Birmingham Country Club

National Labor Relations Board - Board Decisions

Oct 19, 1972

199 N.L.R.B. 854 (N.L.R.B. 1972)

854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Birmingham Country Club and Bloomfield Open Hunt
Club and The Detroit Club and Hotel , Motel and
Restaurant Employees Union , Local 705, Hotel, Mo-
tel and Restaurant Employees and Bartenders ' Inter-
national Union, AFL-CIO and Winton Blackwell.
Cases 7-CA-9103(1), 7-CA-9103(2), 7-CA-
9103(3),' and 7-CB-2515
October 19, 1972
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
On April 28, 1972, Administrative Law Judge 2
Thomas S. Wilson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent Un-
ion filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
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 Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
1 The three aforementioned cases were settled prior to the hearing, and,
consequently, are not involved herein
2 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner: Upon a charge duly
filed on November 15, 1971, by Winton Blackwell, an indi-
vidual, herein called the Charging Party, the General Coun-
sel of the National Labor Relations Board, herein referred
to as the General Counsel I and the Board, respectively, by
the Regional Director for Region 7 (Detroit, Michigan),
issued its consolidated complaint dated January 4, 1972,
1 This term specifically includes the attorney appearing for the General
Counsel at the hearing.
against Hotel , Motel and Restaurant Employees Union,
Local 705, Hotel , Motel and Restaurant Employees and
Bartenders ' International Union , AFL-CIO , herein re-
ferred to as the Respondent.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting com-
merce within the meaning of Sections 8(b)(1)(A) and (2) and
2(6) and (7) of the Labor Management Relations Act, 1947,
as amended , herein referred to as the Act.
Respondent duly filed its answer admitting certain alle-
gations of the complaint but denying the commission of any
unfair labor practices.
Pursuant to notice a hearing thereon was held in De-
troit, Michigan , on March 2 , 1972, before me. All parties
appeared at the hearing , were represented by counsel, and
were afforded full opportunity to be heard , to produce,
examine and cross-examine witnesses , and to introduce evi-
dence material and pertinent to the issues . At the conclusion
of the hearing oral argument was waived . Briefs were re-
ceived from General Counsel and Respondent on April 14,
1972.
Upon the entire record in the case and from my obser-
vation of the witnesses , I make the following:
FINDINGS OF FACT
I BUSINESS OF THE EMPLOYERS
Birmingham Country Club, Bloomfield Open Hunt
Club, and The Detroit Club are corporations duly organized
under, and existing by virtue of, the laws of the State of
Michigan. Each maintains its principal office and place of
business in or near the City of Detroit, Michigan, where
each is engaged in the operation of a private club providing,
among other things, a restaurant, bar, and related services
for its members. During the fiscal year ending September
30, 1971, which period is representative of its operations
during all times material herein, each club, in the course and
conduct of its business operations, provided and performed
at its place of business services valued in excess of $500,000
and, during this same period of time, each club purchased
and received at its place of business alcoholic beverages
valued in excess of $50,000 from the Michigan Liquor Con-
trol Commission, located in the State of Michigan, which
liquor had been received by the Michigan Liquor Control
Commission from sources directly located outside the State
of Michigan.
It is admitted and, accordingly, I find that each club is
now, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6)(7)
of the Act.
II THE RESPONDENT UNION INVOLVED
Hotel , Motel and Restaurant Employees Union, Local
705, Hotel, Motel and Restaurant Employees and Bar-
tenders' International Union, AFL-CIO, is a labor organi-
zation admitting to membership employees of the clubs
heretofore mentioned.
199 NLRB No. 131
BIRMINGHAM COUNTRY CLUB
III THE UNFAIR LABOR PRACTICES
A. The Facts
At all times material herein, Local 705 was a signatory
to a contract with The Detroit Club, Bloomfield Open Hunt
Club, and Birmingham Country Club, among other such
establishments, which contained the following pertinent
provisions:
Section 3 Employee hiring. In order to facilitate the
employment of necessary help and to assure qualified
employees of an efficient system of locating employ-
ment and insure the club of a regular source of avail-
able employees, each of the Unions agrees to operate
a job referral system in a nondiscriminatory manner for
employees within their jurisdiction. All persons who
are referred to the club by their respective Unions shall
be identified by job referral slips issued by the referring
union and delivered to the club by the individual being
referred except as hereinafter provided.
