Motel, Hotel & Club Employees' Union Local 568

National Labor Relations Board - Board Decisions

Mar 2, 1961

130 N.L.R.B. 1069 (N.L.R.B. 1961)

MOTEL , HOTEL & CLUB EMPLOYEES ' UNION LOCAL 568 1069
WE WILL NOT engage in surveillance of the union or other concerted activi-
ties of our employees.
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor organi-
zations, to join or assist the above -named Union , or any other labor organi-
zation , to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose 'of collective bargain-
ing or other mutual aid or protection , and to refrain from any or all such
activities.
WE WILL offer Joan Mitchell immediate and full reinstatement to her former
or substantially equivalent position , without prejudice to her seniority or other
rights and privileges previously enjoyed , and will make Joan Mitchell and Mar-
cella Foley whole for any loss of pay suffered by them as the result of the
discrimination against them.
All our employees are free to become or remain , and to refrain from becoming
or- remaining , members of the above -named or any other labor organization.
CARROLL EGG COMPANY, INC.,
Employer.
Dated----- -------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Motel , Hotel & Club Employees ' Union Local 568, AFL-CIO
[Sheraton Corporation of America ] and Emanuel Tirado.
Case No. 4-CB-613. March 2, 1961
DECISION AND ORDER
On November 15, 1960, Trial Examiner Sidney Sherman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Respondent and the Gen-
eral Counsel filed exceptions to the Intermediate Report, together
with supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing, and, finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record,'
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, except as modified herein.2
I We agree with the Trial Examiner ' s finding that possible unlawful hiring practices on
the part of Respondent have not been adequately litigated in this proceeding , and are not
here in Issue , and we therefore find no merit in the General Counsel's exceptions relating
to such practices We also deny Respondent ' s motion to reopen the record, as evidence of
settlement negotiations , and the other matters contained in Respondent 's motion are not
relevant to this proceeding . Cf. Brown and Root, Inc., et at ., 99 NLRB 1031, footnote 2,
enfd in part 203 F 2d 139 (C.A. 8).
2 We adopt the Trial Examiner 's finding that Respondent violated Section 8(b) (2) and
(1) (A) In causing Tirado's discharge for discriminatory reasons. However , we note that
Tirade's tender of dues, as found by the Trial Examiner and adopted herein, occurred
130 NLRB No. 115.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Motel, Hotel &
Club Employees' Union Local 568, AFL-CIO, its agents, officers, rep-
resentatives, successors, and assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause Sheraton Corporation of
America to discriminate against Emanuel Tirado, or any other em-
ployee, in violation of Section 8(a) (3) of the Act.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of their rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized by Section 8 (a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Make Emanuel Tirado whole for any loss of earnings he may
have suffered because of the discrimination against him, in the man-
ner set forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Notify Sheraton Corporation of America immediately, in writ-
ing, that Respondent has no objection to the reinstatement of Tirado,,
and requests Sheraton Corporation of America to offer Tirado imme-
diate and full reinstatement to his former or substantially equivalent
position, and simultaneously serve a copy of such notice and request
upon Tirado.
(c) Post at Respondent's offices and meeting halls in Philadelphia,,
Pennsylvania, copies of the notice attached hereto marked "Appen-
dix." 3 Copies of such notice, to be furnished by the Regional Director
for the Fourth Region, shall, after being duly signed by an authorized
representative of the Respondent, be posted immediately upon receipt.
thereof, and be maintained by it for a period of 60 consecutive days:
thereafter, in conspicuous places, including all places where notices to
its members are customarily posted. Reasonable steps shall be taken
prior to Respondent 's request for his discharge , and we do not, therefore , find it necessary
to consider whether a tender of dues after a request for discharge would also be timely.
