Cooks, Waiters and Waitresses Union, Local 327

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the contract is not a bar, and that,a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. ' 4. We find that the following employees constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, excluding all office clerical employees, guards, professional employees, and supervisors as defined in the Act .8 [Text of Direction of Election omitted from publication.] The unit appears as amended at the hearing. Cooks, Waiters and Waitresses Union, Local 327; and Peoria Local Joint Executive Board , Hotel and Restaurant Em- ployees International Union ; and Anna C. Rimington and Greater Peoria Restaurant Association . Case No. 13-CB-840-2. April 24, 1961 DECISION AND ORDER On August 2, 1960, Trial Examiner Thomas F. Maher issued. his Intermediate Report in this case, finding that the Respondent had violated Section 8(b) (1) (A) of the Act and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also recommended that the separate complaint alleg- ing violations of Section 8 (b) (3) of the Act be dismissed. Thereafter the Charging Party and the General Counsel filed exceptions to the Intermediate Report, and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent with the decision set forth below. The complaint in this case alleges that the Union unlawfully refused to bargain with the Association by executing individual contracts with two restaurants, Vonachen's Junction and the Steak House, on June 6 and January 18, 1960, respectively. A preliminary question 131 NLRB No. 33. COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 199 in this case is the factual 'issue whether these two employers were actually members of the Association on the above dates. Briefly, the history of collective bargaining between the Union and the Associa- tion and its members is as follows : Since 1947, the Association has negotiated collective-bargaining agreements with the Union on behalf of the members of the Associ- ation. Prior to the expiration of the last contract on January 31, 1958, the Association secured bargaining authorizations from its par- ticipating employers, and bargaining commenced on a new contract on January 9, 1958. Vonachen's Junction, and the Steak House signed authorizations on November 20, 1957, and January 7, 1958, respec- tively. Shortly after negotiations began, difficulties arose and nego- tiations ended on January 31, 1958. On January 28, 1958, Vonachen's by letter revoked its authorization to the Association and prior to February 1, 1958, executed an individual contract with the Union. On the evening of January 31, 1958, the Association at a meeting of its members took the following action : First, it authorized those employers who wished to avoid a strike to sign the contract offered by the Union, which many did. Second, it agreed to file unfair labor practice charges against the Union alleging violations of Section 8(b) (3) of the Act. The charge (Case No. 13-CB-627) was filed in February 1958 and culminated in an informal settlement executed on March 10, 1959, in which the Union, while admitting no violations of the Act, agreed to bargain with the Association and to abrogate the individual contracts signed pursuant to the agreement at the January 31,1958, meeting. A list of Association members was appended to the settlement agreement and this appendage included the names of Vonachen's Junction and the Steak House. Negotiations between the Association and the Union, under the terms of the settlement, resumed on March 19, 1959, but ended in a strike on June 6, 1959. On January 6 and 18, 1960, Vonachen's and the Steak House, respectively, signed individual contracts with the Union. It is the position of the General Counsel that the Union's obligation under the March 10, 1959, settlement agreement to bargain with the Association for a multiemployer unit, including Vonachen's and the Steak House, makes irrelevant any attempts by these two employers to withdraw from the Association prior to that date. With respect to the evidence in the record that these two employers did, in fact, with- draw from the Association subsequent to that date, the General Coun- sel asserts that such evidence is inconclusive and insufficient to rebut the presumption that they remained members of the Association when the Union executed individual contracts with them. We do not agree with the General Counsel's theory. As to the settlement agreement, no obligation undertaken by the Union is sufficient in and of itself to bind an employer to an Association from which it may have, in fact, 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withdrawn. If such withdrawal was accomplished prior to March 10, 1959, the Association was not authorized to speak for, or to list, such an employer as a member. Obviously, neither the General Coun- sel nor the Union, the remaining parties to the settlement agreement, had such authority. Accordingly, we shall consider all of the perti- nent evidence in determining whether or not Vonachen's and the Steak House were members of the Association on June -6 and January 18, 1960, respectively. We adopt the Trial Examiner's finding, based, as it is, upon resolu- tions of credibility, that the Association and the Union agreed within 1 month after negotiations resumed on March 19, 1959, to exclude Vonachen's from the Associationwide unit. The record shows that on January 17,1959, Vonachen's refused to sign a new authorization when solicited to do so by the Association in contemplation of new negotia- tions under the settlement agreement. The Steak House, in August 1959, by its owner, Robert Ashmore, informed Anna C. Riming ton, business agent of the Union, that it was not a member of the Association. Again in December 1959, Ashmore called Rimington, after receiving a subpena in connection with the hearing conducted in the instant case, and protested that the Steak House was not a member of the Association. He told Rimington that he wanted to sign a contract with the Union. The record indicates that neither Vonachen's nor the Steak House have participated in Associationwide bargaining since negotiations first broke down in January 1958, and that neither of them had paid dues or assessments to the Association since January 31, 1958 (which failure under the by-laws of the Association results in automatic ter- mination of membership). Neither were these two employers on a list of Association members submitted to an insurance agent at a negotiat- ing session on April 22, 1959, for the purpose of determining certain data with respect to an insurance plan. It is well established that a single employer unit becomes appro- priate when the employer, at an appropriate time, manifests an inten- tion to withdraw from group bargaining and to pursue an individual course of action with respect to its labor relations.' The totality of the conduct of Vonachen's and the Steak House, as outlined above, since January 1958, has been inconsistent with any desire to conduct its labor relations policies in conjunction with the Association. More than that, their conduct has manifestly indicated an intent not to be bound by Associationwide negotiations in the fu- ture. Indeed, it was pursuant to these individual policies that the January 6 and 18, 1960, contracts were executed. Under the circumstances of this case, especially in view of the fact that neither Vonachen's nor the Steak House has bargained as a mem- 1 McAnary & Welter, Inc, 115 NLRB 1029. COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 201 bet of the Association since January 1958, we find that they had abandoned group bargaining, and were not Association members at the time they signed individual contracts with the Union on January 6 and 18, 1960.1 Accordingly, the employees of these two employers constituted separate appropriate units for purposes of collective bar- gaining on these dates.' We shall therefore dismiss so much of the complaint as alleges a violation of Section 8(b) (3) of the Act by the Union. In view of this conclusion, we find it unnecessary to pass upon the question whether the Union would have violated Section 8(b) (3) by executing individual contracts with current members of the As- sociation while engaged in collective bargaining with the Association. In absence of exceptions we adopt the Trial Examiner's finding of a violation of 8(b) (1) (A) pro forma.4 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 Anna C. Rimington; Cooks, Wait- ers and Waitresses Union, Local 327; and Peoria Local Joint Execu- tive Board, Hotel and Restaurant Employees International Union, their officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from restraining and coercing employees in the exercise of their rights under Section 7 of the Act, by making threats of reprisals against them during the course of strike activities against the Greater Peoria Restaurant Association. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Post in their business offices, copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by responsible officials of the Respondents, be posted by the Respondents immediately upon receipt thereof, and be maintained by it fora period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. 8 While the record is not clear as to whether the Steak House expressly communicated its withdrawal to the Association , it is clear on the above facts that the Association was informed of the withdrawal of the Steak House See Colonial Cedar Company, Inc, 119 NLRB 1613. • We adopt the Examiner's recommendation that posting notices need not be furnished by Respondent to the Association solely because of the "fluidity " of the Association members 5In 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." 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days of the date of this Order, what steps it has taken to comply herewith. (c) It is also ordered that the complaint in Case No. 13-CB-840-2, alleging the violation of Section 8(b) (3) of the Act, be dismissed. APPENDIX NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF GREATER PEORIA RESTAURANT ASSOCIATION 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, we hereby notify,you that: WE WILL NOT coerce or restrain the employees of Greater Peoria Restaurant Association by threats of reprisals if they continue to work for members of said Association, or fail or refuse to en- gage in picketing or other concerted activity during the course of the strike against the said Association and its members. COOKS. WAITERS AND WAITRESSES UNION, LOCAL 327, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) PEORIA LOCAL JOINT EXECUTIVE BOARD, HOTEL AND RESTAURANT EMPLOYEES 'INTERNATIONAL UNION, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) Dated---------------- By------------------------------------- ANNA C. RIMINOTON This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges and amended charges filed on August 28 and October 1, 1959, and January 8 , 1960, by Greater Peoria Restaurant Association, hereinafter referred to as the Association, General Counsel of the National Labor Relations Board on October 30, 1959, and thereafter on February 2, 1960 , issued complaints against Cooks, Waiters and Waitresses Union , Local 327; Peoria Local Joint Executive Board, Hotel and Restaurant Employees International Union ; and Anna C. Riming- ton, herein referred to collectively as Respondent , or when appropriate, as Respond- ent Union and Respondent Rimington, respectively . The October 30 complaint in Case No. 13-CB-840, alleged violations of Section 8(b) (1) (A) of the National Labor Relations Act, as amended (61 Stat. 136), herein referred to as the Act. The February 2, 1960 , complaint in Case No. 13-CB-840-2, alleged violations of Sec- COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 203 Lion 8(b)(3) of the Act. The complaints consolidated for purposes of hearing, were, thereafter amended, without objection, at the hearing. In its duly filed answers Respondent, while admitting certain allegations of the complaints, denied the commission of any unfair labor practice. Prior to sub- mission of its answer to the first complaint, Respondent moved that the complaint be made more definite and certain, which motion was denied by Trial Examiner A. Bruce Hunt. Subsequently Respondent' caused to be prepared and served upon the several members of Greater Peoria Restaurant Association, the Charging Party herein, subpenas duces tecum directed to the production of detailed information concerning the volume of business of the respective members. Upon the Charging Party's petition for the revocation of these subpenas, Trial Examiner George J. Bott considered the matter and denied the petition without prejudice to the Charging Party's right to renew its request at the hearing. When the petition to revoke was renewed at the beginning of the hearing I reserved ruling at the time. As the various stipulations of counsel with respect to the volume of business of the individual Association members and to their membership and activities in and on behalf of the Association were deemed by me, without objection of counsel, to be adequate for purposes of developing the record herein, no further recourse was had to the subpenas previously issued. So that they may not hereafter be viewed as operative in this or related proceedings the Charging Party's motion to revoke is hereby granted. Pursuant to notice a hearing was held before me in Peoria, Illinois, on February S, 9, 10, and 11, 1960, and in Chicago, Illinois, on March 17, 1960. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Parties waived oral argument at the hearing and in lieu thereof filed briefs with me thereafter. Upon consideration of the entire record and the briefs of the parties, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE EMPLOYER ASSOCIATION Greater Peoria Restaurant Association, the Charging Party herein, is a voluntary association of owners and operators of restaurants, cafes, cafeterias, and other like establishments engaged in the serving and sale of food and beverages in the Peoria, Illinois, area to the general public for consumption on the premises. The Associa- tion is incorporated under the laws of the State of Illinois and maintains offices and headquarters in Peoria, Illinois Its members constitute the employers of the em- ployees involved herein. Included among these members is Bishop's Cafeteria, located in Peoria, Illinois, which in the year 1958 did a gross volume of business in excess of $325,000, and Palace Restaurant, located in Peoria, Illinois, which during the same year did a gross volume of business in excess of $370,000. In addition to the foregoing the record reflects that during the same year, 1958, Palace Res- taurant I purchased fixtures, meat products, and butter in an amount in excess of $24,000 from firms located outside of the State of Illinois, which goods and fixtures were shipped directly to Palace Restaurant in Peoria, Illinois, directly from points outside the State of Illinois; and that the Palace Restaurant likewise purchased during the same year foods and commodities valued in excess of $64,000 from firms located in the State of Illinois which foods and commodities were purchased by the aforesaid firms from manufacturers, growers, and others outside the State of Illinois. Upon the foregoing, and upon consideration of the fact that the Board has previously taken jurisdiction over the Association in a proceeding instituted by charges filed by Respondent herein in Cases Nos. 13-CA-3391 and 13-CA-3444 (not published in NLRB volumes), I find and conclude that the Association is engaged in commerce within the meaning of the Act and constituted a single employer whose combined operations satisfy the minimum required by the Board for the assertion of its jurisdiction.2 II. THE LABOR ORGANIZATIONS INVOLVED Cooks, Waiters and Waitresses Union, Local No. 327, and Peoria Local Joint Executive Board. Hotel and Restaurant Employees International Union, are labor organizations within the meaning of the Act. 1 Also Identified In the record as Palace Cafeteria . 2 Siemons Mailing Service, 122 NLRB 81, 85; Belleville Employing Printers, 122 NLRB 350, 352. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ISSUES 1. Whether Vonachen's Junction and the Steak House unequivocally manifest an intent not to be bound by multiemployer bargaining. 