Hotel, Motel & Club Employees' Union, Local 568

HOTEL, MOTEL & CLUB EMPLOYEES UNION, LOCAL 568 567 appearance at a shapeup to the date of the conclusion of the loading of the respective sh1p.2 Finally, it is recommended that the complaint be dismissed as to all other indi- viduals alleged therein to have been discriminatorily refused hire. 2In determining the amount of backpay due, of course , as previously recommended the Board's policy as set out in P. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Co., 8 NLRB 440, should he observed. Hotel, Motel & Club Employees' Union, Local 568, AFL-CIO and Leonard Shaffer Company, Inc., and Arthur A. Kober Company, Inc. Case No . 4-CC-163. January 25, 1962 DECISION AND ORDER On August 22, 1961, Trial Examiner Albert P. Wheatley 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 Intermediate Re- port attached hereto. Thereafter, the Respondent and General Coun- sel 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 proceeding to a three- member panel [Members Leedom, 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. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner with the following additions and modifications.2 We also agree with the General Counsel that an order directing the Respondent to cease and desist from engaging in such unfair labor i In adopting the Trial Examiner 's findings that the Respondent violated Section 8(b) (4) (1) and (ii) (B) of the Act, Members Fanning and Brown , for the reasons set forth in International Brotherhood of Electrical Workers, Local Union 861, et al (Plauche Elect) ic, Inc ), 135 NLRB 250, do not rely on Washington Coca Cola Bottling Works, Inc, 107 NLRB 299, 303, enfd 220 F. 2d 380, as precedent for the findings herein. Member Leedom would adhere to the principles of Washington Coca Cola , and relies on such case as additional precedent for finding a violation of Section 8 ( b) (4) (f) and (i1) (B) of the Act. n Although the Trial Examiner found that by its picketing the Respondent engaged In unfair labor practices within the meaning of 8(b) ( 4) (i) and (ii) (B) of the Act, lie did not specifically find that by such conduct the Respondent restrained and coerced the secondary person for unlawful objectives in violation of Section 8(b) (4) (1i) (B). We believe, as contended by the General Counsel, that such specific finding is warranted, and, accordingly , find that , in its aforesaid picketing the Respondent restrained and coerced the named secondary persons in violation of Section 8 (b) (4) (ii) (B) of the Act. Sheet Metal Workers International Association , Local Union No 299, AFL-CIO, et al. (S M. Eisner ( deceased ), et at, d/b/a S M Eisner and Sons ), 131 NLRB 1196. 135 NLRB No. 53. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices against the named persons and "any other persons" similarly engaged is likewise warranted under the circumstances of this case.' 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 Re- lations Board hereby orders that the Respondent, Hotel, Motel & Club Employees' Union, Local 568, AFL-CIO, its officers, agents, repre- sentatives, successors, and assigns, shall : 1. Cease and desist from inducing or encouraging any individual employed by Leonard Shaffer Company, Inc.; Arthur A. Kober Com- pany, Inc., Wolfson and Schnoll, Inc., Morris Newmark and Bros., Inc., Altman Bros., Inc., Allied Plastering Co., Inc., Energy Ele- vator Company, Henry S. Rau Company, G-M Iron Works, and Modern Floors, Inc., and any other person similarly engaged at the Locust Street construction site to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or com- modities, or to perform any services; or from threatening, coercing, or restraining the above-named persons or any other person similarly engaged at the Locust Street construction site where an object thereof is forcing or requiring Leonard Shaffer Company, Inc., Arthur A. Kober Company, Inc., Wolfson and Schnoll, Inc., Morris Newmark and Bros., Inc., Altman Bros., Inc., Allied Plastering Co., Inc., Energy Elevator Company, Henry S. Rau Company, Inc., G-M Iron Works, and Modern Floors, Inc., or any other person similarly engaged at the Locust Street Construction site to cease doing business with Locust Mid-City Club, or forcing or requiring Locust Mid-City Club to recog- nize or bargain with Hotel, Motel & Club Employees' Union, Local 568, AFL-CIO. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at Respondent Union's business offices and meeting halls, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by the authorized representative of the Respondent Union, be posted by the Respondent Union im- mediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all other 3 Our Order herein is not to be construed as prohibiting lawful primary picketing at the premises herein involved if they are now occupied by its Locust Mid-City Club employees 4In 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." HOTEL, MOTEL & CLUB EMPLOYEES UNION, LOCAL 568 569 places where notices to members are customarily posted. Reasonable steps shall be taken to insure that the notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for the Fourth Region, for posting, Leonard Shaffer Com- pany, Inc., Arthur A. Kober Company, Inc., Wolfson and Schnoll, Inc., Morris Newmark and Bros., Inc., Altman Bros., Inc., Allied Plastering Co., Inc., Energy Elevator Company, Henry S. Rau Com- pany, Inc., G-M Iron Works, and Modern Floors, Inc., willing, at all locations where notices to their respective employees are customarily posted. (c) Notify the Regional Director for the Fourth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply with the recommendations herein made. APPENDIX NOTICE TO ALL MEMBERS OF HOTEL, MOTEL & CLUB EMPLOYEES' UNION, LOCAL 568, AFL-CIO, AND TO ALL EMPLOYEES OF LEONARD SHAFFER COMPANY, INC., ARTHUR A. KOBER COMPANY, INC., WOLFSON AND SCHNOLL, INC., MORRIS NEWMARK AND BROS., INC., ALTMAN BROS., INC., ALLIED PLASTERING Co., ENERGY ELEVATOR COMPANY, HENRY S. RAU COMPANY, INC., G-M IRON WORKS, AND MODERN FLOORS., INC. 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 induce or encourage any individual employed by Leonard Shaffer Company, Inc., Arthur A. Kober Com- pany, Inc., Wolfson and Schnoll, Inc., Morris Newmark and Bros., Inc., Altman Bros., Inc., Allied Plastering Co., Energy Elevator Company, Henry S. Rau Company., Inc., G-M Iron Works, Modern Floors, Inc., and any other persons similarly engaged at the Locust Street construction site to engage in a strike or refusal in the course of his employment to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, to perform any serv- ices, of from threatening, coercing, or restraining the above- named persons, or any other person similarly engaged at the Locust Street construction site, with an object of forcing or re- quiring Leonard Shaffer Company, Inc., Arthur A. Kober Com- pany, Inc., Wolfson and Schnoll, Inc., Morris Newmark and Bros., Inc., Altman Bros., Inc., Allied Plastering Co., Energy Elevator Company, Henry S. Rau Company, Inc., G-M Iron 570 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD Works, Modern Floors, Inc., and any other persons similarly en-' gaged at the Locust Street construction site, to cease doing busi- ness with Locust Mid-City Club or forcing or requiring Locust Mid-City Club to recognize or bargain with' us in the absence of a certification as the bargaining representative of employees of Locust Mid-City Club. HOTEL, MOTEL & CLUB EMPLOYEES' UNION, LOCAL 568, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office (1700 Bankers Securities Building, Walnut & Juniper Streets, Philadelphia, Pennsylvania; Telephone Number, Pennypacker - 5-2612) if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed by Leonard Shaffer Company, Inc., and Arthur A. Kober Company, Inc., against Hotel, Motel & Club Employees ' Union, Local 568, AFL- CIO, herein called Respondent, a complaint was issued on March 24, 1961 , alleging violations of Section 8(b) (4) (i ) and (ii ) (B) of the National Labor Relations Act, as amended, herein called the Act. This proceeding, with all parties repre- sented, was heard before Albert P. Wheatley, the duly designated Trial Examiner, in Philadelphia, Pennsylvania, on June 20, 1961 . After the close of the hearing the General Counsel and the Respondent filed briefs 1 which I have considered in preparing this report. Upon the entire record and observations of witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS INVOLVED Respondent, in connection with a dispute with Locust Mid-City Club, a private dining club at 13th and Spruce Streets in Philadelphia , Pennsylvania, picketed a site several blocks away where an independent contractor and his subcontractors were engaged in the construction of a new club building for the Locust Mid-City Club and caused a complete stoppage of work. The record reveals that more than $50,000 worth of materials and supplies came to this construction