International Union of Electrical , Radio and Machine Workers , AFL-CIO, Frigidaire-
Local 801 ( General Motors Corp ., Frigidaire Division ), 129 NLRB 1379, particularly
footnote 7. Moreover , since we base our finding of a violation on Aluminum Workers-
International Union, Local 135, AFL ( The Metal Ware Corporation ), 112 NLRB 619,
enfd . 230 F. 2d 515 ( C.A. 7), as applied in the General Motors case , supra, we see no.
reason to speculate as to Respondent's actual reasons for requesting Tirade's discharge,
and we do not adopt the Trial Examiner ' s comments and conclusions in this regard.
3In the event that this Order is enforced by a decree of a United . States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
MOTEL , HOTEL & CLUB EMPLOYEES' UNION LOCAL 568 1071
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Promptly mail to said Regional Director signed copies of the
Appendix for posting, the Company willing, at Sheraton Hotel,,
Philadelphia, Pennsylvania.
(e) Notify the Regional Director for the Fourth region, in writ-
ing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER JENKINS took no part in the consideration of the above.
Decision and Order.
APPENDIX
NOTICE TO ALL MEMBERS OF MOTEL, HOTEL & CLUB EMPLOYEES' UNION'
LOCAL 568, AFL-CIO, AND TO ALL EMPLOYEES OF SHIERATON HOTEL,
PHILADELPHIA, PENNSYLVANIA
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause Sheraton Corporation
of America to discriminate against Emanuel Tirado, or any other
employee, in violation of Section 8 (a) (3) of the Labor Manage-
ment Relations Act, as amended.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed by Section 7
of the aforenamed Act, except to the extent that such rights may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by-
Section 8 (a) (3) of that Act, as modified by the Labor lI anage-
ment Reporting and Disclosure Act of 1959.
WE WILL make Emanuel Tirado whole for any loss of pay he
may have suffered as a result of the discrimination against him.
WE WILL notify Sheraton Corporation of America that we have
no objection to the employment of Emanuel Tirado, and we will
request Sheraton Corporation of America to offer him immediate
and full reinstatement in his former or substantially equivalent
position, and will serve , him with a copy of such notice and
request.
MOTEL, HOTEL & CLUB EMPLOYEES' UNION
LOCAL 568, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material..
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
This proceeding was heard in Philadelphia, Pennsylvania, on September 14, 1960,
upon the complaint of the General Counsel and answer of Motel, Hotel & Club
Employees' Union Local 568, AFL-CIO,' hereinafter sometimes called the Respond-
ent. The issue litigated was whether the Respondent violated Section 8 (b) (1) (A)
and (2) of the Act by causing the discharge of the Charging Party. The Respondent
and the General Counsel filed briefs after the close of the hearing.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
Sheraton Corporation of America,2 hereinafter called the Company, is a Delaware
corporation engaged in the business of operating hotels throughout the United
States, including a hotel at Philadelphia, Pennsylvania, known as Sheraton Hotel,
Philadelphia, Pennsylvania, hereinafter called the Sheraton. That hotel, during the
year ending April 1, 1960, grossed more than $500,000 and more than 75 percent
of its patrons were transients who stayed at the hotel for less than 30 days. During
the same period that hotel received goods valued in excess of $50,000 which were
shipped to it from points outside of Pennsylvania. I find that the Company is
engaged in commerce and that it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent violated Section 8(b) (1) (A) and (2)
of the Act by causing the Company to discharge Tirado on May 16, 1960, for
reasons other than his failure to tender the periodic dues and initiation fees uni-
formly required as a condition of membership in the Respondent. The answer
admits that the Respondent caused Tirado's discharge, but asserts that it did so
because of his failure to tender the periodic dues uniformly required as a condition
of membership in the Respondent, and that such conduct of the Respondent was
authorized by its contract with the Company. There was submitted in evidence a
copy of that contract executed on December 31, 1958,3 with a termination date of
September 30, 1960, which contains a clause to the effect that "all employees
covered by" the agreement shall, as a condition of employment "on or after the
30th day following the date of their employment or the date of the agreement,
whichever is later, become and remain members of" the Respondent. The General
Counsel does not attack the validity of this contract .4
The record also contains a letter from the Respondent to the Sheraton, dated May
9, 1960, requesting Tirado's discharge because of his failure to meet "his financial
obligations."