2. Whether the foregoing establishments withdrew from multiemployer bargain- ing at an appropriate time. 3. Whether remarks by union officials constituted restraint and coercion of employees. IV. THE ALLEGED UNFAIR LABOR PRACTICES Because this proceeding is the result of the consolidation of two separate com- plaints whose subject matters are completely unrelated they will be considered separately herein: A. The alleged refusal to bargain 3 1. Facts Beginning sometime in 1939 a ,,predecessor of the Association executed. its first collective-bargaining,"agreement withthe Respondent Union in behalf of the em- ployees of the employer-members. Since then the Union has continued to represent these employees. Meanwhile, in 1947 the Peoria Restaurant Association was in- corporated and succeeded to the bargaining responsibilities of the employer group. By amendment of its articles of incorporation in 1955 the present name of the Association was adopted. Between 1947 and 1955 representatives of the Association and the Union met periodically and negotiated and executed collective agreements. In 1955 the parties agreed upon a contract, due to expire on February 1, 1957. Unlike the previous contract executed by the Association and the individual - members, this one was negotiated by the Association but executed only by the individual'methbers, although the preamble of the document itself designated the Association as the "Party of the Second Part." This contract was reopened in 1956 and its expiration date extended to January 31, 1958. In late 1957, prior to the approaching renegotiations, the Association solicited from restaurants in the Peoria area formal authority to the Association' s negotiating committee to represent them in the forthcoming negotiations . Approximately 45 restaurants responded and authorized bargaining in their behalf. Included among this group were Vonachen's Junction and the Steak House, the only two employers directly concerned in these proceedings, who signed authorizations on November 20, 1957, and January 7, 1958, respectively. Although negotiations began immediately thereafter, on January 9, 1958, and continued throughout the month, Vonachen's Junction and four other restaurants notified the Association on January 28, within 3 weeks of the commencement of bargaining, of its intention to withdraw from the Association and to disassociate itself from the negotiations then in progress. The text of this notification is as follows: We, the undersigned , hereby withdraw our membership from the Greater Peoria Restaurant Assn. as of January 28, 1958 We further withdraw the bargaining authorization, immediately, wherein we appointed and designated the Greater Peoria Restaurant Association and its officers, directors, committees and agents selected for that purpose to act for and on our behalf in bargaining and negotiations with the Cooks, Waiters and Waitresses Local No. 327 and its affiliates for the labor contract to take effect after the expiration of the present contract on January 31, 1958. The undersigned further notified you that, effective immediately, the under- signed withdraws authorization for you to incur any expenses or expend any money on behalf of the undersigned? At the January 29, 1958, bargaining session, the Union presented the Association with a proposed contract and its ultimatum that a strike would be called unless the proposal was accepted. The Association members voted not to accept the proposed contract but agreed to permit those of its members who could not "take a strike" to S Case No 13-CB-840-2. 4 Several days thereafter, on January 31, 1958, the proprietor of Jumbo Lunch likewise withdrew from the Association and the bargaining arrangements, stating: I hereby resign from the Greater Peoria Restaurant Association. I further withdraw any authorization previously given to you to act on my behalf or to encur any expense on my behalf. COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 205 sign individually. Most of the individual members signed the contracts , and when Harold A. Vonachen, Jr., signed in behalf of Vonachen's,Junction he advised Busi- ness Agent Rimington that he had notified the Association of his withdrawal from group bargaining.5 Subsequently, upon the investigation of a charge in Case No. 13-CB-627 filed with the Board by the Association against the Union in February 1958, and upon the execution over a year later, on March 10, 1959, of a settlement agreement thereon,6 the Union agreed to abrogate these contracts and to resume bargaining with the Association. The agreement with Vonachen's was not abrogated but upon the mutual agreement of parties remained in full force and effect. And in the meantime, in January 1959, when Vonachen's Junction was solicited to rejoin with the Association in its resumed bargaining with the Union-an expected result of the then proposed settlement agreement-Harold Vonachen refused to authorize resumed bargaining in his behalf and continued to hold in full force and effect the year-old individual contract he had executed with the Union in late January or early February 1958.7 This refusal Vonachen thereafter communicated to Union Business Agent Rimington.8 The March 1959 settlement agreement upon which bargaining was scheduled to resume included as an appendix a list of the employers in the the bargaining unit agreed upon by the Association and the Regional Director, but not by the Union representing the employees. Included on this list of employers was Vonachen's Junction, the Steak House, and Jumbo Lunch whose 'withdrawal of 14 months previous has been referred to above (supra). Negotiations did resume as a result of the settlement agreement, and from March 19, 1959, to January 27, 1960, frequent meetings were held between the Association and the Union. During many of these meetings discussions between the partices were held directed to an understanding of what constituted the bar- gaining unit. Thus on March 19 and 25 and May 6 the parties considered and finally agreed upon the Union's proposal to exclude four or five restaurants from the unit, including Vonachen's and Jumbo Lunch, both of whom had withdrawn pre- viously, and to include two new restaurants .9 On June 5, 1959, after a prolonged period of fruitless negotiations, the Union called a strike against the Association and began to picket several of its members. The strike is still in progress. On January 6, 1960, Respondent Union renewed its individual contracts with Vonachen's Junction and on January 18 it executed a contract with the Steak House. s The credited testimony of Rimington. This charge, ultimately dismissed by virtue of the settlement agreement, alleged among other things the maintenance of an allegedly unlawful agreement with the em- ployers by the terms of which clearance by or membership in the Union was required of employees as a condition of employment by the signatory employers. 7 Vonachen's reply to the Association's request for his authorization , dated January 17, 1959, is as follows : After careful personal consideration and several consultations with my lawyer I have decided to return the copies of the authorization unsigned. I feel that I have signed a contract with the Union in good faith and I hesitate to change until the present contract expires. I feel the Union negotiated with me in good faith and both of us intend to live up to the provisions of the contract. I fully realize the need for an association and agree for the betterment of our Industry we should band together. On the other hand I feel that the association as it is organized now is of no value to me. The issues at stake in the present difficulties are insignificant and the attempted settling of them will bring only a large amount of legal expense. Because of my many employees a great portion of that expense will fall upon Vonachen 's Junction. To sum up my feeling I don't think it would be advantageous to enter into an agree- ment in something I do not firmly believe in . It seems to me that someone is going about this matter on a grudge battle basis rather than good old common sense. I have no personal ill feeling towards the association or any of its members. I have based this decision on my conviction that I am doing the best for my organi- zation. I hope someday we will all have a meeting of the minds and may knit together a strong organization which will bargain on a friendly and impartial basis with organized labor. s The credited testimony of Rimington. 