site from-points and places outside of Pennsylvania and that the general contractor engages in ex- tensive work in States other than Pennsylvania and that such out-of -State business is in excess of $300,000. Respondent's contention that this matter should be dismissed on jurisdictional grounds is hereby rejected on the basis of Sheet Metal Workers International Associ- ation, Local Union No. 299, AFL-CIO, et al. (S. M. Kisner (deceased), et al. d/b/a S. M. Kisner and Sons), 131 NLRB 1196, and Plumbers Union of Nassau County Local 457, etc. (Jerry Bady, d/b/a Bomat Plumbing and Heating), 131 NLRB 1243. II. THE LABOR ORGANIZATION INVOLVED Hotel, Motel & Club Employees' Union, Local 568, AFL-CIO, is, and at all times material herein has been , a labor organization within the meaning of Section 2(5) of the Act. I The briefs were received In due course on July 28, 1961. HOTEL, MOTEL & CLUB EMPLOYEES UNION, LOCAL 568 571 III. THE UNFAIR LABOR PRACTICES The Facts Locust Mid-City Club (herein called Locust) at the time of the events involved herein operated a private dining club at 13th and Spruce Streets in Philadelphia, Pennsylvania. Respondent picketed at this location for a number of years (since 1956). The purpose of the picketing was to force Locust to recognize and bargain with Respondent. Prior to the events involved herein Locust acquired a new location at 1612-16. Locust Street (several blocks away from the 13th and Spruce Streets address noted above) and undertook to have a new building constructed thereon. Locust con- tracted with Leonard Shaffer Company, Inc., and Arthur A. Kober Company, Inc., as joint venturers, for the construction work. At the time of the events involved here- in, completion of the new building was scheduled for on or about April 1, 1961. The general contractors subcontracted a substantial portion of the work involved and at the time of the events involved herein the subcontractors working at the construc- tion site were Wolfson and Schnoll, Inc., Morris Newmark and Bros., Inc., Altman Bros., Inc., Allied Plastering Co., Energy Elevator Company, Henry S. Rau, Inc., G-M Iron Works, and Modern Floors, Inc. At no time material herein has Respondent had any dispute with the general contractors or with the subcontractors. As noted above, there was a dispute of longstanding between Locust and Respondent. While construction was going on and the building was about 96 to 97 percent completed, Respondent, on March 6, 1961, inaugurated a picket line at the construc- tion site on Locust Street? The picket signs at this location bore the same legend as did the signs carried by the pickets at 13th and Spruce Streets, to wit: Employ- ees of Locust Club on strike. At the time of the picketing at the construction site the general contractors were in complete control of the premises involved and no employee of Locust had performed any work at that site, or even been assigned duties there. Locust employees were then working at the 13th and Spruce Street location. As a result of the picketing at the construction site individuals employed by the general contractors and subcontractors refused to perform services for their respective employers, consequently the entire project was shut down until the picketing at the construction site was enjoined on March 27, 1961. In addition, truckdrivers approaching the construction site stopped and spoke to the pickets and then drove away without making the deliveries scheduled to be made. On or about May 1, 1961, construction work at the Locust Street site was com- pleted and Locust moved into this new building and began normal functioning there. Shortly thereafter the injunction heretofore mentioned was modified so as to permit picketing at this location and the picketing then resumed almost immediately. Conclusions The issue for decision herein is whether the facts set forth above warrant a find- ing and conclusion that Respondent's conduct at the construction site was with an object proscribed by Section 8(b) (4) (i) and (ii) (B) of the Act. If it was, then the Act was violated, otherwise it was not. There is no direct affirmative evidence that Respondent's picketing at the construction site was with an object proscribed by the Act-there rarely is in such situations. Nevertheless, the fair inference from the entire record is to the effect that this was Respondent's objective. This becomes apparent when it is realized that Respondent was seeking to force Locust to recog- nize