The sole issue is therefore whether Tirado discharged the obligation imposed on
him by the contract with respect to acquiring or retaining membership in the
Respondent.
Tirado had been a member of Respondent for several years until August 1958,
when he transferred to a sister local, Local 111.5 Late in 1959, he decided to
seek employment in Puerto Rico, and on December 2, 1959, he obtained from Local
111 a "traveling card," which under the International' s constitution , entitled him,
for a period of 60 days after issuance of such card, to transfer his membership to
1 The Respondent 's name appears as amended at the hearing.
The name of the Company appears as amended at the hearing.
a While the effective date of the contract is not specified therein, the General Counsel
does not dispute the applicability to the instant case of the union-shop clause in the con-
tract. Accordingly , I take it to be conceded that the contract was in effect at all times
here material.
4 In his brief , the General Counsel for the first time contended that the contract was
rendered invalid by certain hiring practices thereunder As this issue was not adequately
litigated , I do not pass thereon.
8 The parent union of both locals was then designated as Hotel & Restaurant Employees
and Bartenders International Union.
MOTEL, HOTEL & CLUB EMPLOYEES' UNION LOCAL 568 1073
another local of the same International without payment of a new initiation fee .6
Tirado returned from Puerto Rico in January 1960, still a member of Local 111,
and on January 28, 1960, obtained employment as an "extra" or intermittent employee
at the Sheraton. On February 19, 1960, he acquired the status of a full-time em-
ployee, and, in accordance with the usual practice of the Company, he was on about
that date referred by the personnel manager of the Sheraton to Local 568 to obtain
a "work card." The purpose of such referral was to put Local 568 on notice that
Tirado was an employee of the Sheraton, so that the local could police effectively
the 30-day union-shop clause in its contract. On February 23, Local 568 issued
a "work card" to Tirado, which he brought back to the Sheraton's personnel manager,
thereby apprising him that Tirado had made the necessary contact with Local 568.
So far there is no dispute. However, as to what action Tirado took thereafter
to comply with the union-shop clause in Local 568's contract, Tirado and the Re-
spondent's sole witness, Timperio, gave conflicting testimony.
Tirado testified that when he was referred by the Sheraton to Local 568 for a
work card, he showed his December 1959 "traveling card" to a young lady in the
local's office,7 who gave him an appointment to meet with the local's examining
committee 8 on a date in March not specified in the record, and in the meantime
she advised him to see Timperio, one of the local's organizers,. about the traveling
card; that a few days later Tirado saw Timperio at the local's office and showed him
the traveling card but Timperio told him the card was no longer valid (referring
presumably to the fact that it was good only for 60 days from the date of its issue
on December 2, 1959); that about a week later Tirado went to. Local 111; which
issued him a new traveling card upon the payment of a month's dues to that local; 9
that when he reported thereafter 10 for his appointment with the examining com-
mittee, he showed his new card to Timperio, who told him he would have to get still
another traveling card; that on April 8 Tirado went to Local 111 and obtained a
third traveling card upon payment of a month's dues; that about a week later, when
he showed the new card to Timperio, the latter stated that he (Timperio) "would
have to see the boss"; that, when Tirado returned about a week or two later and
inquired about his case, Timperio professed ignorance of the entire matter; that
Tirado then went back to Local 111 with a request for still another traveling card,
but Local 111 refused to issue one at that time, maintaining that the one last issued
was valid; that on May 6, he tendered a month's dues together with his union book,"
to a clerk in the office of Local 568,12 but she refused to accept the dues, telling
him he would have to see Timperio; that he made several fruitless efforts to see
Timperio; and that about a week later the personnel manager at the Sheraton asked
him why he had not paid any dues to Local 568 whereupon he explained the efforts
he had made to join the local and pay his dues.
Timperio testified that he is an organizer for Local 568 and that during 1960 he
had no authority with respect to the approval of transfers of membership to Local
568, that being the function of that Local's secretary-treasurer; 13 that in late Febru-
ary or early March 1960, he had seen Tirado working at the Sheraton and told
him to get "straightened out" with Local 568, but had never talked to him at the
office of Local 568 about a traveling card, and, in fact, had never seen him at the
8 See article XI, section 4, of the International's constitution, which waived such fee
where, as was true in Tirado's case, the bearer of the traveling card had been a member
of the local issuing the card for 1 year.