9In this respect I discredit the testimony of Labor Relations Consultant Scheinman that these exclusions were viewed as tentative or that he was not clear as to the Union's suggestions as to exclusions. Upon my disposition of this phase of the case, however, I do not consider this a significant factor. 206 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD —' The circumstances surrounding the Steak House's relation to the bargaining unit is not as well defined as is Vonachen's. Thus, there is no direct evidence that this establishment formally withdrew from the Association. But,the record does con- tain, however, a detailed analysis chart of the Association membership 10 whereon is recorded, in columnar form opposite the respective restaurants, such details as the date of their respective bargaining authorizations, whether or not they were revoked, and the details of membership dues and bargaining assessments. Sig- nificantly, while the Steak House is not shown to have revoked its bargaining authorization, it has paid neither its membership dues nor bargaining assessments. With respect to the revocation of the Steak House's bargaining authorization there does appear in the record ample evidence of the Association's understanding that a revocation had been effected.ll Thus on April 22, 1959, Joseph Hecht, an insurance agent present at a bargaining session, was asked to provide certain detailed in- formation concerning group insurance as it applied to restaurant employees whose employers were represented by the Association. As an essential to his compu- tations he was provided by the Association's representative, Scheinman, with a list entitled: RESTAURANTS WHICH HAVE SIGNED BARGAINING AUTHORI- ZATIONS OF GREATER PEORIA RESTAURANT ASSOCIATION. The Associ- ation had not included the Steak House on this list. Moreover, Robert Ashmore, owner of the Steak House, credibly testifying as a witness for the General Counsel, stated that he did not believe that the authorization which he gave the Association on January 7, 1958, lasted "up to this day." A conclusion that Ashmore did not under- stand himself to be bound by his 2-year old authorization or his earlier ties with the Association receives further support from two sources. Thus upon the credible testimony of Union Business Agent Rimington: Q. I show you the contract and I ask you if you can tell the Trial Examiner the circumstances under which the Union signed a contract with the Steak House. A. In the summer of '59 . . . Mr. Ashmore called me up . . . he said, I want you to understand and know that I do not belong to the Restaurant As- sociation, and I don't want any part of it. A. . . he says look, he says, "I told you before that I do not belong to that [Association] and I want no part of it," he says, and "I haven't belonged to it," he says; and "I would like to have you send me a contract"; he says, "I want to sign the contract." and John F. Curtis, manager of the Y.M.C.A. Restaurant, testified credibly that it was his understanding that no signed document was necessary either "to withdraw or sustain your membership with the Association" and that "in the event [he] wished to withdraw membership [he] would have that right at any time." Upon all of the foregoing circumstances, therefore, I conclude and find that the Steak House, through its proprietor, Ashmore, did not consider itself bound to the Association by its January 1958 authorization, nor was it a member of the Associa- tion when it signed an individual agreement with the Union on January 18, 1960.12 10 Respondent's Exhibit No. 3. n While there is indication on the aforementioned analysis chart '(Respondent's Exhibit No. 3) that the Steak House had not filed its revocation, it likewise states that Jumbo, another one-time member of the Association,: had not filed a revocation. This statement was contrary to the admitted fact that Jumbo had filed its authorization as early as January 31, 1958. Because of such inaccuracy I am constrained to reject this chart as evidence of the authorizations remaining in force and those that were revoked. I shall accept it only as evidence of payment or nonpayment of dues and bargaining assessments. 12 In the meantime while the employees were on strike and while the Association and Union continued to bargain the Union filed charges against the Association in Case No. 13-CA-3391, alleging violations of Section 8(a) (1), (3 ), and (5 ) which are not relevant to issues herein. After investigation of the charge by the Regional Director and negotia- tions with the Association a settlement agreement (not to be confused with the agree- ment considered previously, supra ) was executed over the objections of and without the signature of the Union. Included in the agreement, as an appendix, was a list of em- ployers for whom the Association obligated itself to bargain. As the list includes 10 restaurants whom it is stipulated have gone out of business, out of a total of 45, its accuracy is open to serious question . To conclude otherwise would be to assume that 22 percent of all the restaurants represented by the Association went out of business be- tween November 3, 1959, the date of the agreement, and February 10, 1960, the date of the stipulation. This is hard to believe, and I do not. For this reason and because the COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 207 2. Contentions of the parties It is the 'General Counsel's position that the March 10, 1959, settlement agree- ment in Case No. 13-CB-627, containing a list of employers whom the parties understood to be represented by the Association, obligated the Respondent to bar- gain with the Association in behalf of the employees of all of these employers ex- cept insofar as the parties should agree thereafter to exclude one or more of these listed establishments, or unless one or more of the employers executed a timely uni- lateral withdrawal from the unit. The General Counsel further contends that there has been no such opportunity for a timely unilateral withdrawal following the execution because contract negotiations had already begun before the attempted withdrawal and have continued uninterruptedly to the date of the hearing, witnout having resulted in a contract. Thus, the General Counsel insists, in effect, that the only withdrawal that could be viewed as timely would be one executed before the beginning of original negotiations, sometime in December 1957. And in this re- spect he would view the most recent obligation to bargain, i.e., the settlement agree- ment of March 10, 1959, as a restatement, as of that date, of the earlier obligations to.bargaining in the then-constituted multiemployer bargaining unit. In sum, therefore, General Counsel would reject as untimely Vonachen's Junc- tion's withdrawal on January 28, 1958, as well as its January 17, 1959, refusal to authorize the Association to bargain for it; and it would not consider the Steak House to have effected, in any fashion, its withdrawal from Association bargaining. Respondent contends that when the bargaining resumed on March 19, 1959, under the terms of the settlement agreement of March 10, 1959, Vonachen's Junction was not then included in the bargaining unit, for, regardless of its inclusion on the settle- ment agreement list, it had previously indicated its withdrawal, on January 28, 1958. Respondent urges, moreover, that this withdrawal from the unit was fully under- stood by the Association and agreed upon by the parties by virtue of an agreement arrived at on March 25, 1959, between the Association and Respondent, through correspondence and oral understanding between Association representatives and Re- spondent's counsel, Mr. Lee Buckey (supra). And with respect to the Steak House, Respondent relies upon the bylaws of the Association, admitted into evidence, which "specifically and automatically terminate the membership when found to be in 'delin- quency in the payment of dues.' " And it further relies on the evidence that the management of the Steak House not only considered itself withdrawn from member- ship and unobligated by the bargaining then in process but had positively stated its rejection of Association bargaining to one of the parties, the Respondent, and spe- cifically requested representation on an individual employer basis. 