It is understood and agreed by the Unions that the
operations of said job referral systems shall be on a
nondiscriminatory basis and in accordance with the
following terms, conditions and standards:
(a) The club shall call the offices of their respective
Unions for additional employees and for replacements
in the job classifications covered by this agreement.
(d) All extra employees in the job classifications
covered by this agreement shall be hired in the manner
above provided using the job referral systems operated
by the Unions, provided the Unions are able to furnish
them.
Also at all times material herein, Winton Blackwell, the
Charging Party here, has been and still is a member of the
Local 705 and has been and still is employed by the three
clubs aforementioned as an "extra" or "lineup" waiter. An
"extra" or "lineup" waiter is one who is called in to work
special parties, dinners , or events as distinguished from a
regular waiter who has a steady position in a restaurant or
club. Extras are called in only for special events as they
occur.
As an extra, during the year 1971, Blackwell was re-
ferred by the employment office in the union hiring hall in
accordance with the union's policy of "equalization"
whereby the Union tried to refer each of the extras to ap-
proximately 15 engagements per month. Blackwell knew of
this policy and, during his testimony, volunteered the fol-
lowing:
A. First of all, not being employed in the Union,
I don't know whether they made the attempt or not
because there are many people who feel that had at-
tempted-that attempt wasn't made.
A. The policy was that they tried to give each
person 15 jobs a month for insurance purposes. This
again, is my imagination, because I don't know.
s s s •
855
s
Q. Do you know as a fact, Mr. Blackwell, employ-
ees securing their own job, what effect that has on the
equalization policy when the Union doesn't know?
A. Well, some would get more work than others,
I imagine.
Also during the year 1971, at least, Blackwell devel-
oped a propensity for securing or "booking" his own jobs
without reference to the Union. This he accomplished by
calling the various headwaiters at the clubs and asking if
they had ajob for him or else these same headwaiters would
call Blackwell and arrange for him to serve at some function
at the club. Sometimes the headwaiter or Blackwell would
clear this booking with the Union and sometimes they
would not. Blackwell testified that during this period he was
averaging two or three engagements per week at each of the
three aforementioned clubs. The Union knew about some
of these engagements but some of them they did not know
of, especially as Blackwell frequently received his check for
services rendered at the club involved and not through the
Union.
The union contract provides for payments of 40 and 45
cents per hour for each hour an extra works into the union
health and welfare and pension funds. Periodically the Un-
ion checks its referral orders against these insurance pay-
ments. When these two accounts do not jibe it becomes
obvious that all extras are not being referred through the
union employment office.
When these accounts get out of balance, Myra Wolf-
gang, the secretary-treasurer of Local 705 and its head exec-
utive officer, will order the business representatives to
check. About August or September Wolfgang ordered
Union President Mort Furay to check up with three named
extras, Blackwell, McRipley, and Withers who were sus-
pected of booking themselves without umon knowledge.
Thereafter Furay spoke with McRipley and straight-
ened out the matter.
On September 28, 1971, Furay saw Blackwell picking
up some checks at the union dispersing office.' Furay re-
quested Blackwell to see him in his office. Blackwell refused.
Furay thereupon went to the employment office across the
hall and, in Blackwell's hearing, ordered Spinks, the em-
ployment manager in charge of referrals, to take Blackwell's
name off the referral list and not to refer Blackwell again
until Blackwell conferred with Furay. Blackwell left the
union hall purportedly because he had to get to the dog
pound to get a shot for his dog.
Spinks followed these orders and thereafter did not
refer Blackwell again until December 15, 1971.
2 The usual practice is that the clubs will send payment checks to the union
office where the extras will pick up the checks belonging to them. In
Blackwell's case he testified that at The Detroit Club, for example, he usually
picked up his hourly wage check at the club immediately after the party
involved but sometimes would receive his gratuity check at the union hall the
following week unless he happened to again be employed at the club on the
day the gratuity checks were being sent to the Union In that event he would
also pick up his gratuity check at the club. Somewhat the same procedure was
followed at the other two clubs involved.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This actually did not bother Blackwell very much be-
cause he acknowledged that during the month of October
he succeeded in booking himself into engagements at The
Detroit Club on 10 or 12 occasions at least.