7 His physical description of the young lady corresponded to Timperio's own description
of one of the local's clerical employees who handled dues payments.
8 According to Timperio, the function of this committee was to explain to applicants
for membership in the local their various benefits under the local's contracts, to obtain
their signatures on Blue Cross, insurance, and checkoff forms, and notify them of the
local's meeting dates. Timperio testified further that all transfers had to be approved by
the committee but that the committee never rejected any requests for transfers.
8 Tirado testified that this occurred in March. However, for reasons stated below,
I find that this card was issued on February 29.
10 Tirado identified the date as "some time in March."
"This book showed all dues payments made by Tirado to Local 111.
'z Tirado identified this clerk as the same young lady as is referred to at the outset of
his testimony, as summarized above.
's Timperio also testified, however, that the approval of transfers was the function of
the examining committee (see footnote 8, above) and that the local's secretary-treasurer
was a member of this committee, as was Timperio, himself, on occasions.
597254-61-vol. 130-69
1074 DECISIONS : OF NATIONAL' LABOR RELATIONS BOARD -
-local's office; that he did not know whether Tirado had tendered dues to one of- the
local's clerks on May 6, 1960. .
However, Tirado's version of his contacts with Timperio is partially corroborated
by Panzarella, who was a coworker of Tirado's at: the Sheraton and a member
and former steward of Local 568. Panzarella• testified that about 6 months' prior
to the instant hearing -namely, in March 1960-he accompanied Tirado to the
office of Local 568; that Tirado told him he was "trying to. get straightened out with
the union," and showed Panzarella a piece of paper which Tirado referred to as a
"transfer card"; that, while the two were sitting together in the office of the local;
Timperio approached within 15 feet from them and called Panzarella into his private
office. Timperio admitted that he had seen Panzarella at the local's office on that
occasion, but steadfastly denied seeing Tirado there at that time or any other time 14
Before resolving the conflict in the foregoing testimony, it may not be amiss. to
consider what portions of Tirado's testimony are undenied. It is not denied that
on February 23, when he obtained his work card from Local 568, Tirado showed
his December traveling card to a clerk in the office of the Local and she told him to
see Timperio about the traveling card, nor that he tendered a month 's dues to the
same clerk on May 6. There is no dispute, moreover, that Tirado paid dues, to,
Local 111 on Decomber 2, 1959, and on February 29, March 25, and April 8, 1960,
and that he received a traveling card on the occasion of each of those payments-
except the March 25 payment.15 As noted above, under the International' s consti-
tution, and as Timperio, himself, conceded, upon presentation of any one of these
traveling cards within 60 days after its issue , Tirado was entitled to be accepted as a
member of Local 568, without payment of initiation fees. Thus, the tender of a
valid transfer card was, in the context of this case, tantamount to an application
for membership in Local 568 accompanied by a tender of initiation fees.
It, accordingly, becomes necessary to determine whether Tirado properly pre-
sented the February or April traveling cards to Local 568. The Respondent con-
tends, in effect, in its answer that such cards were not presented at all . In addition,
there are two other possible contentions , not articulated by the answer, but which
will nevertheless be considered. These are that, even if the February or April
cards were presented to Timperio, this was not an adequate tender to Local 568
because (1) Timperio had no authority to approve transfers , this being the function
of the secretary-treasurer or the examining committee , and (2 ) such tender was
not timely, as it was not made within the 30-day period prescribed in the Re-
spondent's contract with the Sheraton.16
These three issues will be considered seriatim:
1.. Was there a tender to Timperio?