3. Analysis of issues and relevant decisions All that we have for consideration in this case is a determination of what is and what is not a legitimate, timely withdrawal of an employer from previously estab- lished multiemployer or association bargaining. If, therefore, it can be shown that either Vonachen's Junction or the Steak House withdrew from the Association negotiating in behalf of the area restaurant employers, either in the wrong fashion or at the wrong time or both, Respondent's subsequent contracts with them or either of them would constitute a'refusal to bargain in violation of Section 8(b)(3). Be- cause there have developed numerous complications in interpreting the authorities supporting this legal proposition a brief review of pertinent authority appears to be in order. McAnary and Welter, Inc., 115 NLRB 1029, continues to be 13 the cornerstone of an individual employer's rights and obligations in multiemployer bargaining. Thus it is stated (at p. 1031) : A unit limited to employees of the employer becomes appropriate if the em- ployer manifests its intention to withdraw from multiemployer bargaining and to pursue an individual course of action at an appropriate time. settlement , agreement's appendix list was supplied unilaterally by the Association I am not disposed to accept it as evidence of who is represented by the Association Cf Local 883, International Union, United Automobile Workers of America (UAW-AFL-CIO), at al. ( Paper Makers Importing Co, Inc., et al.), 116 NLRB 207, 276. is The Board most recently relied upon this case in American Publishing Corporation, et at., 121 NLRB 115 , 122, footnote 39, and in Detroit Window Cleaners Union, Local 139, etc., 126 NLRB 63, wherein it considered and accepted the Trial Examiner's re- liance upon the case, to the exclusion of others. 208 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD Two subsidiary problems emerge from a statement of this well-established rule: (1) what constitutes manifesting an intent to withdraw from multiemployer bargain- ing and to pursue an individual course of action, and (2) what constitutes an appro- priate time. a. The intent to withdraw The adequacy of an employer's intent to withdraw from multiemployer bargaining has been variously described. Thus it has been held that an employer who has not for the past 2 years participated in the joint negotiations with a group with which it had previously been associated has unequivocally manifested its intent not to be bound by such negotiations in the future.14 Similarly, when an employer has consistently objected to the course which multiemployer negotiations were taking, refused to sign the resulting contract, and thereafter undertook individual negotia- tions with the union, the Board held multiemployer bargaining to have been abandoned and an intent to pursue individual bargaining clearly manifested. 15 Simi- larly, by signing individual employer contracts an intent to abandon multiemployer bargaining has been found manifest as has been the requests of a union to bargain separately in derogation of a binding multiemployer unit-a unit claimed to have been in existence by the union petitioning for an election.16 And finally withdrawal from multiemployer bargaining has been approved upon a showing of release of individual members by the Association,17 mutual agreement of the parties that individual bargaining be substituted for joint bargaining,18 and inadequate bargaining history.19 On the other hand withdrawal of individual employers has been refused upon an absence of the foregoing factors. Thus, in Anderson Lithograph Company, Inc., et al., 124 NLRB 920, unequivocal withdrawal by an employer was not established; for although the employer withdrew before a multiemployer agreement was reached it did so only after having previously pursued multiemployer negotiations fully aware that other employees had secretly withdrawn and executed separate contracts with the union. This continued bargaining rebutted, the Board held, an unequivocal intent to withdraw. Out of this species of attempted withdrawal it would appear that a concept of estoppel has been engrafted on the requirement of "unequivocal manifestation." 20 Thus, in Detroit Window Cleaners Union, Local 139, etc., 126 NLRB 63, wherein the employer gave no notice of its withdrawal until after contract negotiations had been concluded, the Board held that because "it stood by while negotiations were being conducted, keeping informed of the progress of these nego- tiations without giving the [Union] the slightest reason to believe that the Associ- ation was no longer bargaining in its behalf," the employer was thereby estopped from relying upon its withdrawal. And in the most recent Cosmopolitan Studios, Inc., 127 NLRB 788, the Board, relying upon Anderson, reiterated this theory of estoppel, holding that an employer having reaffirmed its willingness to bargain through the group, and the union having relied upon it and commenced bargaining, the employer's subsequent withdrawal before contract execution was precluded on the basis of estoppel.21 A summary of these cases suggests, therefore, that to manifest unequivocally an employer's intent to withdraw from multiemployer bargaining it is expected that parties to such bargaining be made aware of the employer's actual or intended with- drawal and that his conduct generally not be so inconsistent with his intent as to compromise it and estop any reliance upon it 22 14 Colonial Cedar Company, Inc, 119 NLRB 1613, 1614. 15 International Brotherhood of Electrical Workers, AFL-CIO, et al. (Texlite, Inc.), 119 NLRB 1792, 1794. 1E Neville Foundry Company, Inc., 122 NLRB 1187, 1189. That it was the union (as distinct from the employer association in the instant case) which sought to rely upon the continuing unaffected multlemployer bargaining unit is, in my judgment, irrelevant. 17 Pennsylvania Garment Manufacturers Association. Inc 125 NLRB 185. is Scougal Rubber Mfg Company, Inc, et al, 120 NLRB 470 19 Pioneer Holding Company d/b/a Blue and White Cab Co , 126 NLRB 956 20 Compare The Standard Register Company, Pacific Division, 120 NLRB 1361, 1363. n See also General Teamsters Local Union No 324, etc. (Cascade Employers Assn., Inc ), 127 NLRB 488, and Marcus Trucking Co, Inc, 126 NLRB 1080, where the Board held withdrawals not to have been accomplished. 22 Apart from the Board's most recent reliance upon estoppel as a basis for nullifying withdrawal from joint bargaining it has advanced a converse approach in assessing the intent to withdraw. Thus it has been held that the employer's desires to continue in a multiemployer bargaining unit and "to be bound in future collective bargaining by group rather than individual action" is "an essential basis for any finding that a multiemployer COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 209 b. The timely withdrawal A definition of what constitutes a "timely" withdrawal suffers from conflicting authority. In McAnary and Welter, Inc.,23 the employer withheld his withdrawal until after the agreement was negotiated and after actual signing by one of its cor- porate officers. This the Board held untimely . But, distinguishing this case in Textile, Inc.,24 where the Board held that withdrawal after refusing to sign a joint contract was timely, it was emphasized that throughout the multiemployer bargain- ing the employer constantly objected to the course being taken. No precise pattern emerges from a study of the remaining cases treating of the timeliness of an employer's withdrawal . Thus, in Benjamin Franklin Paint and Varnish Company, a Division of United Wallpaper, Inc., 118 NLRB 1007, it was held that withdrawal upon the expiration of multiemployer agreement was timely. In American Publishing Corp., 121 NLRB 115, 122, attempts of employers to with- draw, made after the first 6 months of a 2 -year contract, were clearly untimely (citing McAnary and Welter, Inc., supra ). In Krist Gradis, et al., 121 NLRB 601, 607, footnote 