On November 11 Blackwell again telephoned Head-
waiter James Pryor of the Birmingham Club for an engage-
ment and was booked for a 6 p.m. dinner date for
November 12. Blackwell had already booked himself to
work a lunch at The Detroit Club on November 12 which
he had also booked on his own without the knowledge of
the Union.
On the evening of November 11 Business Representa-
tive Peggy Lukacs, having heard rumors that Blackwell and
another extra named Withers were booking their own en-
gagements in clubs under her jurisdiction, went out to the
Bloomfield Club and asked a steady waiter there if these
two extras had been working at the club. After receiving an
affirmative answer, Lukacs ordered that thereafter all extras
were to be booked through the Union.
Lukacs then went to the Birmingham Club where she
inquired of Maitre d' Pryor if he was using extras and, if so,
if they were being booked through the Union. Pryor's an-
swer was, .,occasionally." The union shop steward who was
standing by admitted that he knew that extras were being
booked at the club without being referred through the union
hall. Lukacs then told them both, "Not from now on." Pryor
acknowledged that he had booked Blackwell and some oth-
er extras for the next evening, November 12, without having
gone through the union hall. In characteristic style Lukacs
retorted, "All are to be booked through the Union from now
on." Lukacs left the club after telling Pryor that "all extras
were to be booked through the union hall according to the
terms of the contract."
When Blackwell reported at The Detroit Club for his
November 12 luncheon engagement, Maitre d' Calvin
Young inquired as to what was wrong because he had heard
from Pryor that Blackwell was not supposed to work ac-
cording to the Union. Young also relayed the information
to Blackwell that the Birmingham Club did not want Black-
well to report for work the evening because of the informa-
tion which Lukacs had given them the evening before.
Young then telephoned to Spinks at the union hall and
inquired about the matter. Spinks told Young that Black-
well was not supposed to work until he had seen Furay and,
in addition, that he had no orders for extras that day from
The Detroit Club. Young relayed this information to Black-
well and informed him that he could not work at Detroit
that day either.
Thus Blackwell worked neither at The Detroit Club nor
the Birmingham Club on November 12.
About December 12 Blackwell telephoned Spinks ask-
mg for a December 15 appointment to see Furay. On De-
cember 15 the appointment was kept. They talked about the
equalization program and booking through the union office
in accordance with the existing contract. Some sort of an
amicable arrangement appears to have been reached be-
tween the two, although there seems to have been some
disagreement as to just what that arrangement was.
After the conference Furay had Spinks put Blackwell's
name back on the extra list and since that date the Union
has been referring Blackwell as usual.
B. Conclusions
As note heretofore, the evening before the hearing in
the instant case the three clubs settled their dispute to the
satisfaction of the Regional Director so that the case as
presented and heard before me only involves the dispute
between Blackwell and Local 705.
As such the instant case is a pure intra-union squabble.
The complaint against the Union alleges that the Un-
ion violated Section 8(b)(1)(A) and Section 8(b)(2) which
read as follows:
Section 8(b): It shall be an unfair labor practice for a
labor organization or its agents-
(1) To restrain or coerce (A) employees in the
exercise of the rights guaranteed in Section 7: Provid-
ed, that this paragraph shall not impair the right of a
labor organization to prescribe its own rules with re-
spect to the acquisition or retention of membership
therein;
(2) To cause or attempt to cause an employer to
discriminate against an employee in violation of sub-
section (a)(3) or to discriminate against an employee
with respect to whom membership in such organization
has been denied or terminated on some ground other
than his failure to tender the periodic dues and the
initiation fees uniformly required as a condition of ac-
quiring or retaining membership.
It is quite true that, when Blackwell refused to confer
with Furay about his practice of booking engagements with
various employers on his own, Furay ordered that the Un-
ion no longer refer Blackwell under the hiring hall clause of
the collective-bargaining agreement existing between the
Union and the clubs at least until Blackwell conferred with
Furay on the matter. It is also true that on November 11
Business Representative Lukacs ordered the employers that
thereafter they were to hire extras only through the union
referral hall in accordance with the terms of that collective-
bargaining agreement. It is also true that on November 12
both The Detroit Club and the Birmingham Club cancelled
previously made bookings with Blackwell because of Lu-
kacs' insistance that thereafter all extras were to be hired
through the union hall in accordance with the terms of the
collective-bargaining agreement in existance.
