency; they would have to pay a reinstatement fee
and go to the bottom of the ltst.17 The following morning
she filed the instant charge.
In the meantime, on Monday, April 17, Cornell and
Beatty met with Diliberto at the union hall and inquired
why they were not on the list of regulars referred to
Stevens. According to Cornell and Beatty, Diliberto said
that technically , they were not referred because they were
delinquent in dues and were out of the union . According to
Cornell , when Beatty asked what the real reason was,
Diliberto "looked right at me and says, I'm tired of your
creating trouble ; you're nothing but troublemakers and he
said that no matter whenever he went up to the track, we
always complained about everything . If it wasn't the
silverware , the checkers , the busboys , the bathroom,
anytime I ever came up to the track , I always heard your
big mouth . . . . He said that no s.o.b . was going to run his
Union; he worked too hard for this Union and if Mr.
Morris got any idea there was trouble in the Union, the
Union would be out of the raceway." 18 Diliberto allegedly
also said that he had been looking to have something on
them (referring to the dues delinquency). After further
discussion regarding dues, they paid the $3 reinstatement
counsel who conceded that "Mr Dilibertojust did a sloppyjob of preparing
this seniority list "
is Corroborated by Cornell
17 Diliberto admits that Shmas did inquire and he told Shmas they were
not referred because they did not have senionty and had been suspended
Shinas did not testify
18 Morris is manager of the raceway The Union does not have a
bargaining relationship with the raceway
LOCAL 471, HOTEL, MOTEL UNION 517
fee and Diliberto said the executive board would have to
pass on their reinstatement and they would go to the
bottom of the seniority list.19 They were told to call his
office on April 19 to find out the results of the board
meeting. This was the last conversation they had with
Diliberto.
Diliberto 's version of this conversation is in sharp
conflict with that of Cornell and Beatty. Diliberto testified
that he told them they were not on the list because they did
not have seniority and had been suspended for nonpay-
ment of dues - 2 months in arrears and a member is
automatically suspended . He told them they could be
reinstated by payment of a $3 reinstatement fee which he
accepted from them. When they complained that others
had been referred who were also in arrears and had less
seniority , he said he would check into the seniority and let
them know . He specifically denied making any reference to
their being troublemakers , their complaints about the
working conditions at the restaurant , or that he had been
looking for an opportunity to get rid of them.
Malandrino testified she also had a conversation with
Diliberto, this on Wednesday afternoon , April 19. Her
testimony was that on that Wednesday morning she placed
a long distance call to Respondent 's union office in
Saratoga Springs from a public phone in Albany and left
word with the operator for Diliberto to return the call to
Cornell , Beatty, or herself at their homes. She said the call
was returned to her home that afternoon. Diliberto
purportedly repeated the same criticisms he had made 2
days earlier to Cornell and Beatty. Diliberto is reported to
have said he resented their going over his head to
management . 20 The record shows that she did not report
this conversation to her two confreres , Cornell and Beatty,
although they were at their respective homes all evening.
Diliberto denies having had any conversation with Malan-
drino.2i
The heart of the General Counsel 's case rests on the
alleged statements made by Diliberto to the three individu-
als. If their versions are to be credited , this lends
substantial support to a finding that they were not referred
because of their activities more fully described below. On
the other hand , without such favorable resolution, the
evidence falls far short of support for such theory. For
reasons appearing below, I credit Diliberto 's version of his
conversation on April 17 with Cornell and Beatty and also
credit his denial of any conversation with Malandrino on
April 19
Malandrino , Cornell , and Beatty had been employed as
regulars for several years; Malandrino and Cornell since
1968 and Beatty since 1969. Considerable testimony was
adduced by the General Counsel as to complaints they
voiced to management and the union representatives
regarding their working conditions . They complained at
times about the lack of ' silverware, insufficient checkers,
inept busboys, and poor bathroom facilities . The General
Counsel contends that - these complaints were protected
concerted activities and because of their participation in
such activities , Respondent refused to refer them. The
witnesses stated that whenever they registered complaints
to Stone , Respondent 's steward in the restaurant, they
received no satisfaction-all he would ever say was they
should quit if they didn ' t like it there . Malandrino referred
specifically to an incident where she complained strongly
to management about a busboy and she refused to allow
him at her station .22 Malandrino and Cornell also testified
about their attempts to improve the bathroom facilities in
the 1971 season. In this regard , the record shows that the
waitresses did not have access to the public bathroom until
6:00 p .m. when it was opened to the public. Waitresses
reported for duty at 4:30 p.m. and until 6 :00 the only
bathroom available to them was one which they considered
dirty and otherwise inadequate . Most all the waitresses had
complained to Strzesak , Stone , and Dihberto about this
but nothing was done . Finally in late July or August the
employees selected Malandrino to prepare a To Whom It
May Concern letter complaining about the bathroom
accommodations . She prepared such letter and, after
showing the letter and receiving approval from the other
girls, gave copies to Strzesak and Stone . The letter was
unsigned . Together with Cornell, she then saw Fitzimmons,
assistant general manager of the racetrack . She gave him a
copy of the letter and voiced her displeasure at the existing
bathroom condition . She testified that Fitzimmons was
very cordial and said he would check into it. Three days
later , Fitzimmons made the public bathroom available for
their use at 4:30 p.m.
