University Club

National Labor Relations Board - Board Decisions

Feb 15, 1965

151 N.L.R.B. 23 (N.L.R.B. 1965)

UNIVERSITY CLUB 23
on June 28, 1963, who shall within 20 days from the date we advise the Regional
Director for Region 2 of the National Labor Relations Board that we will comply
with the Order of said Board, notify us that he or she desires such reinstatement,
discharging, if necessary, any and all employees hired by us since June 28, 1963.
WE WILL pay to each employee reinstated as above set forth the necessary
travel and moving expense entailed in transporting themselves, their immediate
families, and household effects from New York City to Amsterdam, New York.
WE WILL make whole each employee who was on our payroll on June 28,
1963, for any loss of pay they may have suffered, severally, by reason of the
moving of our plant from New York City to Amsterdam, New York, for the
period beginning July 8, 1963, and terminating upon the first to happen of the
following events; namely, (1) when he or she has been reinstated by us as above
set forth; (2) the failure to notify us within the time set forth above that rein-
statement is desired; or (3) when he or she obtains or did obtain, other sub-
stantially equivalent employment.
STANDARD HANDKERCHIEF CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE -We will notify such of the aforementioned employees who are serving
in the Armed Forces of the United States of their right to reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue , New York, New York, Telephone No.
751-5500, if they have any question concerning this notice or compliance with its
provisions.
University Club and Chicago Joint Executive Board of the
Hotel and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO. Case No. 13-CA-6501. February 15,
1965
DECISION AND ORDER
On November 17, 1964, Trial Examiner C. W. Whittemore issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Decision. Thereafter, the Respond-
ent filed exceptions to the Trial Examiner's Decision, with a support-
ing brief, and the General Counsel filed an answering brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
151 NLRB No. 8
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the
Decision, the exceptions and briefs, and the entire record in this case,
and hereby adopts the Trial Examiner's findings,' conclusions, and
recommendations.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent University
Club, Chicago, Illinois, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended Order,
with the following addition :
Insert the following as paragraph 2(b) of the Order and reletter
the subsequent paragraphs accordingly.
"Notify Jorge Cantu if he is serving in the Armed Forces of the
United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from
the Armed Forces."
1 We find no merit in Respondent ' s contention that the Board should not assert jurisdic-
tion over this proceeding See Walnut Hills County Club , 145 NLRB 81 , Greenacres, Inc,
d/b/a Woodland Hills Country Club 146 NLRB 330
We also find no mei it in Respondent' s contention that the Union herein is not a labor
organization within the meaning of Section 2 (5) of the Act. In so ruling , we take official
notice of the fact that the Union has been found to be a labor organization within the
meaning of the Act in prior proceedings before the Board . Cf. Water Tower Inn, a Partner-
ship, 139 NLRB 842
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on June 15, 1964, by the above -named labor organization,
the General Counsel of the National Labor Relations Board on August 3, 1964,
issued his complaint and notice of hearing . The above-named Respondent duly
filed an answer. The complaint alleges and the answer denies that the Respondent
has engaged in and is engaging in unfair labor practices in violation of Sec-
tion 8 (a) (1) and ( 3) of the National Labor Relations Act, as amended . Pursuant
to notice , a hearing was held in Chicago , Illinois, on October 13, 1964, before Trial
Examiner C. W. Whittemore.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the issues , to argue orally , and to file briefs . Briefs
have been received from General Counsel and the Respondent.
Disposition of the Respondent 's motion to dismiss the complaint , upon which
ruling was reserved at the hearing, is made by the following findings, conclusions,
and recommendations
Upon the record thus made , and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
University Club is an Illinois nonprofit corporation , occupying a building in
Chicago, Illinois, where it maintains a private membership club for living purposes,
for service to business , civic, and social gatherings , for social , cultural , and recrea-
tional activities , and for sports and games . As part of such activities the Respond-
ent rents rooms to members and their guests, and operates dining rooms , bars, and
other services for members and guests.
UNIVERSITY CLUB 25
During the year 1963, the Respondent derived revenue of more than $500,000
from the sale of food and beverages to members and guests.
During the same period it received goods and supplies valued at more than
$2,000 which were shipped to it directly from States of the United States other than
Illinois.
During the same period it received goods and supplies valued at more than $50,000
from enterprises in Illinois which had received goods and supplies directly from
States other than Illinois.
The Respondent is engaged in commerce within meaning of the Act.