In his brief the General Counsel states that these ac-
knowledged events prove a "clear" violation of the sections
of the Act cited above. I cannot agree.
A collective-bargaining agreement between an employ-
er and a union binds not only the signatory parties thereto
but also the individual members of the Union.'
Thus, when Blackwell commenced soliciting or accept-
mg bookings through personal contacts with the headwait-
ers at the various clubs without going through the union
employment office as required by the existing collective-
bargaining contract, Blackwell, as well as the employer
clubs, was in violation of the existing contract. Blackwell, as
a member of the Union or as one who was, when it was
convenient for him, taking advantage of the services of the
Union's nondiscriminatory hiring hall, was not only breach-
ing a contract binding upon him but was also deliberately
3 See Kellogg Company v. N L R B, decided March 22, 1972 (C A. 6)
BIRMINGHAM COUNTRY CLUB 857
taking advantage of his fellow union members and those
who, like himself , were making use of the union 's employ-
ment office for their engagements . Thus Blackwell was play-
ing both sides of the street for his own personal advantage.
As soon as the Union discovered that Blackwell was
consistantly breaching the collective -bargaining agreement
to which both he and it were bound , by making his own
bookings in total disregard of the hiring hall clause of that
contract and to the detriment of his fellow union members,
the Union sought to force Blackwell , as a union member to
live up to his commitment under that agreement as well as
his commitment as a union member . This the Union had a
perfect right, if not the duty to its other members , to do. The
doctrine of fair representation required no less from the
Union. To knowingly permit one-or three-members to
breach the existing contract to the decided disadvantage of
all other union members would convict the Union of unfair,
invidious representation of its members.
Through Furay the Union sought to correct Blackwell's
breach of the contract and injustice by talking the matter
over with Blackwell . Blackwell refused . Furay thereupon
ordered Employment Manager Spinks to take Blackwell's
name off the union referral list at . least until Furay had the
opportunity to talk Blackwell into abiding by the existing
contract and play fair with his fellow union members. The
Union was not "discriminating" against Blackwell for any
exercise of Section 7 rights which Blackwell had . Looked at
realistically , Blackwell 's only complaint here is that the Un-
ion was depriving him of an unfair advantage which he had
acquired for himself by breaching the existing contract by
booking his own jobs without reference to the union hinng
hall whereas the other extras were abiding by that referral
agreement to their detriment . Such an unfair advantage
cannot be classified as a Section 7 right. Certainly the Union
had the right to expel or suspend Blackwell from member-
ship for deliberately breaking the existing collective-bar-
gaining agreement for his own personal benefit under the
proviso of Section 8(b)(1)(A).
To the employing industry the Union, through Busi-
ness Representative Lukacs , required that it also live up to
the terms of the existing agreement by hiring only through
the Union employment office as the collective-bargaining
agreement required . Here also the Union was policing its
agreement for the benefit of all its members , perhaps with
the exception of Blackwell . By so policing its agreement on
November 11, the Union was not causing or attempting to
cause the employer "to discriminate" against Blackwell "in
order to encourage or discourage union membership." The
Union was forcing the employers to abide by the existing
agreement and hire extras only through the union hinng hall
as required by the parties' agreement.
However the General Counsel in his brief argues as
follows:
ANALYSIS AND CONCLUSION
Respondent-Union's claim that Blackwell refused
to discuss the referral matter with Furay on September
28, 1971 is clearly without merit . For the record specifi-
cally discloses that Blackwell was not told and had no
idea of what Furay wanted to discuss ,4 and surely de-
clining to speak with Furay on an unspecified matter,
when others were waiting for Blackwell , could not jus-
tify the Union's conduct.
