Local Joint Executive Board

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Joint Executive Board of Las Vegas , Nevada, Namely Culinary Workers, Local 226, and Bartenders Union, Local 165 , Affiliated with Hotel , Restaurant & Barten- ders International Union, AFL-CIO, and Custom Cater- ing, Inc., d/b/a Blue Onion. Case 31-CP-65 April 30, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS Upon a charge filed by the Charging Party, Custom Catering, Inc., d/b/a Blue Onion, the Company, on July 7, 1969, the General Counsel of the National Labor Relations Board by the Regional Director for Region 31 issued a Complaint and Notice of Hearing, dated August 6, 1969, against the Respondents, Local Joint Executive Board of Las Vegas, Nevada, namely Culinary Workers, Local 226, and Bartenders Union, Local 165, affiliated with Hotel, Restaurant & Bartenders Interna- tional Union, AFL-CIO. The complaint alleges in sub- stance that the Respondents engaged and are engaging in unfair labor practices within the meaning of Section 8(b)(7)(B) of the National Labor Relations Act, as amend- ed. In its duly filed answer, the Respondents admit certain allegations of the complaint, deny all unfair labor practice allegations, and set up certain affirmative defenses. On October 7, 1969, the parties filed a motion with the Board to transfer the proceedings to the Board. In that motion the parties agreed in effect that the formal papers filed in this proceeding and a Stipulation of Facts, together with exhibits attached thereto, would constitute the entire record in the case and agreed that no oral testimony was necessary or desired. They waived their right to a hearing before a Trial Examiner, the making of findings of fact and conclusions of law by a Trial Examiner, and the issuance of a Trial Examiner's Decision and Recommended Order. The parties reserved the right to file briefs. The Board granted the motion on October 9. The General Counsel and Respondents filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. The Board has considered the entire record in this case, including the briefs of the General Counsel and Respondents, and makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Custom Catering through the Blue Onion is engaged in a drive-in restaurant operation. Richard Longmire owns 56 percent of its stock. He also owns 80 percent of the stock of Hamburger Hollow Restaurant and was the sole proprietor of Humdinger Restaurant until it closed on December 4, 1968. All three restaurants are located in Las Vegas, Nevada. Longmire and Jack J. Pause], minority stockholder in Blue Onion and Ham- burger Hollow, were respectively the president and vice president of those two companies. On the operational level, Longmire directly managed the three restaurants including planning menus, purchasing supplies, and han- dling advertising. He also selected and trained personnel, signed payroll checks, and established and carried out labor policy. There has been some interchange of person- nel among the restaurants. In view of the foregoing, we find that the Blue Onion, Hamburger Hollow, and Humdinger Restaurant while in operation constituted a single employer within the meaning of Section 2(2) of the Act, at least for purposes of determining the Board's jurisdiction.' The record shows that during 1968 purchases of meat totaling $35,234 were made for the Blue Onion and Hamburger Hollow from the New York Meat Company located in the State of Nevada, the latter company, however, received the products directly from outside the State of Nevada. Additionally, the record shows that for a 12-month period ending March 31, 1968, the combined gross revenue of the three restaurants exceeded $500,000. Accordingly, we find that the Employer's operations affect commerce within the mean- ing of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to'assert jurisdiction in this proceeding.' II. THE LABOR ORGANIZATIONS INVOLVED The parties agree, and we find, that Local Joint Execu- tive Board of Las Vegas, Nevada, namely Culinary Workers, Local 226, and Bartenders Union, Local 165, affiliated with Hotel, Restaurant & Bartenders Interna- tional Union, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Company through its membership in the Southern Restaurant and Bar Association was a party to a contract with the Respondents. However, on January 4, 1968, it sent a letter to the Respondents terminating insofar as it was concerned the contract as of March 10, 1968- the renewal date of the contract-and in effect withdraw- ing the authority of the Association to bargain on its behalf. On March 26, union representatives met with company officers around 11:15 a.m. and requested they agree to the contract being negotiated by the Unions with the Association. The request was refused and around 11:40 the Respondents commenced picketing the Blue Onion with signs reading: ' See Mendenhall Trucking, Inc., 153 NLRB 1276 2 Somerset Manor, Inc , 170 NLRB No 185, Cedar Hills Theatres, Inc , 168 NLRB 871 182 NLRB No. 40 LOCAL JOINT EXECUTIVE BOARD 251 UNFAIR BLUE ONION CULINARY WORKERS UNION 226 AND BARTENDERS UNION 165 SANCTIONED BY CENTRAL LABOR COUNCIL The Unions and Company met later that day, there was some unsuccessful discussion of contract terms Near the end of the meeting a company officer asked how he could get the pickets removed and was told to sign the contract The picketing continued On April 25, 1968, the Company filed a petition seeking to determine if the Respondents were the majority repre sentatives of its employees3 and on July 17, 