17, the withdrawal of a group of employers from a larger group , during the term of a joint contract was held "not untimely." And finally, in a situation suggesting the application of the previously discussed estoppel theory to determina- tions of timeliness it was held in a subsequent American Publishing Corporation, et al., decision 25 that withdrawal from multiemployer bargaining would not be per- mitted after commencement of representation proceedings before the Board, where the circumstances of the withdrawal, though known to the parties , were not dis- closed at the representation hearing. Consequently , the parties to the individual contract were deemed estopped. This review of the cases dealing with timeliness of withdrawal suggests an ab- sence of any pattern or formula that has been consistently applied. On the contrary, I am left with the distinct impression that the factor of timeliness of withdrawal is to be applied on an ad hoc basis, to be determined by the peculiar circumstances of the case at hand.26 4. Conclusions a. Vonachen's Junction Vonachen's withdrew from the Association 23 months before the filing of the relevant charge in this proceeding. During all the intervening period Association bargaining continued without success. During the same period Vonachen and Respondent have been operating under an individual collective agreement. Because the Association and Respondent had been negotiating for 3 weeks, back in January 1958, before Vonachen formally withdrew and signed its contract with Respondent, General Counsel insists that during all the intervening months, to the present time, Vonachen's is nonetheless wedded to multiemployer bargaining. unit is appropriate." Chicago Metropolitan Home Builders Association, 119 NLRB 1184 See also Harbor Plywood Corporation, et al, 119 NLRB 1429. This suggests the need of a demonstrated intent to remain within the larger unit as evidence of the continuing appropriateness of the larger unit The Board has not repudiated this criteria. Because, however, such it requirement is completely contrary to the theory of the Board's subsequent cases, namely, that the intent to remain is presumed until the contrary has been unequivocally manifest, I shall assume for the present purposes that this theory expressed by the Board in Chicago Home Builders is no longer the law. zs 115 NLRB 1029 at 1031 24 Supra, footnote 15, 119 NLRB 1792 at 1794. 25 124 NLRB 1227 is In Retail Associates, Inc, 120 NLRB 388, the Board also considered the complica- tions arising from withdrawal from multiemployer bargaining This case became the subject of considerable court litigation (42 LRRM 2031 ; 43 LRRM 2004, 43 LRRM 2029) and culminated in the Board's order of December 5, 1958, vacating its Decision and Direc- tion of Election insofar as they hold that the appropriate bargaining unit is a multi- employer unit. Because this latest order has thus cast doubt upon the continued existence of the original decision and because the Board itself has refused to rely upon its decision in several instances (Detroit Window Cleaners Union Local 139, etc, 126 NLRB 63; Marcus Trucking Company, Inc, 126 NLRB 1080; General Teamsters Local Union No 324, etc (Cascade), 127 NLRB 488, Cosmopolitan Studios, Inc, 127 NLRB 788) I do not believe it necessary to burden this report with further references to the case. 599198-62-vol 131-15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nothing in the record suggests that relations between Vonachen's and Respondent are strained, or that Vonachen's employees have suffered in any way by the long- standing contractual arrangement. To insist, then, at this late date, that Vonachen's withdrew from the Association at the wrong time and in the wrong fashion would serve only to encourage the destruction of a stable relationship and to add to the existing multiemployer stalemate. The processes of the Act were never so intended. Insofar as the technical adequacy of Vonachen's withdrawal is concerned, it is clear that its intent to withdraw has been consistently manifest; witness its two formal notifications so stating (supra). To say that Vonachen's did not give ade- quate notice in these premises is tantamount to a conclusion that no notice of any kind would be acceptable. Upon the foregoing and a review of the entire record, I have no doubt that the Association and its representatives were as aware of Vonachen's withdrawal as was the contracting union. Nor do I find anything in the record that would suggest that Vonachen's equivocated in the matter or did anything at any time that could be viewed as inconsistent with its desires to be rid of group bargaining.27 Accordingly, I would find that Vonachen's intent not to be bound by multiemployer bargaining was unequivocally manifest. While I am not disposed to reconcile the conflicting criteria as to what is an appro- priate time to withdraw I would suggest that 3 weeks after the beginning of 23 fruit- less months of Association bargaining should be acceptable. Any other conclusion would suggest that an employer may never withdraw from Association bargaining once it begins; for from that time on the parties are either bargaining or living with the contract they have bargained. None of the cases I have reviewed earlier can thus support a bargaining obligation in perpetuity and I reject it. Accordingly I find and conclude that Vonachen's Junction's unequivocal intent to withdraw from multiemployer bargaining was manifest at a time when to do so would stabilize the relationship existing between its employees and their chosen representa- tive, the Respondent 28 As I fail to see how the contracts so executed constitutes a refusal to bargain in violation of Section 8(b)(3), I shall recommend the complaint be dismissed as it relates to this particular employer. b. Steak House The conduct of Robert Ashmore, Steak House owner, must necessarily be con- sidered in the light of what is an unequivocal manifestation of an intent to withdraw from multiemployer bargaining, because, unlike the obvious and long-standing dis- association of Vonachen's Junction, Ashmore's activities in behalf of the Steak House typifies the "negative approach." Thus, according to the Association's own records he failed to maintain his membership in that body by paying dues, as re- quired by the Association's bylaws. And he failed to contribute, as had 27 others, his assessment to defray the collective-bargaining expenses. It is also to be noted, of course, that, unlike other employers who revoked their bargaining authorizations but whose names the Association continued to carry on its list of those obligated to a multiemployer bargaining arrangement,29 Ashmore did not formally revoke his au- thorization. There is sufficient credible evidence in the record, however, to satisfy me that whatever failed for lack of formality was accomplished nonetheless to the satis- faction of both parties to the multiemployer arrangement. Thus a list was furnished as early as April 22, 1959, to Joseph Hecht, the insurance agent engaged to explore experience figures relative to group insurance, which list included, according to its title, "RESTAURANTS WHICH HAVE SIGNED BARGAINING AUTHORIZA- TIONS OF GREATER PEORIA RESTAURANT ASSOCIATION." This list, fur- nished by Scheinman, the representative of the Association, did not include the Steak ar Cf. Anderson Lithograph Company, Inc., et al ., 124 NLRB 920 ; Cosmopolitan Studios, Inc, 127 NLRB 788 m International Brotherhood of Electrical Workers, AFL-CIO, et al. ( Texlite, Inc), 119 NLRB 1792, 1794, supra, footnote 15; Colonial Cedar Company, 119 NLRB 1613, 1614, supra, footnote 14; Neville Foundry Company, Inc, 122 NLRB 1187, 1189, supra, footnote 16 20 This information was supplied in the record by a chart (Respondent's Exhibit No 3) the accuracy of which was conceded but its relevancy protested by counsel for the General Counsel. I reaffirm my ruling admitting this chart. Among the restaurants for whom assessments and dues had not been received were : Vonachen's Junction, the Original Murphy's, and Hager's Stage Coach Inn. All had formally revoked. COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 211, House 30 In addition to the foregoing evidence of the