Tirado's testimony that he had submitted the various traveling cards to Timperio,
and the latter's denial thereof, are set forth above. Both witnesses were guilty of
some overstatement, finding it necessary to modify under cross-examination testi-
mony previously given. However, Timperio was forced to admit that his recollection
as to one incident 17 had been refreshed by Tirado's testimony. Moreover, Tim-
perio's attitude on the stand appeared to be more guarded and less candid than
Tirado's. On essential points Tirado's testimony was not shaken by cross-
examination . Moreover, he was partially corroborated by Panzarella, who, as a
member and former steward of Local 568, had no discernible interest in testifying.
for Tirado and against the local.
Moreover, the circumstantial detail of Tirado's version of his encounters with.
Timperio lends it a flavor of authenticity, the more so when one considers the im-
probability that a man with Tirado's limited intellectual endowments could fabricate
such a narrative.
14 Timperio stated that he would have recognized Tirado had he seen him. Tlnsperlo
bad had prior contacts with Tirado In connection with an organizing campaign.
15 Tirado at first testified that he received a traveling card in March, as well, but later
admitted inability to recall whether this was the case. In this regard, the records of
Local 111 show only that cards were Issued on the December, February, and April dates.
Accordingly, I find that none was Issued in March, and that the first card which Tirado
testified he obtained after Timperio allegedly rejected the December card was the one
Issued in February.
10 In Its brief to the Trial Examiner, the Respondent places principal reliance on this
last contention.
17 Relating to Tirade's request for a union button. However, Timperio asserted that
this request was made at the Sheraton, and not, as Tirade claimed, at the Respondent's
office.
MOTEL, HOTEL & CLUB EMPLOYEES', UNION-LOCAL"568 1075
Finally, the Respondent suggests no ulterior motive,. and none is suggested by.the
record, for Tirado's persisting in paying dues to, and obtaining traveling cards from,
Local 111, after his employment at the Sheraton with full knowledge that Local 568
.had jurisdiction. there.18 There is no evidence or contention that Local ill's dues
were lower than those of Local 568 or that Tirado had any other reason to prefer
membership in Local 111 to membership in Local 568. The only plausible ex-
planation offered for Tirado's undenied dues payments to Local 111.. is that con-
tained in his version of his interviews with Timperio.
For all the foregoing reasons, I credit Tirado and find that about February 25,
1960, Tirado presented to Timperio the traveling card of December 1959 which
Timperio rejected; that Tirado on February 29 obtained a new traveling card from
Local 111 and in March showed it to Timperio, who told him he would have to
get still another card; and that, upon Tirado's return about the middle of April
with the April 8 card,.Timperio temporized and finally professed ignorance of the
entire matter.
2. Timperio's authority.
As already stated, Timperio testified that during the period here material he had
no authority to approve applications for transfer of membership to Local 568.
Assuming this to be the case, I find nevertheless that. the Respondent is estopped to
deny Timperio's authority to act on Tirado's various tenders. Absent any contrary
testimony, I find that Tirado on February 23, when he made his first contact with
Local 568, presented his December traveling card.to a clerk in the local's office and
that she told him to see Timperio about it. This clerk was concededly authorized
to receive dues payments, to determine from the local's records the membership
status of persons tendering dues, and to refer applicants for membership by transfer
or otherwise to the individual or individuals authorized to pass upon such appli-
cations. Accordingly, I find that her advice to -Tirado to consult Timperio about
his traveling card was within the scope of her authority, and, as Tirado relied upon
such advice to his detriment, the Respondent is now estopped to plead any lack of
power in Timperio to act on Tirado's request for a transfer.19 I find therefore that
Timperio's rejection of the February and April traveling cards was binding on the
local.
3. Timeliness of tender
Under Local 568's contract "all employees covered" thereby are required to join
the local "on or after the 30th day following the date of their employment."
[Emphasis supplied.] Literally construed, this clause, which follows the Act ver-
batim, would permit an employee to join at any time after 30 days from his
employment.29 However, as such construction would render the clause meaningless,
I read that clause as requiring membership on the 30th day after employment. It is
not clear, however, as of what date such period began to run in the case of Tirado-
whether from date he was hired as an "extra" by the Sheraton (January 28) or
from the date that he became a full-time employee (February 19). There is some
suggestion in the contract that "extras" were not considered to be "employees
covered" by the contract 2I In its brief to the Trial Examiner, the Respondent takes
the position that the 30-day period did not, in fact, begin to run until February 19.