II. THE CHARGING UNION
Chicago Joint Executive Board of the Hotel and Restaurant Employees and
Bartenders International Union, AFI-CIO, is a labor organization representing
certain employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issue
The only question of fact here involved is whether one of the Respondent's
luncheon waiters, Jorge Cantu, was discharged on June 11, 1964, to discourage
membership and activity in the Charging Union. There is no dispute as to the fact
that: (1) organization began early in June; (2) Cantu was a leader in this campaign;
(3) William B. Bangs, manager of the University Club, promptly upon becoming
aware of such organizational efforts, took measures to discourage them; and (4) he
decided upon and directed the discharge of Cantu.
B. Facts relevant to the complaint's allegation
The following findings of fact are based chiefly upon Cantu's undisputed testimony:
(1) Cantu was employed by the Respondent in February 1959 as both a luncheon
and dinner waiter. A few months later, finding dinner business at the club to be
slow, he went to work for the Drake Hotel as a dinner waiter, retaining his luncheon
position at the club.
(2) For an undetermined period, but long before his discharge at the club, Cantu
has been a steward at the Drake Hotel for Local 25 of the International Union.
(3) Waiters at the University Club, at least during the nearly 2 decades of Bangs'
managership, have never been organized, although it appears that some others, like
Cantu, may have held membership in the same local
(4) Toward the end of 1963 a waiter at the club was fired. Cantu tried to get
for him a bonus he believed due the waiter, going to the local's office for assistance.
There he was informed that because the club was not organized, nothing could be
done. When he discussed the possibility of organizing the club, he was advised
to wait until the last of May or the first of June, when an organizing campaign
would start.
(5) Early in June, Cantu became an active employee leader in the campaign,
distributing designation cards and exhibiting to many, including waiter captains and
even his immediate supervisors, Head Waiter Kuehn and Maitre d'Esperanza, copies
of the union wage scale.
(6) At the same time union organizers distributed campaign literature outside
the club.
(7) On June 11, when be reported for work at lunch, he was called aside by
Esperanza, who asked him to try to recall what had gone wrong when he had served
Bangs 2 days earlier, June 9. The waiter asked why. Esperanza replied that he had
instructions from the manager to fire him, and advised him to see Bangs.
(8) Cantu promptly went to the office, told Bangs what Esperanza had said, asked
what he had done "wrong," and pointed out that he had given his best service to
the club for more than 5 years without a single complaint having been brought to
his attention.
(9) Bangs replied that the discharge had "nothing to do exactly with that day"-
June 9-and that he had nothing against him "personally " When Cantu pressed
for more information, the manager added, "Your attitude is not good, I mean, you
always complain about your covers."'
1 "Covers," other evidence discloses, means the number of members or guests a waiter
serves at a meal.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(10) Cantu countered that he had never complained to him or anyone else, and
that for 5 years his weekly "covers and pay" had remained about the same.
(11) Bangs dismissed him by saying , "You are a good waiter . . . I know you
won't have trouble finding another job." 2
( 12) Cantu has not been reinstated.
C Bangs' claims as to the discharge
As a witness called by General Counsel, Manager Bangs admitted that he learned
of the organizing campaign "early in June," when it was reported to him by em-
ployees, and that he went out to "investigate" and obtained union leaflets and a
copy of the designation cards He further admitted that he promptly took action
to "counter" the campaign. He called the captains together at a special meetjng
and told them that such organization was unnecessary and that the club was con-
sidering improvement of a hospital plan and providing increased benefits. (It is
conceded that these captains are supervisors.) Bangs also admitted that he in-
structed his catering and assistant managers to hold meetings of staff employees and
repeat to them the information he had given the captains.
According to Bangs, he gave Catering Manager Pineda instructions to discharge
Cantu shortly after lunch-on June 9, he "thought." He admitted, however, that
it was on June 11, 2 days after he says he directed the discharge, that Cantu came
to his office.
The manager testified that he told Cantu he had been discharged because of "poor
service and poor sttitude," and added that he "didn't like the service we had at
luncheon on his station that day . . . and that there had been a number of general
complaints about service in the dining room."
He admitted that he had never had any complaint from anyone about Cantu's
service He declared, however, that he had not been "satisfied" with Cantu's service
for "perhaps a year," without giving any specific instances of such "dissatisfaction"
except that of June 9 His chief complaint about the June 9 service was that Cantu
had failed to keep his iced tea glass filled!
Bangs further admitted that he had neither warned Cantu of any dereliction nor
instructed any of his subordinate supervisors to issue such warnings at any time during
his long service.
The manager denied that he knew anything about Cantu' s union activities until
after he had been discharged.
D. Conclusions
I am unable to credit the vaguely described reasons Bangs gave, as a witness, for
his discharge of Cantu. If, as he said, he had been dissatisfied with Cantu' s service
for a year, it seems reasonable to believe that as manager he would have, at least
at some point, warned Cantu-or told his subordinates to warn him. But it appears
that he did not even complain to Cantu on June 9 about his iced tea glass, assuming
the validity of his claim that it was not kept filled.
