Local Joint Executive Board of San Diego

LOCAL JOINT EXECUTIVE BOARD OF SAN DIEGO 737 eluding professional , office, clerical, and custodial employees , guards, and super- visors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act. 6. On and since July 1, 1959, Shopmen's Local Union No. 486 of the Interna- tional Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, has been and is the majority representative of the employees in the above-described appropriate unit for purposes of collective bargaining in respect to rates of pay, wages, hours of employment , and other terms and conditions of employment. 7. By refusing on July 2, 1959, and thereafter, to recognize and to bargain col- lectively with the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Local Joint Executive Board of San Diego , comprising Waiters and Bartenders Local 500 and Cooks and Waitresses Local 402, affiliated with Hotel and Restaurant Employees and Bar- tenders International Union, AFL-CIO and W. D. Evans d/b/a The Evans Hotels operating the Bahia Motor Hotel. Case No. 21-CP-35. August 4, 1961 DECISION AND ORDER STATEMENT OF THE CASE Upon a charge filed on December 13, 1960, by W. D. Evans d/b/a The Evans Hotels, hereinafter called Evans, the General Counsel of the Board, by the Regional Director for the Twenty-first Region, issued a complaint dated December 28, 1960, against Local Joint Ex- ecutive Board of San Diego, comprising Waiters and Bartenders Local 500 and Cooks and Waitresses Local 402, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, hereinafter called Respondent or Union, alleging the vio- lation of Section 8(b) (7) (B) of the Act. A copy of the charge was duly served on Respondent. The complaint alleges in substance that since on or about December 14, 1960, the Respondent has picketed a motel of Evans at San Diego, California, with an object of (a) forcing Evans to recognize and bar- gain with Respondent as the representative of Evans' employees, and (b) forcing Evans' employees to accept and select Respondent as their representative, that Respondent was not at the time of such picketing, and is not now, the certified representative of such employees, and that such picketing was conducted within 12 months after a Board election. On or about January 23, 1961, the Respondent filed an answer to the complaint, denying only that it had picketed as alleged and that the picketing was for the objects alleged. On January 20, 1961, desiring to avoid the need for a hearing, the 132 NLRB No. 56. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties executed a stipulation of facts, containing an agreed statement of facts. At the same time the parties filed a motion to transfer pro- ceedings to Board, which contained a request that the case be trans- ferred to the Board. The motion set forth the agreement of the parties that the charge, complaint, answer, and stipulation of facts constitute the entire record in the case, and contained a waiver by the parties of any hearing before a Trial Examiner, the making of findings of fact and conclusions of law by a Trial Examiner, and the issuance of an Intermediate Report and Recommended Order. The motion author- ized the Board to adopt findings of fact and conclusions of law, and to issue a Decision and Order. The motion further requested that, if it was granted, the Board fix a time for filing briefs and for filing a request for oral argument. On February 7, 1961, the Board issued an order (1) transferring the instant case to the Board, for the purpose of making findings of fact and conclusions of law , and issuing a De- cision and Order, (2) approving the stipulation of facts, and (3) allowing the parties until February 27, 1961, to file briefs and request oral argument. This date was subsequently extended to March 27, 1961. On February 27, a brief was filed by the General Counsel. None has been filed by the Respondent, and no request for oral argument has been received from any party. 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 [Chairman McCulloch and Members Leedom and Brown]. Upon the basis of the foregoing stipulation, the General Counsel's brief, and the entire record in this case, the Board adopts the following : FINDINGS OF FACT 1. THE BUSINESS OF EVANS Evans operates a motel in San Diego, California, consisting of ap- proximately 125 units, a restaurant, coffeeshop, and several bars. His annual gross volume of business is in excess of $1,000,000. During 1960, Evans purchased for resale in said restaurant, coffeeshop, and bars, beverages originating out of the State valued in excess of $50,000. During 1960, more than 3 percent of Evans' guests were out- of-State residents and more than 75 percent of such guests remained at the motel for less than 1 month. We find that Evans is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert juris- diction herein. H. THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of the Act. LOCAL JOINT EXECUTIVE BOARD OF SAN DIEGO M. THE UNFAIR LABOR PRACTICES A. The Facts 739 On July 17, 1958, Respondent called a strike of Evans' employees and caused them to picket its premises from that date to October 1958, and from May 1959 to January 4, 1961. Until December 16, 1960, the picket sign bore the following legend : "On Strike-Members of the Waiters and Bartenders Local 500 and Cooks and Waitresses Local 402. Please do not patronize." In the meantime, the following events occurred : On October 27,1959, a Trial Examiner of the Board issued an Inter- mediate Report finding that Evans had violated Section 8(a) (2) and (1) of the Act by dominating and interfering with the formation and administration of Bahia Employees Association, and by engaging in surveillance of the union activities of employees and recommending appropriate remedial action.' On February 8, 1960, the Regional Director determined that Evans had complied with the remedial pro- visions of the Intermediate Report and closed the case. In a subse- quent case, on July 19, 1960, a Board Trial Examiner issued an Intermediate Report finding that (a) Evans had violated Section 8 (a) (3) and (1) of the Act by refusing to hire an applicant because of his membership in the