and bargain with it, but that the conduct involved took place at a site not under the control of Locust and where none of Locust's employees were working or even assigned duties. In such a situation it seems reasonable to infer, and I do so infer, as the courts and this Board have on many occasions,3 that an object of such conduct was to force the secondary employers to cease doing business with the primary em- 2 Respondent previously had caused a brief shutdown of construction work by picketing the construction site In January 1961. The picketing was abandoned after several hours, apparently when a meeting between Respondent and Locust was arranged When the meeting with Locust produced no adjustment of the dispute and work on the new club building neared completion, Respondent reinstated its picket line at the construction site. 3 See, inter alia, Local 761, International Union of Electrical, Radxo and Machine Workers, AFL-CIO v. N L.R.B c6 G.E. Company, 366 U.S. 667; Moore Drydock Company, 92 NLRB 547; and Washington Coca Cola Bottling Works, Inc., 107 NLRB 299, 303, enfd. 220 F. 2d 380. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer (Locust) to force the primary employer to recognize and bargain collectively. Respondent urges that no further action be taken in this matter in view of the fact that the construction work has been completed and Locust is now carrying on its normal business at the former construction site . It is settled however, that an unfair labor practice proceeding is not mooted by either the termination of the particular incident giving rise to the violation or by the discontinuance of the total ,course of unfair conduct (N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 567- 568; N.L.R.B. v. Pool Manufacturing Co., 339 U.S. 577; and N.L.R.B. v. Local 74, United Brotherhood of Carpenters & Joiners of America, A. F. of L., et at. (Watson's -Specialty Store ), 341 U.S. 707, 715). ' IV. THE REMEDY Having found that'Respondent has engaged in unfair labor practices in violation of the Act, I recommend that Respondent, to effectuate the policies of the Act, cease and desist therefrom and take the affirmative action hereinafter specified. CONCLUSIONS OF LAW In summary, I find and conclude 1. The evidence adduced in this proceeding satisfies the Board 's requirements for the assertion of jurisdiction herein. 2. Leonard Shaffer Company, Inc., Arthur A. Kober Company, Inc., Wolfson and Schnoll, Inc., Morris Newmark and Bros., Inc., Altman Bros., Inc., Allied Plastering Co., Energy Elevator Company , Henry S. Rau Company, Inc., G-M Iron Works, and Modern Floors , Inc., are engaged in commerce or in an industry affect- ing commerce within the meaning of Section 8(b) (4) of the Act. 3. Hotel, Motel & Club Employees' Union, Local 568, AFL-CIO, is a labor organi- zation within the meaning of the Act. 4. By inducing and encouraging employees of Leonard Shaffer Company, Inc., Arthur A. Kober Company, Inc., Wolfson and Schnoll, Inc., Morris Newmark and Bros., Inc., Altman Bros., Inc., Allied Plastering Co., Energy Elevator Company, Henry S. Rau Company, Inc., G-M Iron Works, and Modern Floors, Inc., to engage in a strike or a refusal in the course of their employment to perform services with an object of forcing or requiring Leonard Shaffer Company , Inc., Arthur A. Kober Company, Inc., Wolfson and Schnoll , Inc., Morris Newmark and Bros., Inc., Altman Bros., Inc., Allied Plastering Co., Energy Elevator Company, Henry S. Rau Com- pany, Inc., G-M Iron Works , and Modern Floors, Inc., to cease doing business with Locust Mid-City Club and forcing or requiring Locust Mid -City Club to recognize or bargain with Hotel , Motel & Club Employees' Union, Local 568, AFL-CIO, in the absence of a certification of said Union as the bargaining representative of Locust Mid-City Club employees, Respondent engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii ) (B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Artesian Ice and Cold Storage Co. and United Packinghouse, Food and Allied Workers, AFL-CIO, Petitioner. Case No. 17-RC-3563. January 25, 1962 DECISION ON REVIEW AND ORDER On September 14, 1961, the Regional Director for the Seventeenth Region issued a Decision and Direction of Election in the above- entitled proceeding, finding that a contract between the Employer and General Teamsters, Chauffeurs and Helpers Union Local No. 460, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the In- 135 NLRB No. 63.