1968, the Regional Director issued his Decision and Direction of Election 4 An election was held on August 14, 1968 The Unions did not receive a majority of valid votes cast However, upon objections duly filed by the Respondents, the Board on March 21, 1969, set aside the election and directed that a second election be held ° That election took place on April 24, 1969 The Respondents received I vote, there were 14 against and 14 challenged Again the Respondents filed timely objections The Regional Director in his Supplemental Decision, Order, and Certification of Results' found the objections to be without merit and sustained eight of the challenges Six of those eight he upheld on the ground that as the employees had been engaged in an economic strike since March 26, 1968, or for more than a year prior to the date of the second election, and had been perma nently replaced, they were not eligible voters, two he found ineligible on grounds unrelated to the strike As the remaining unresolved challenges could not affect the outcome, the Regional Director certified that no labor organization had been selected as the employees' bargaining representative Thereafter, the Respondents filed a request for review of the Regional Director's action On June 24, 1969, the request was denied 1969, in compliance with a temporaNy injunction issued by the United States District Court of Nevada the previ- ous day The General Counsel contends, as the complaint alleg- es, that the picketing after June 2, 1969, when the Regional Director certified the results of the second election, violated Section 8(b)(7)(B) of the Act That section, in short, makes it unlawful for a union to picket with an organizational or recognitional object where within the preceding 12 months a valid election under Section 9(c) of the Act has been held As outlined above, the Respondents began picketing when the Company failed to agree to the Association contract and stated the pickets would be called off if the Company signed the contract The picketing was thus clearly in support of Respondents' demands that the Company sign a contract and, consequently, had a recognitional objective 3 Furthermore, at all times the picket signs have remained unchanged, and the Respondents have never disclaimed an interest in having the Company sign a contract or in having it otherwise accord them recognition In fact, they do not contend that the object of their picketing after the election on April 24, 1969, is one that takes it outside the proscription of Section 8(b)(7)(B) Rather, they contend the picketing was not unlawful because the election was not "valid" under Section 9(c) of the Act In support of their position they argue, first, that certain striking employees were improperly denied the right to vote, second that the Board was without jurisdic- tion under the statute and its standards to hold the election, and, third, that the election proceeding was a nullity because Respondents were denied the right to litigate whether or not the Company's alleged doubt raising a question concerning representation with respect to the Union's majority status was supported by objec- tive considerations Each of these arguments had been raised at some stage of the representation proceeding and rejected as without merit by the Regional Director, whose result was affirmed by the Board in denying Respondents' request for review of the Regional Director's decisions H As stated above, the Respondents began picketing the Blue Onion on March 26, 1968 The picketing contin ued till June 2, 1969 when the Blue Onion temporarily closed down, but resumed on July 4, 1969, when the restaurant reopened It was terminated on August 22, Case 31-RM-132 The appropriate unit was all employees of the Employer at its Las Vegas operation excluding office clerical employees professional employees guards and supervisors as defined in the Act Custom Catering Inc d/bla Blue Onion 175 NLRB No 3 Issued June 2 1969 On July 10 1969 the Respondents here filed a charge in Case 31-CA-1504 alleging that the Company violated Sec 8(a)(2) of the Act On July 22 1969 the Regional Director for Region 31 dismissed the charge for lack of sufficient evidence to support its allegations The Respondents appealed to the General Counsel The appeal was denied on August 14 1969 " See Las rence Typographical Union No 570 (Kansas Color Press) 158 NLRB 1332 Hoisting and Portable Engineers Local Union 101 Operating Engineers (Sheri+ ood Construction Co) 140 NLRB 1175 " The jurisdictional and objective considerations issued were reject ed by the Regional Director in his original Decision and Direction of Election in Case 31-RM-132 issued July 17 1968 Respondents Request for Review of that Decision filed July 29 1968 was denied by the Board on August 2 1968 These two matters were also raised in the Respondents Request for Review of the Regional Directors Supplemental Decision issued November 12 1968 dealing with the challenges and objections to the first election As to those matters the Board on January 17 1969 denied review of the Regional Director s rejection of those objections as without merit The issue concerning the right of certain strikers to vote was rejected as without merit in the Regional Directors Supplemental Decision of June 2 1969 dealing with the second (April 24 1969) election and was the subject of the Respondents Request for Review of that Supplemental Decision In his decision the Regional Director noted inter alia that the ballots of the striker voters would not be sufficient to affect the results of the election