Union, and (b) Evans had violated Section 8 (a) (1) of the Act by interrogation and threats.2 The Trial Examiner recommended appropriate remedial action by Evans. On December 1, 1960, the Regional Director notified the Union that his records indi- cated compliance by Evans with the terms of the Trial Examiner's recommended order and that, unless the Union submitted advice to the contrary, by December 8,1960, the case would be closed. No reply having been received to this letter,' the Regional Director on Decem- ber 21, 1960, advised the Union that the case was closed. In the meantime, on November 30,1960, an election was conducted by the Board, upon the petition of Evans, among his employees. The Union appeared on the ballot, and received only 4 votes, 53 votes being cast against it. Nine ballots were challenged. On December 14, 1960, the Regional Director certified the results of the election.' On December 2, Respondent's picket captain solicited an employee of Evans to join Respondent. On December 5, Respondent filed a third charge against Evans in Case No. 21-CA-4229 (not published in 1 Case No. 21-CA-3336 ( not published in NLRB volumes). The Union was the Charging Party in that case. 2 Case No. 21-CA-3890 (not published in NLRB volumes ). Here, too, the Charging Party was the Union 3 The instant Respondent had failed to answer a similar letter addressed to it in Case No. 21-CA-3336, prior to the closing of that case. Case No 21-RM-613 (not published in NLRB volumes). 614913-62-vol 132-48 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB Volumes). 5 On December 19,1960, the Regional Director noti- fied Respondent of the dismissal of the charge, and the time for appeal- ing from such dismissal expired without any appeal being filed. On December 15, Respondent notified Evansby letter that in view of the recent election the Respondent disclaimed the right to represent any of Evans' employees, and the letter concludes : "Henceforth picketing will take place solely for the purpose of calling attention to the unfair labor practices committed by you." On December 16, Respondent altered its picket signs to read : We protest multiple unfair labor practices of Bahia.' Local Joint Executive Board Locals 402 and 500. On the reverse side, the new picket signs state : In the last 3 years Bahia has : 1. Formed a fraudulent labor union; 2. Spied on its employees; 3. Discriminated against union members. On December 30, the Board's General Counsel petitioned for an in- junction against the picketing and on January 4 the picketing ceased. The picketing occurred at the main entrance to Evans' motel, which entrance is used by his employees and deliverymen as well as by guests. B. Discussion Respondent concedes, and it is found, that at all times prior to November 30, 1960, the date of the election, an object of the strike and picketing was to obtain a collective-bargaining contract from Evans and to induce his employees to join Respondent. Presumably, it is Respondent's position that after that date the sole object of the picket- ing was to protest Evans' unfair labor practices. However, there was no outward manifestation of such alleged change until December 15, when the disclaimer letter was written. Accordingly, there is clearly no basis for inferring any change in object until that date.' We find therefore with respect to the picketing from December 1 through 15, that an object thereof was, as theretofore, to obtain a contract and organize Evans' employees. As such picketing is not alleged to be unlawful,' we do not pass on its legality, but find only that the object of the Union's picketing continued unchanged until December 16. We turn now to the picketing on and after December 16. Despite the 5 The charge alleged only interference by Evans with the November 30 election by the displaying of an altered specimen ballot. However, no objections to the election were filed. 6 " Bahia" is the name of the motel operated by Evans, which is here involved Evans is referred to as "Bahia" in the stipulation of facts. 7 This is confirmed by the solicitation of an employee on December 2 to join the Union, as noted above. 8 The complaint attacks only the subsequent picketing LOCAL JOINT EXECUTIVE BOARD OF SAN DIEGO 741 Union's self-serving disclaimer of that date and the change in the legend on the picket signs, all the circumstances taken together here support the conclusion that the Union's purpose in picketing continued unchanged after December 15,1960 .1 Apparently it is the Union's position that this conclusion is rebutted by the fact that, as found by the Board Trial Examiners, Evans had engaged in the unfair labor practices referred to in the picket signs. However, it is difficult to believe that the Union was on December 15, 1960, so concerned over these unfair labor practices as to wish to picket Evans for that reason alone. By that time the Regional Director, with the acquiescence of the Union, had determined that Evans had reme- died the unfair labor practices found by the Trial Examiners to have been committed. It is accordingly not apparent what further cor- rective action, short of recognition, the Union hoped to secure by publicizing the foregoing unfair labor practices. Moreover, it seems to us that had the Union been genuinely concerned over any inadequacy in the remedial action taken by Evans it would have referred thereto in its picket signs before December 16. So far as the record shows, nothing occurred on or about that date to demonstrate the inadequacy of such remedial action. The most recent significant event was the Regional Director's certification of the results of the election on De- cember 14, 1960. The inference is inescapable that the Union believed that such certification terminated its right to picket for recognition or for organizational purposes,1° and that it was therefore necessary to change or conceal the object of any further picketing.il The fact that the asserted object of the picketing after December 15 related to such an obsolete matter as the remedied unfair labor practices, convinces us that the Union chose the alternative of concealment, and that the true object of the picketing after, as.before, December 15, 1960, was to force Evans to recognize or bargain with the Union as the representative of his employees, and to force Evans' employees to accept the Union as such representative. Since such picketing occurred within 12 months after a valid election, which was lost by the Union, we find that the picketing after December 15, 1960, violated Section 8 (b) (7) (B) of the Act.12 e See J C. Penney Company, Store No 309, 120 NLRB 1535, 1536-1537. 