In any case, I find, for reasons stated below, that it has not been shown that Tirado
is Such knowledge was necessarily acquired when Tirado on February 23 was sent by
the Sheraton's personnel manager to Local 568 for a working card. Moreover, the record
indicates that when Tirado was hired by the Sheraton he was put on notice of Local 568's
union-shop contract with that hotel.
19 The record is not clear as to whether Tirado ever appeared before the examining
committee or the secretary-treasurer of the local , both of whom were, according to
Timperio, authorized to approve traveling cards. However, even if one assumes ( taking
the view most favorable to the Respondent)' that Tirado did not appear before them,,
thereby failing to exhaust his rights within the local, such nonappearance would be
excused -by the fact that Tirado, absent any advice to the contrary, could' reasonably have
construed Timperio's rejection of the February, and April traveling cards as 'final action
of the local.
20 While Section 8(a) (3) of the Act uses the same "on or after" language, it presumably
means only that a union-security clause may specify a period longer than 30 days. There
is, of course , no such specification here. Cf. Keystone Coat, Apron & Towel Supply
Company, at al., 121 NLRB 880.
21 See article XIII of the contract, referring to two separate wage schedules, one
applicable to "employees covered hereby" and one applicable to "extra employees.."
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made a valid application for membership within the grace period , whether it ran
from January 28 or February 19.
As found above, the traveling card tendered to Timperio on February 25, 1960,
had been issued on December 2, 1959, for a period of 60 days only, and had
therefore expired by its terms on February 1, 1960. He next applied for member-
ship in Respondent by presenting the card issued on February 29, which card was,
I find , valid. However, that application was not made until an unspecified date
in March . If it be assumed that the 30-day period began to run on January 28,
any application in March would clearly be untimely. Even if the grace period
began to run on February 19, the burden of proof would be on the General Coun-
sel to show that the application was made not later than 30 days from February
19, 1960 , namely, March 20. The evidence adduced does not preponderate in favor
of such a finding . Accordingly, I find that an application for membership within
the time required by the contract has not been established. However, the Board
has uniformly held to be timely an application or tender made at any time before
discharge.22 The question arises therefore whether there was here an adequate
application for membership and tender of dues and initiation fees before Tirado's
discharge on May 16. In March and again in April, an application was made by
Tirado for membership in Local 568, in the form of a tender to Timperio of the
two valid traveling cards. Any concurrent tender of initiation fees was waived by
the International's constitution, as found above. While no concurrent tender of
dues was made in March, such tender was excused by the apparent futility thereof,
in view of Timperio's rejection of the transfer request. Moreover, the traveling
card tendered in April showed on its face that dues had been paid to Local 111
for the entire month of April, and under the International's constitution Tirado
was thereby excused from any further dues payment for that month to Local 568,
had it accepted him. Finally, as found above, Tirado made a separate tender of dues
to Local 568 on May 6, to an agent of the Respondent authorized to receive dues,23
which was rejected. Such tender would alone suffice to meet the requirement of a
timely tender of dues within the rule of the Aluminum Workers case, supra.
I find therefore that there was a legally sufficient application for membership
and tender of dues and initiation fees before Tirado's discharge, that when the
Company discharged Tirado it had reason to believe 24 that he had been denied
membership in Local 568 for reasons other than his failure to offer to discharge
his financial obligations to Local 568; that such discharge violated Section 8(a)(3)
of the Act; and that, by causing such discharge, the Respondent violated Section
8(b)(1)(A) and (2) of the Act.