even if they were counted In any event the request for review was denied by the Board on June 24 1969 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find it unndcessary to pass on the Regional Director 's action in sustaining 6 of the 14 challenges on the ground that ;they -were cast by ineligible strikers. As to the two other challenges which he sustained,, he found the voters ineligible on grounds unrelated to the strike. We affirmed this action in our June 1969 denial of the Respondents' request for review, and we reaffirm it now. The remaining 12 challenges are therefore not determinative , of the results of the election, but at best would reflect a union loss by a 13-14 vote. Thus, in view of the foregoing , we find that (1) throughout its duration , both before and after the April 24, 1969 , election , the Respondents ' picketing had as an object the organization of, or recognition for, certain of the Company 's employees within the meaning of Section 8(b)(7) of the Act,; and (2) the election held on April 24, 1969, was a valid election within the meaning of Section 9(c) of the Act . Consequently , we find that the Respondents ' picketing of the Blue Onion on and after July 4, 1969 , violated Section 8 (b)(7)(B) of the Act. , CONCLUSIONS OF LAW 1. Custom Catering, Inc., d/b/a Blue Onion is an employer 'engaged in commerce' within the meaning of Section 2(6) and (7) of the Act. ' 2. Local Joint Executive Board of Las Vegas, Nevad- a, namely Culinary Workers, Local 226, and Bartenders Union, Local 165, affiliated with Hotel, Restaurant & Bartenders International Union, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By picketing the Blue Onion on and after July 4, 1969, with an object of organizing, or gaining recogni- tion for, a unit of the Company's employees although a valid election under Section 9(c) of the Act, not won by the Respondents, had been conducted for such employees within the preceding 12 months, Respondents have 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 Sec- tion 2(6) and (7) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the Company's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes, burdening and obstructing com- merce and the free flow of commerce. THE REMEDY Having found that the Respondents have engaged in unfair labor practices in violation of Section 8(b)(7)(B) of the Act, we shall order that they cease and desist therefrom and that they take certain affirmative action which will effectuate the policies of the Act.10 ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board orders that the Respondents, Local Joint Execu- tive Board of Las -Vegas, Nevada, namely Culinary Workers, Local 226, and Bartenders Union, Local 165, affiliated with Hotel, Restaurant & Bartenders Interna- tional Union, AFL-CIO, their officers, agents, and repre- sentatives, shall: 1. Cease and desist from picketing or causing to be picketed Custom Catering Inc., d/b/a Blue Onion, with an object of either forcing or requiring the Company to sign a contract with them or in any other manner to recognize or bargain with them as the representative of the Company's employees, or forcing or requiring the employees to accept or select them as their collective- bargaining representative, where within the preceding 12 months a valid election under Section 9(c) of the Act has been conducted among the said employees and has not been won by the Respondents. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Post at their business offices and meeting halls copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondents' authorized representative, shall be posted by them immediately upon receipt thereof, and be main- tained by them for 60 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. (b) Sign and mail to the Regional Director for Region 31, sufficient copies of said notice, to be on forms provided by him, for posting by Custom Catering, Inc., d/b/a Blue Onion, if willing, at places where it customari- ly posts notices to its employees. (c) Notify the Regional Director for Region 31, in writing, within 10 days from the date this Order, what steps Respondents have taken to comply herewith. 10 Sec 8(b)(7)(B) of the Act proscribes picketing for a period of 12 months following a valid election However, in accord with our usual practice the 1-year ban against picketing here shall run from August 22, 1969, the date on which, according to the record, the unlawful picketing ceased Teamsters Local Union No 5 (Barber Broth- ers Contracting Co , Inc ), 171 NLRB No. 9; Retail Store Employees' Union, Local No 692 (Irvms, Inc ), 134 NLRB 686, 690-692 " In the event this Order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " LOCAL JOINT EXECUTIVE BOARD APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket or cause to be picketed Custom Catering, Inc , d /b/a Blue Onion , with an object of forcing or requiring the Company to sign a contract with us or in any other manner to recog- nize or bargain with us as your collective -bargaining representative where within the preceding 12 months a valid election under Section 9(c) of the Act has been conducted among you and we have not won that election i LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS, NEVADA (Labor Organization) Dated by (Representative) (Title) Dated by Dated by 253 CULINARY WORKERS, LOCAL 226 (Labor Organization) (Representative) (Title) BARTENDERS UNION, LOCAL 165 AFFILIATED WITH HOTEL, RESTAURANT & BARTENDERS INTERNATIONAL UNION, AFL-CIO (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 213-824-7351