'Olt seems arguable that under a strict reading of the Act, that right terminated on November 30, 1960, the date of the election . However, that issue is not before us. "It is true that on December 15, 1960, there was pending before the Regional Director the Union 's latest charge, alleging interference with the election by displaying an altered sample ballot. However, this matter is not referred to in the picket signs, and was given so little weight by the Union, itself, that it did not appeal from the Regional Director's refusal to issue a complaint on that charge , or file objections to the election because of such alleged interference . In any event , there was no significant development with respect to that charge on December 15 "As no violation of Section 8(b) (7) (C) of the Act is alleged here, it is not necessary to consider the applicability of the "publicity " proviso in section 8 (b) (7) (C). 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with the operations of Evans set forth 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. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall recommend that it cease and desist therefrom and take certain affirinative action that we find necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, we adopt the following : CONCLUSIONS OF LAW 1. W. D. Evans d/b/a The Evans Hotels, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing Evans from December 16, 1959, to January 4, 1960, with an object of forcing and requiring Evans to recognize and bar- gain with the Respondent as the collective-bargaining representative of Evans' employees and of forcing and requiring Evans' employees to accept and select the Respondent as their bargaining representative, although Respondent was not currently certified as such representa- tive and a valid election had been held within 12 months under Section 9 (c) of the Act, the Respondent engaged in unfair labor practices within the meaning of Section 8 (b) (7) (B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 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, Local Joint Exec- utive Board of San Diego, comprising Waiters and Bartenders Local 500 and Cooks and Waitresses Local 402, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL- CIO, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from picketing or causing to be picketed, or threatening to picket or cause to be picketed, W. D. Evans d/b/a The Evans Hotels, San Diego, California, under conditions prohibited by LOCAL JOINT EXECUTIVE BOARD OF SAN DIEGO 743 Section 8(b) (7) of the Act, where an object thereof is forcing or requiring the aforesaid Company to recognize or bargain with the Respondent as the representative of its employees, or forcing or requir- ing the employees of the aforesaid Company to accept or select the Respondent as their collective-bargaining representative. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in the Respondent's business offices and meeting halls, copies of the notice attached hereto marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director for the Twenty- first Region, shall, after being duly signed by official representatives of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Twenty-first Region signed copies of the aforementioned notice for posting by W. D. Evans d/b/a The Evans Hotels, if he be willing, in places where notices to employees are customarily posted. Copies of said notice, to be fur- nished by the Regional Director for the Twenty-first Region, shall, after being signed by the Respondent, as indicated, be forthwith re- turned to the Regional Director for disposition by him. (c) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith. ' In 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." APPENDIX NOTICE TO ALL MEMBERS OF LOCAL JOINT EXECUTIVE BOARD OF SAN DIEGO, COMPRISING WAITERS AND BARTENDERS LOCAL 500 AND COOKS AND WAITRESSES LOCAL 402, AFFILIATED WITH HOTEL AND RESTAU- RANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION, AFT, CIO, AND TO ALL EMPLOYEES OF W. D. EVANS D/B/A THE EVANS HOTELS 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, under conditions prohibited by Section 8(b) (7) of the Act, picket or cause to be picketed, or threaten to picket or cause to be picketed, W. D. Evans d/b/a The Evans Hotels, San 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Diego, California, where an object thereof is to force or require the aforesaid Company to recognize or bargain with us as the representative of its employees , or to force or require the em- ployees of the aforesaid Company to accept or select us as their collective-bargaining representative. LOCAL JOINT ExEcuTIvE BOARD OF SAN DIEGO, COMPRISING WAITERS AND BAR- TENDERS LOCAL 500 AND COOKS AND WAITRESSES LOCAL 402, AFFILIATED WITH HOTEL AND RESTAURANT EM- PLOYEES AND BARTENDERS INTERNA- TIONAL UNION, 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. The Great Atlantic & Pacific Tea Company, Inc. and Retail Clerks International Association , AFL-CIO,' Petitioner The Great Atlantic & Pacific Tea Company, Inc. and Meat Cutters, Packinghouse & Allied Food Workers, Local Union 433, AFL-CIO, Petitioner. Cases Nos. 12-RC-1080,12-RC-10871 12-RC-110, and 12-RC-1104. August 4, 1961 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held before Frank James Kruzich, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. These cases are hereby consolidated for purposes of decision. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman McCulloch and Members Leedom and Brown]. Upon the entire record in these cases, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. ' The names of the Employer and Petitioner appear as amended at the healing 132 NLRB No. 47.