I find further that the true reason for the Respondent's request for Tirado's dis-
charge was not any inadequacy in his tender of dues or initiation fees but rather
the Respondent's desire to preserve for its existing members a monopoly over job
opportunities within the Respondent's jurisdiction. In reaching this conclusion, I
rely upon the following:
I have credited Tirado's testimony that his February and April traveling cards
were rejected by Timperio, not on the ground that they were untimely tendered,
but rather on the ground that the cards themselves were somehow defective. Yet,
the cards were valid on their face and contained verbatim excerpts from the Inter-
national 's constitution stating that it was "mandatory" for locals of the Interna-
tional "to accept members by traveling cards." Timperio, himself, acknowledged
at the hearing that such a traveling card entitled the bearer to transfer his member-
ship to Local 568. Accordingly, he could not have acted in good faith in telling
Tirado, in effect, that the February and April cards were invalid. The inescapable
conclusion is that such alleged invalidity was a mere pretext for rejecting Tirado's
transfer request, and that Timperio's object was to prevent Tirado from becoming
22 E.g., Aluminum Workers International Union, Local 135, AFL ( The Metal Ware
Corporation ), 112 NLRB 619 , enfd. 230 F . 2d 515 (C.A. 7).
23 Tirado's testimony shows that he mistakenly supposed that these dues applied to the
month of April. However , the documentary evidence in the record shows, and it is found,
that the dues paid to Local 111 on April 8, applied to that month, so that the dues
tendered on May 6, necessarily applied to the month of May.
u As noted above, Tirado testified, without contradiction, and I find, that about a week
before his discharge he told the Sheraton 's personnel manager of his efforts to join
Local 568 and pay his dues.
MOTEL, HOTEL & CLUB EMPLOYEES' UNION LOCAL 568 1077
a member of Local 568 and then secure his discharge under the union-shop clause
because he was not a member. While there was no evidence of any specific animus
against Tirado on the part of Local 568 or any of its agents, Timperio did state at
the hearing that it was the policy of Local 568 to keep "bur unemployment to a
minimum." Even without this admission, official notice may be taken of the fact
that it is one of the prime functions of a union to maximize job opportunities for its
members. In the case of Tirado, the Respondent evidently sought to perform this
function by frustrating his efforts to become a member and then ousting him from
his job because he was not a member, thereby making room for any unemployed
member of Local 568 that might be qualified to replace him.
Accordingly, even if it be assumed that Tirado did not make a timely tender with-
in the meaning of the proviso to Section 8(a)(3), I would still find that the Re-
spondent violated Section 8(b)(1)(A) and (2) by requesting his discharge for
reasons unrelated to such defective tender-namely, the desire to enhance job op-
portunities for its existing membership.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Company described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the'
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor' practices • in.
violation of Section 8(b) (1) (A) and (2) of the Act, it will be recommended that
the Respondent cease and desist therefrom and take certain' affirmative action de--
signed to effectuate the policies of the Act.
It has been found that the Respondent unlawfully caused Tirado to be discharged
on May 16, 1960. I shall recommend that the Respondent:
1. Notify the Company forthwith in writing that it has no objection to Tirado's
employment, and at the same time request the Company to offer Tirado immediate
and full reinstatement to his former or substantially equivalent position , and simul-
taneously serve a copy of such notice and request on Tirado.
2. Make Tirado whole for any loss of earnings he may have suffered by reason
of the discrimination against him by payment to him of a sum of money equal
to that which he normally would have earned in the employ of the Company,
absent any discrimination, from May 16, 1960, until 5 days after the Respondent
complies with the requirements of paragraph numbered 1, above, less his net earn-
ings (Crossett Lumber Company, 8 NLRB 440, 497-498) during said period. Such
net backpay shall be computed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289.
As the Respondent's unfair labor practices found herein go to the heart of the
Act, it will be recommended that the order contain a broad injunction against any
form of restraint or coercion by the Respondent.
Upon the basis of the above findings of fact, and upon the entire record, I adopt'
the following: .
CONCLUSIONS OF LAW
1. The Sheraton Corporation of America 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 meaning of Section 2(5) of
the Act.
3. At all times material herein John Timperio was an agent of the Respondent
within the meaning of Section 2(13) and Section 8(b) of the Act.
4. By causing the Company to discharge Emanuel Tirado for discriminatory
reasons, in violation of Section 8(a) (3) of the Act, the Respondent has violated
Section 8(b)(1) (A) and (2) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]