Association's actual aware- ness of the Steak House's intent not to be included in the Association bargaining, there is the previously considered testimony of both its owner, Ashmore, and Re- spondent's business representative, Rimington (supra) that he wanted no part of the Association, considered himself out of the Association, and wished to bargain with Respondent separate and apart from the Association. The Respondent was thus equally aware of Ashmore's feelings in the matter. Upon the foregoing I conclude and find that Robert Ashmore, in behalf of the Steak House, unequivocally manifested an intent not to be included in the Association bargaining then in progress.31 It remains to be seen, however, whether he accom- plished this at an appropriate time. In the summer of 1959 Ashmore advised Respondent's Rimington that he was not part of the group bargaining, and by April 22, 1959, the Association's Scheinman, according to the list he supplied Hecht, was aware that no authorization for the Steak House was on file. Both April 1959 and the summer of 1959 occurred during a period of continuing negotiations; one before and one after the strike was called. All that is presented for determination by these circumstances is whether these dates of notice to the par- ties constitute an appropriate time. Under the conflicting criteria revealed by a study of the cases this is not a simple task. In fact, I am at a loss to suggest, on the basis of chronology alone, whether it was appropriate or not. Instead I must rely upon an analysis of the offense charged, namely a failure and refusal on the part of the Re- spondent Union to bargain with the Association insofar as Steak House's employees are concerned. Because Steak House and the Respondent actually did something more than simply fall or refuse to bargain, that is to say, because they indulged in the positive action of negotiating and executing an individual contract, their respective motives for doing what they did, and in consequence, the good or bad faith of their positive action comes into issue. I am called upon, therefore, to determine not merely whether Respondent's separate contract amounted to 'a failure to bargain with the Association but indeed whether it was action taken in bad faith. Moreover, to the extent that the Steak House was a party to the contract, I must assess its motives as well 32 This I believe to be crucial to the determination of whether the time was appropriate, because under the most recent theory expounded by the Board a party's ill-motivated withdrawal estops his subsequent reliance upon it 33 Precisely, there- fore Lam called upon to decide two items: (1) whether Ashmore, deciding when he did to. abandon the Association, did so in good or bad faith, and (2) whether Re- spondent, in bargaining with Ashmore and signing a contract, did so knowing Ash- more had withdrawn in bad faith, or did so for some devious reason of its own, not otherwise described in the record. I see no such evidence of bad faith here. Robert Ashmore wanted to get out of the Association for reasons best known to him (as did numerous other members) and, with the knowledge of both Association and Union he did so. Ashmore, to his credit, asked for and got a collective agree- ment covering his employees, the principal beneficiaries of these proceedings. The Union for its part negotiated and executed a contract with Ashmore when he asked for one. Certainly these circumstances do not, of themselves, add up to bad faith. Only a flouting of the law itself could , it seems to me, establish the ingredient of bad faith essential to finding an untimely withdrawal. The law, as reflected by the cases cited above, is not so clear asto suggest what is the precise time at which a with- drawal would be appropriate. Nor does this Trial Examiner presume to make a posi- tive judgment in the matter. Consequently, if we expect Robert Ashmore and the representatives of the Union to pattern their bargaining conduct upon proper timing, we are asking of them something that the present state of the law itself cannot supply. Consequently to expect Ashmore and the Union to second-guess the Board, the courts, and this Trial Examiner, is indeed a tender reed upon which to posit bad-faith bargaining as it is affected by timely or untimely action. Because, therefore, I have no reason to find that the Steak House's withdrawal from Association bargaining was not fully communicated to all parties in ,timely fashion and in good faith and because 30 Neither did the list include Vonachen's Junction nor Jumbo. For some reason not explained in the record it did include Hager's and Murphy's, both of whom had also formally resigned. I do not view this error as detracting, however, from the evident con- clusion that the Association was aware of the Steak House's and Vonachen's failure to authorize group bargaining. 3' Colonial Cedar Company, Inc., 119 NLRB 1613; Texlite, Inc, 119 NLRB 1792; Neville Foundry Company, Inc., 122 NLRB 1187, footnotes 14, 15, and 16, supra. ra Detroit Window Cleaners Union, Local 139, etc, 126 NLRB 63, supra. 83 Cases cited at footnotes 20 and 21 , supra. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I see no culpability by Respondent in these respects I shall recommend that the com- plaint be dismissed insofar as it alleges a refusal to bargain by negotiating a separate contract with the Steak House.34 B. The alleged restraint and coercion 35 1. Facts Upon the commencement of the strike against members of the Association, on June 5, 1959, the Respondent, through its leaders, Business Representative Anne Rimington, and her daughter Junetta Saxton, former secretary-treasurer of the Union and presently its full-time office employee, took the usual routine steps to insure that the picket lines were adequately manned and that the striking members were given proper instructions as to the performance of their assigned duties. These instructions and the exhortations that normally accompany strike activity were renewed periodi- cally and were always the principal item of business at the union meetings held regu- larly each month and at such special meetings as were called from time to time. In the process of maintaining the picket lines at adequate strength it is alleged that Respondent, through Rimington and Saxton, threatened certain employees with loss of employment and union benefits if they failed to participate in union or concerted activities. In support of these allegations employees Banks, Little, and Tompkins, all members of the Union,36 testified credibly, albeit vaguely and frequently in general terms, that pressure was put upon them to participate in the picketing then in progress. Employee Bamadine Tompkins, who had done some service on the picket line shortly after the strike began, sought and received from the Union temporary em- ployment and thereafter returned to full-time work at a restaurant then being struck. Early in July, Saxton telephoned Tompkins from union headquarters and asked her if she was going to picket. Upon receiving a negative reply, Saxton, according to Tompkins, said I done the lowest thing a creature could have done by going to work for another association restaurant... . She told me that after the strike was all over with, that maybe sometime I'd want a job in one of the hotels or restaurants and she wouldn't be able to do anything for me because other girls wouldn't want to be working with somebody who didn't picket. Tompkins further testified that at the regular August union meeting Rimington, in the course of her discussion of strike progress and of unwillingness of some members to picket, stated that these strong Union members know how to deal with these girls that don't picket and are not good Union members; she said did you ever work with anybody that wouldn't talk to you-it can make it mighty uncomfortable for them. Employee Sally Little testified that in August, after she had become tired of picketing and wanted to return to work, Rimington, according to Little's credited testimony, did tell me if you go back to work you would never be able to get a job in no other Union house and you would be black-balled. According to Little, Rimington made this or a similar remark each time Little ap- peared at union headquarters to collect her strike benefits. Despite her dissatisfaction 84A study of the cases dealing with the establishment and maintenance of multi- employer bargaining reveals an inclination on the part of the Board to require not only employer authorization of such bargaining but employee approval as well Thus, In Mohawk Rosiness Machines Corporation, 116 NLRB 248 the Board (citing the Pepsi- Cola Bottling Company of Kansa8 City case in 55 NLRB 1183 1186) stated that "a multiemployer bargaining unit is appropriate only if there is some indication that the employees in each of the constituent employer groups, which themselves would comprise natural and inherently appropriate units, have consented, expressly or otherwise, to be represented by a single bargaining agent in common with the employees of other employers " As the question of employee approval was never raised In the instant proceeding and as there has been an extensive history of bargaining on a multiemployer basis I shall assume for purposes herein that employees have consented to the arrangement carried on in their behalf Cf. Shamrock Dairy, Inc, et at, 119 NLRB 998, 1002. 85 Case No 13-CB-840 38 It is not clear from the record which of these employees have or have not maintained a status of paidup membership. COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 213 with picket duty Little continued with it from June to December 11, at which time she forsook the strike and went to work at the struck Palace Restaurant as a fry cook. Employee Flora Banks, whose picket duty for the first 21 weeks of the strike was interrupted by failing health, testified credibly that on one occasion she went to union headquarters and complained to Rimington of all the picketing she had been doing and the need for a steady job. Rimington, according to Banks, replied that if everybody felt like I did there wouldn't be anybody to picket and if anybody went scabbin' over picketing why they wouldn't have jobs when they came out 37 In rebuttal of the foregoing accounts of pressure placed upon employees to engage in picket activity Respondent called a considerable number of witnesses, and offered to call more, to attest to the fact that they never heard Rimington nor Saxton make any of the statements attributed to them either at meetings or in private con- versations. I place no weight upon their testimony for the simple reason that their failure to hear announcements or statements at union meetings throughout the summer of 1959 (at least 15 such meetings having been held) proves only that these particular people did not hear the statements being made. Nothing in the record suggests that they attended each meeting and each particular session (morning, after- noon, and evening) of each meeting. Furthermore, the fact that neither Rimington nor Saxton made statements of the nature alleged within the hearing of, or directly to, these people in no way proves that such statements were never made. On the credited testimony of those to whom the statements allegedly were addressed I have found that they were made.38 2. Analysis and conclusions Citation of authority is unnecessary to establish that statements of the sort quoted above necessarily tend to restrain and coerce employees. Section 7 of the Act, by its very language, gives them the right to give up picketing when they choose, or to refrain from it altogether, just as it permits them to return to the job from which they went on strike. I have no doubt that Respondent's agents, Rimington and Saxton, by the remarks quoted above, sought to, and in fact, did curtail these rights. The record is clear that the remarks were made to employees protesting their picket duty assignments and seeking to improve their meager income. Thus em- ployee Little could not "live out of the little money [she] was getting for strike benefit"; and employee Banks was under heavy debt buying a house. Although both protested to union officials that they were thus hard pressed and sought relief from the burden of picketing it is significant that they actively picketed for periods of time thereafter. I have, therefore, no alternative but to conclude that the threats of the Union's agents were effective. Upon this conclusion I further conclude and find that the Respondent has restrained and coerced employees in the exercise of their statutory rights and has thereby violated Section 8(b)(1)(A) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in section IV, above, occurring in con- nection with the operations of member restaurants of Greater Peoria Restaurant Association 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 commerce and the free flow of commerce. VI. THE REMEDY Having found that the Respondent has violated Section 8 (b) (1) (A) of the Act, it will be recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. I shall recommend that the Respond- ent and its agents be ordered to refrain from making threats of reprisal against s7 Employee Lucille Harper was also called by the General Counsel to testify as to her conversations with Rimington on the subject of picketing Because of her stated in- ability to quote Rimington, and the vague and disjointed testimony which she gave throughout her appearance on the witness stand , I place no reliance upon her accounts of the threats made to her and the reasons for them as In finding as I have, I reject as incredible the denials of both Rimington and Saxton of the statements attributed to them. In so doing , however, I do not intend in any way to detract from the reliance I have placed on the testimony of these witnesses respecting the general conduct of the Union's affairs and its negotiations with the association, as considered herein (supra). 214 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD nonstriking employees of the Association and those who fail or refuse to participate in picketing or other forms of concerted activity. Affirmatively I shall recommend that appropriate notices be posted by Respondent at its place of business . I shall not, however, require that such notices be furnished the member restaurants of the Greater Peoria Restaurant Association for posting by them if they so choose. The record in the instant case indicates that the membership of this Association is so fluid as to cast doubt on who should be furnished notices for posting; furthermore, the administrative details, including preparation and distribution of notices and verification of compliance, should not, in my judgment , be used in remedying mat- ters of such slight significance in the effectuation of the Act 39 CONCLUSIONS OF LAW 1. Cooks, Waiters and Waitresses Union, Local 327, and Peoria Local Joint Executive Board , Hotel and Restaurant Employees International Union , are labor organizations within the meaning of Section 2(5) of the Act. 2. Greater Peoria Restaurant Association is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By making threats of reprisal against nonstriking employees and those who failed or refused to participate in picketing or other concerted activity or who sought to withdraw from such activity during the course of a strike it was conducting against Greater Peoria Restaurant Association, the Respondent restrained and coerced employees in the exercise of their rights guaranteed by Section 7 of the Act and it thereby violated Section 8 (b) (1) (A) of the Act. 4. The aforesaid practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 8 Cf. N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, 226 , rehearing upon Court's refusal to require posting of notice denied 337 U.S. 950. Mister Softee of Michigan , Inc. and Charles Neal. Case No. 7-CA-2840 (2). April 24, 1961 DECISION AND ORDER On January 26, 1961, Trial Examiner James T. Rasbury 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 General Counsel filed exceptions to the Intermediate Report. 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 Intermedi- ate Report, the parties' exceptions, and the entire record, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications : 1. We agree with the Trial Examiner's finding that Respondent dis- charged Charles Neal on June 27,1960, in violation of Section 8 (a) (3) 131 NLRB No. 35.