We are thus left with Respondent -Union 's remain-
mg reason for its conduct , i.e. because , in the Union's
view, Blackwell had in the past violated the contract by
obtaining work by himself rather than via the Union's
referral system . The question then becomes , if Black-
well had in the past violated the contract as contended
by the Union, does this justify Respondent -Union's
conduct in causing Blackwell 's discharge from various
Employers , or in refusing to refer him to available
work . The answer is that such conduct is not justified
and clearly violates the Act. The case law indicates that
a union cannot impose such sanctions. For, although
"a union may be within its rights in seeing to it that an
employee on a job holds that job in accordance with a
valid referral agreement , when , however, it seeks to
remove an employee from a job because of a past in-
fraction of the referral agreement , having nothing to do
with his present employment, then it is seeking to apply
punitive sanctions rather than merely seeking enforce-
ment of the referral agreement"5 Local Union No. 18,
International Union of Operating Engineers , AFL-CIO,
141 NLRB 512, 519.6 And although a union may be
able to discipline a member for past infractions, said
discipline must not affect the right of the member to
secure or retain a job . But, violating this principle, Re-
spondent-Union did - from September 28, 1971 to De-
cember 15 , 1971 mete punishment, not for present
infraction (for the September 29, 1971 job at the
Bloomfield Open Hunt Club had been cleared with the
Union) 7 but for past infractions , and by doing so viola-
ted the Act.
It is axiomatic that a part of a union's duty is to police
its collective -bargaining agreements . In cases where those
agreements contain exclusive referral clauses , as here, it
becomes incumbent on the Union to police not only the
request even after hearing Furay order Blackwell's name off the referral list;
the patently weak excuse Blackwell gave for this action at the hearing, i e,
his children were waiting in the car and his dog had to get a shot, and his
subsequent obstinate continuation of that refusal to confer even knowing
that his name was off the list and he was not being referred , as well as
Blackwell 's knowledge of his own illegal booking arrangements , that, even
though Furay did not specify the subject matter of the proposed conference,
Blackwell well knew what the subject matter was to be
5 The above quotation then continued as follows-
This is not to say that the Union may not still discipline its member for
his past infraction , but whatever internal sanctions are imposed (e.g.
fine, suspension , expulsion), these must not affect the right of the mem-
ber to retain his job.
6 This is the only case cited by General Counsel. It is inapposite as shown
by the Trial Examiner's concluding paragraph, as short formed by the Board,
which reads as follows
For all of the foregoing reasons, I find the preponderance of evidence
supports the allegation in the complaint that Respondent caused the
discharge of Paul Lewis because he was a member of a group that was
opposed to, and sought to unseat, the incumbent union leadership and,
hence, that Respondent thereby violated Section 8(b)(2) and (1)(A) of
the Act
Hence the above quotation is, at best, dicta only and inapplicable to the
instant case for the reason that here there was no intervening political moti-
vation . The instant case deals solely with the member 's breach of the referral
system.
7 Even if we accept the testimony to this effect by Blackwell, there is no
dispute but that Blackwell's bookings for November 12 were both obtained
4 An inference arises, here drawn, from Blackwell 's curt refusal of Furay's in violation of the referral agreement.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actions of the employers but also those of its own members
and others using the hiring hall. Here the Union policed
both when it became obvious that the referral system was
being bypassed.
The method used by the Union here was to talk to the
parties at fault. In this it was successful with the employers
and, apparently, with at least one member, McRipley.
The method chosen proved ineffectual with Blackwell
through no fault of the Union. In his brief General Counsel
states that from September 28 to December 15 the Union
"did-mete punishment" to Blackwell for his past breaches
of the agreement. If Blackwell was, in.fact, "punished" as
General Counsel would lead us to believe, then he has no
one to blame therefor except himself because of his own
adamant refusal to confer with the Union about his own
continual breaching of the referral provisions as he well
knew the Union desired to do and because he possibly
believed he could do better financially by continuing to beat
the system as he had been doing. Under the circumstances
the method adopted by the Union to police its contract was
legitimate-and considerably less drastic than a fine, sus-
pension, or expulsion would have been.
Therefore I here conclude that, in the instant case, the
Respondent-Union was merely legitimately policing and
enforcing the terms of a valid collective-bargaining agree-
ment against both the employers and Blackwell as it had not
only the right but the duty to all its members to do.
Consequently, I recommend that the complaint herein
be dismissed in toto.8
8 In the event no exceptions are filed as provided by Sec 102.46 of Rules
and Regulations of the National Labor Relations Board , the findings, con-
clusions, 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