Nor can I believe Bangs' denial that he knew about Cantu's union activity
until after the discharge. It is clear that such activity was known to both the
maitre d' and to the headwaiter, and that he had been informed of the organiza-
tional efforts, had himself "investigated," and had called special meetings to counter
the movement.
In short, under circumstances as described by Bangs, himself, I am con-
vinced that the iced tea incident was but a weak pretext, and that he directed
the discharge of Cantu well knowing the extent of his union activities, as part of his
admitted countermeasure to defeat organization of the employees at the club.
It is therefore concluded and found that Cantu was discharged to discourage union
membership, and that such unlawful discrimination interfered with, restrained, and
coerced employees in the exercise of rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, 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 the free
flow of commerce.
While Bangs ' version of this final interview varies somewhat from that of Cantu, from
whose credible testimony the quotations are taken , the manager was not called to contra-
dict any part of Cantu ' s account
UNIVERSITY CLUB
V. THE REMEDY
27
Having found that the Respondent has engaged in unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
It will be recommended that the Respondent offer Jorge Cantu immediate and full
reinstatement to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make him whole for any loss of
earnings he may have suffered by reason of the discrimination, by payment to him of
a sum of money equal to that he normally would have earned as wages, absent the
discrimination, from the date of the discharge to the date of offer of full reinstatement,
and in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB
289, and with interest thereon as prescribed in Isis Plumbing & Heating Co., 138
NLRB 716
Since the unfair labor practices committed by the Respondent were of a nature which
violates the policies of the Act, it will be recommended that it cease and desist from
infringing in any manner upon the rights guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Chicago Joint Executive Board of the Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
2. By discriminating as to the tenure of employment of Jorge Cantu, to discourage
membership in and activity on behalf of the above-named labor organization, and
thereby interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a)(1) and (3)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in the case, it is recommended that the Respondent , University Club, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in and activity on behalf of Chicago Joint Executive
Board of the Hotel and Restaurant Employees and Bartenders International Union,
AFL-CIO, or in any other labor organization , by discharging , refusing to reinstate,
or in any other manner discriminating in regard to hire or tenure of employment or
any term or condition of employment.
(b) In any other manner interfering with, restraining , or coercing employees in the
exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act.
(a) Offer Jorge Cantu immediate and full reinstatement to his former or substan-
tially equivalent position , and make him whole for any loss of earnings suffered by
reason of the discrimination against him, in the manner set forth above in the section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount of backpay due and the right of reinstatement under terms of this
Recommended Order.
(c) Post at its quarters in Chicago, Illinois, copies of the attached notice marked
"Appendix." 3 Copies of said notice, to be furnished by the Regional Director for
Region 13, shall , after being signed by the Respondent 's authorized representative,
be posted by the Respondent immediately upon receipt thereof , and be maintained by
3In the event that this Recommended Order be adopted by the Board, the words "a De-
cision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order "
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it for a period of 60 consecutive days thereafter , in conspicuous places, including
all places where notices to employees are customarily posted . Reasonable steps
shall be taken to insure that said notices are not altered , defaced, or covered by any
other material.
(d) Notify the said Regional Director , in writing, within 20 days from the date
of the receipt of this Trial Examiner 's Decision, what steps it has taken to comply
herewith.4
I In the event that this Recommended Order be adopted by the Board, this provision
shall , be modified to read : "Notify the said Regional Director, in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to conduct our labor relations in compliance with
the National Labor Relations Act, as amended , we hereby notify you that:
WE WILL NOT unlawfully discourage you from being members of or being
represented by Chicago Joint Executive Board of the Hotel and Restaurant
Employees and Bartenders International Union , AFL-CIO, or any other labor
organization.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to engage in any union
activities.
WE WILL offer reinstatement to Jorge Cantu , and will give him backpay from
the time of his discharge.
UNIVERSITY CLUB,
Employer.
Dated------------------- By----------------------=-------- --------
(Representative ) ( Title)
NOTE.-We will notify Cantu if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of
1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street , Chicago, Illinois,
Telephone No. 828-7572, if they have any question concerning this notice or com-
pliance with its provisions.
Frito-Lay, Inc: and Drivers, Warehouse and Dairy Employees
Union , Local 75. Case No. 3O-CA-67 (formerly 13-CA-69291).
February 15, 1965 -
DECISION AND ORDER
On November 30, 1964, Trial Examiner David London issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in unfair labor practices as alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
Charging Party filed exceptions to the Trial Examiner's Decision and a
supporting brief. The Respondent filed a brief in support of the Trial
Examiner's Decision.
151 NLRB No. 6.