Cornell testified that in the fall of 1971 several of the
waitresses including herself discussed electing Malandrino
as steward to replace Stone but this movement never got
beyond the discussion stage . The record does not reveal
any knowledge by Respondent of this aborted attempt to
replace Stone . It should be noted too , that the steward is
appointed by Respondent , rather than elected.
Although the record shows that the three alleged
discriminatees had registered complaints at various times
as described above , the record also discloses that all the
waitresses were constantly complaining about the lack of
silverware , the bathroom, etc.
Malandrino testified that all the waitresses complained
to Diliberto . She recalled complaining twice to him about
the bathroom but Diliberto said there was nothing he
could do about it. As Malandrino testified further on direct
examination:
Q. (Mr. Miller): Have you ever gone to perhaps
Mr. Stone, anyone from the Union, for any specific
reason ; to the Employer perhaps?
A. You know, like you can go down 15 times a
week with a complaint of some kind; I mean , I can't
say that I didn't go to the Employer with the complaint
because I probably did. There were a hundred times
when we were out of silver , 10 or 15 times when a bus
boy was playing cards somewhere when we needed
him.
Q. What happened to the silver?
19 Beatty substantially supports Cornell's version of what was said Saratoga Spring office most of the afternoon
20 This apparently referred to a bathroom complaint discussed below . 22 However , this occurred in the 1970 season Nonetheless she was
21 A statement from the telephone company (Resp Ex 17) does not referred in 1971
disclose any call to Malandrino 's home in N Chatham Diliberto was in the
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Many times there wasn't enough
Q. What did you do as a result of that?
A. We would go to Mr. Stone, who is our shop
steward, and he didn't get it and then we had to run to
the office.
Q Who is the we?
A. Any waitress on the floor, short of silver,
Marion or myself or Barbara, anyone that was there.
Barbara Kidd, called by the General Counsel, testified
the bathroom accommodations were a source of dissatis-
faction to all the waitresses and she herself had complained
to Stone.
Cornell testified that all the waitresses registered the
same complaints as she did. Beatty also testified regarding
registering complaints, even in prior years. As she stated
every year there were constant complaints by all the
waitresses.
I find it unnecessary to decide whether all of the
activities engaged in by the alleged discriminatees fall
within the sphere of protected concerted activity for, at the
very least, the efforts of Malandrino and Cornell to
improve the bathroom situation constituted protected
activity 23 As stated earlier, I have credited Diliberto and
find that he did not make the remarks to Cornell and
Beatty about their activities or that they had been
troublemakers. I also find that he had no conversation with
Malandrino on April 19. These conclusions are reached
after having observed the conflicting witnesses and having
taken into consideration other factors appearing in the
record Apart from the alleged remarks by Diliberto, there
is no evidence to show that Respondent, through Stone24
or Diliberto harbored any resentment or animosity towards
Malandrino, Cornell, or Beatty because of their com-
plaints. It appears that Stone supported, rather than
resented, the employees' efforts to improve the bathroom
facilities. Malandrmo testified on cross-examination that
when she presented a copy of the unsigned To Whom It
May Concern letter to Stone, he remarked that it was a
good letter and "he thought it was what we needed. His
23 The General Counsel would include Beatty as the three were known as
the Three Musketeers because of their close relationship-one for all and all
for one and thus the Respondent would have had them all accountable
24 1 find Stone was Respondent's agent despite Respondent's denial
Stone, an addition to being the steward on the job, is a member of the
executive board
21 It should be remembered that the bathroom activity took place in late
wife had to use the same facilities. . . . Mr. Stone said that
we should do what we thought was best as long as Mr.
Diliberto couldn't do anything." With respect to the
bathroom as well as the other complaints, the record
discloses that such complaints cropped up constantly and
all the waitresses voiced their displeasures, even in past
years. Yet, in past years, the three had been referred.
It would seem to me that during the course of the
1971 season, had Diliberto been annoyed at the activity
of the three in particular, he would have made his
displeasures known long before the 1972 season opening.25
But such did not occur. In arriving at the above findings, I
have not been unmindful of Respondent's position
regarding seniority and suspension for dues delinquency.
But whether Respondent improperly applied the seniority
or incorrectly decided on the suspensions is not for
me to resolve. The record as a whole does not estab-
lish that Respondent failed to refer Malandnno,
Cornell, or Beatty because of activities protected by the
Act Nor did Diliberto threaten them with loss of referral
to Stevens because of such activities. In view of the
foregoing findings, I shall recommend that the complaint
be dismissed in its entirety.
CONCLUSIONS OF LAW
I The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3 Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon all the foregoing, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended: 26
ORDER
It is hereby ordered that the complaint herein be
dismissed in its entirety.
July or early August 1971 and the season did not end until mid-November
26 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes