Culinary Workers Local 62

CULINARY WORKERS LOCAL 62 419 Culinary Workers, Cooks, Bartenders and Hotel- Motel Service Employees, Local No. 62, Hotel & Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO and Tropics Enterprises, Inc., d/b/a Tropicana Lodge. Case 20-CP-253 June 26, 1968 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On January 9, 1968, Trial Examiner Louis S. Penfield issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending dismissal of the com- plaint, as set forth in the attached Trial Examiner's Decision . Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed an answer to the exceptions and supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision , the exceptions, the answer, the briefs, and the entire record in the case, and hereby adopts the findings , conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis S. PENFIELD, Trial Examiner: This proceeding was heard before me in Fresno, Califor- nia, on September 26 and 27, 1967, on a complaint of the General Counsel and answer of Culinary Workers, Cooks, Bartenders and Hotel-Motel Ser- vice Employees, Local No. 62, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, herein called Respondent.' The issue litigated was whether Respondent vio- lated Section 8(b)(7)(C) of the Act. Upon the entire record, including consideration of briefs filed by the parties, and upon my observa- tion of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Tropics Enterprises, Inc., d/b/a Tropicana Lodge, herein called Tropicana, is a California corporation with its principal place of business at Fresno, California, where it is engaged in operating a motel, restaurant, and bar. During the past calendar year, Tropicana received gross revenues in excess of $500,000 from the sale of food and beverages and from the rental of rooms. During the same period, Tropicana purchased and received foods and beverages valued in excess of $50,000 from enter- prises located in the State of California, which en- terprises have in turn received such products directly from points located outside the State of California. Upon the basis of the foregoing, I find that at all times material herein Tropicana has been engaged in a business affecting commerce within the meaning of the Act, and that the assertion of ju- risdiction is warranted. II. THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of Section 2 (5) of the Act. 111. THE UNFAIR LABOR PRACTICES The complaint alleges, in substance, that Respon- dent commencing on or about May 9, 1967, picketed the premises of Tropicana with an object of forcing or requiring Tropicana to recognize or bargain with it, although Respondent was not cur- rently certified as the statutory representative of the employees, and that such picketing continued thereafter "for more than a reasonable period of time not exceeding 30 days from the commence- ment of such picketing without a petition" having been filed with the Board. Respondent acknowledges that it engaged in a first round of picketing for a period of approximately 15 days in May, asserting that it ceased such picketing on May 23, that it later embarked on a second round of picketing commencing on June 7 which continued until June 30 when all picketing was abandoned. Respondent denies a recognitional or organiza- tional object for the first round, but admits it for the second round. Respondent asserts its conduct ' The complaint issued on July 3, 1967, and is based on a charge and amended charge filed with the National Labor Relations Board , herein called the Board, on June 7 and 30, 1967, respectively Copies of the com- plaint, the charge , and the amended charge have been duly served upon Respondent 172 NLRB No. 68 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be lawful, claiming that during the first round its picketing was lawful informational picketing within the meaning of the second proviso of Section 8(b)(7)(C). Respondent concedes that the second round of picketing did not fall within proviso limita- tions , but contends that such picketing was aban- doned in less than 30 days, and argues that the first round of lawful picketing cannot be considered in conjunction with the second round for the purpose of computing the statutory "reasonable period of time" required to establish a violation of Section 8(b)(7)(C). A. The Background and the Picketing Respondent is party to collective-bargaining agreements covering many motel and hotel em- ployees in the Fresno area. Tropicana has been operating a hotel and motel in the area for a number of years at its present location, and at no time have its employees been represented by Respondent. Immediately north of the Tropicana premises is another motel known as the Water Tree Inn. On its premises, and leased from Water Tree, is a restaurant known as Lyons Restaurant. As with Tropicana, Respondent did not represent em- ployees of either Water Tree or Lyons. Respondent had undertaken past unsuccessful efforts to or- ganize the Tropicana employees. In 1964 and again in 1965 Respondent had picketed the Tropicana premises presumably in pursuit of organizational and recognitional ends.' f By mid-1967 Respondent was scheduled to open negotiations for a new collective-bargaining con- tract with the organized employers in the area. Minutes of Respondent's membership meeting of February 14, 1967, establish that Respondent re- garded it as important to build strength for the forthcoming negotiations "and that very soon con- sideration should be given to placing pickets at Tropicana." Minutes of the March 14, 1967, meet- ing recite "that a picket line may be placed at Tropicana either the end of March or the first of April." Minutes of the April 11, 1967, meeting sig- nify there had been a discussion of the Tropicana situation with efforts to be "made to establish a legal picket line in the near future." At a later point in the minutes of the same meeting, it is set forth that "an investigation [is] being made as to the pos- sibility of establishing an informational picket line." [Emphasis supplied.] On May 1, 1967, Respondent addressed letters to the Fresno Central Labor Council, to the Building Service Employees Union, to Teamsters State Council, and to Teamsters Local 431 advising each that it was the intention of Respondent to place "an informational picket line at Tropicana Lodge, Water Tree Inn, and Lyons Restaurant commencing May 5, 1967." [Emphasis supplied. ] On May 9, 1967, Respondent commenced picketing the premises of Tropicana with picket signs bearing the following legend: Tropicana Lodge Nonunion Culinary, Cooks, Bartenders, Hotel-Motel Service Employees, Local 62 Picketing with such signs continued until May 23, 1967. On this date all picketing ceased not to be resumed until June 6, 1967, under circumstances to be described below.3 Prior to the commencement of picketing on May 9, Leo Vuchinich, Respondent's president and general organizer, accompanied by several other union representatives, visited Water Tree Inn and Lyons Restaurant. According to the testimony of management representatives, Vuchinich discussed the possibility with each of signing union contracts covering employees in their respective establish- ments. Vuchinich's memory as to what transpired at these meetings is somewhat vague. On the same day that Vuchinich and the other representatives visited Water Tree Inn and Lyons Restaurant, they also went to the coffeeshop at Tropicana where Vuchinich had a conversation with Edward Burge, president and general manager of Tropicana. According to Burge , Vuchinich specifically asked if Tropicana would sign a con- tract, indicating that if it did so he believed the neighboring employers would likewise sign. Burge said he explained to Vuchinich that he did not be- lieve a contract would benefit the Tropicana em- ployees and that he would not enter into one. Vuchinich acknowledges that he had a conversa- tion with Burge in the coffeeshop prior to the picketing, but places it at an earlier date than Burge, and claims that he and Burge only talked about general matters and that at no time did he request Burge to sign a union contract. None of the union representatives who accompanied Vuchinich at the time were called to testify. Vuchinich testified, without contradiction, that the initial picketing was meant to be informational in character. He defined informational picketing as designed to "inform the public that the place is nonunion" and asserted that when his Union un- dertook picketing of this nature no effort was made to stop deliveries or the performance of services. There is no evidence that between May 9 and 23 deliveries to Tropicana were stopped. On the con- trary, it is shown that when suppliers asked about the pickets, representatives of Respondent told ' The General Counsel has noted that unfair labor practice charges were filed in 1964 alleging that Respondent violated Section 8(b)(7)(C), and that such charges were adjusted by the execution of an informal settlement agreement . These circumstances are remote in time and no effort was made to connect them with the present controversy. They do not serve to establish either the object or the character of past picketing, and I attach no significance to them in evaluating the lawful or unlawful nature of Respondent 's conduct in the present situation. I On May 9 , Respondent also picketed Water Tree Inn and Lyons Restaurant using similar signs except as to the name of the employer. Respondent 's picketing of Lyons and Water Tree , however, was aban- doned after 2-1/2 days. CULINARY WORKERS LOCAL 62 421 them they were free to cross the line. While the General Counsel contends that this first round of picketing had a recognitional or organizational ob- ject, he makes no claim that the picket signs used, or any other act or omission of Respondent during this period, exceeded the express statutory limits set forth in the second proviso of Section 8(b)(7)(C). Following the cessation of picketing on May 23, Respondent reconsidered the situation at Trop- icana, and early in June its membership voted to reestablish a picket line expressly for an organiza- tional object. With regard to the new picketing, Respondent concluded that additional pressure should be brought against Tropicana, and, contrary to the approach it had used during the first round of picketing in May, it apprised other unions that it was now soliciting their support by having their members observe the picket line. On June 6, 1967, the second round of picketing actually commenced. Respondent used identical picket signs, but from the outset it undertook to, and successfully did, stop deliveries of all products used by Tropicana in the regular course of its business. This second round of picketing, for an admittedly organizational object, continued without interruption until June 30, 1967, at which time it was stopped without notice and has not since been resumed. When the picketing ceased on June 30, delivery of supplies and the performance of services which had stopped when it commenced on June 6 were resumed.' B. Discussion of the Issues and Conclusions The central issue involves the proper construc- tion of Section 8(b)(7)(C) as applied to a virtually undisputed set of facts. In pertinent part , this sec- tion in defining the character of the picketing it en- joins reads as follows: to picket . . . any employer where an object thereof is forcing or requiring an employer to recognize or bargain ... or forcing or requiring the employees ... to accept or select such labor organization as their ... representative, unless such labor organization is currently cer- tified.,.. (C) where such picketing has been con- ducted without a petition ... being filed within a reasonable period of time not to exceed thir- ty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith .. . direct an election ...: Provided further, That nothing in this subparagraph (C) shall be con- strued to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an em- ployer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any in- dividual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to per- form any services. Admittedly Respondent is not currently certified, and no petition was filed with the Board during either round of picketing. The General Counsel, although not asserting the first round of picketing to have been unlawful had it stood alone, is con- tending that Respondent here has picketed for more than a "reasonable period" within the mean- ing of the statute, computing the statutory "reasonable period" as commencing with the start of the first round of picketing on May 9, and ending 30 days later on June 7 the day after Respondent had started its second round of picketing.' Respon- dent claims that the first round of lawful informa- tional picketing cannot be used to compute the "reasonable period," and that the second round of extra proviso picketing was abandoned in less than 30 days. The only factual issue which the record presents is whether or not Vuchinich, as Burge asserts, at a meeting held prior to the first round of picketing requested that Burge sign a contract covering the employees of Tropicana. Respondent did not call other union witnesses who were present at this meeting to corroborate Vuchinich in his denial that he made such a request. While this, among other reasons, might be grounds for crediting the version advanced by Burge, I deem it unnecessary to make a definitive resolution of this conflict, inasmuch as I am satisfied that other uncontroverted evidence clearly establishes that Respondent had a recogni- tional or organizational object when it embarked on the first round of picketing. Minutes of Respon- dent's meetings prior to its picketing indicate that Respondent was concerned that Tropicana still remained as one of the unorganized employers in the area, and believed that this fact would have an adverse effect upon area negotiations which were to take place with the organized employers later in the year. Respondent then considered steps that might result in Tropicana's according it recogni- tion. At some point it decided to undertake, and on May 9 did embark upon, a program of picketing. The minutes and the letters to other unions described this program to be informational in a The record establishes that Respondent made gross purchases amount- ing to approximately $12,000 per week of items needed to carry on its busi- ness With the commencement of picketing on June 6, it became necessary for Respondent to rent a truck and hire employees to pick up the purchases from the premises of its suppliers, inasmuch as employees of the suppliers would not deliver them across the picket line A musical quartet, which had been engaged to perform at Tropicana, also refused to perform any ser- vices behind the picket line ' The General Counsel's complaint, although charging Respondent with having picketed "for more than a reasonable period exceeding 30 days," dates the commencement of such picketing as May 9, 1967 No different contention was advanced during the course of the hearing, and in his brief the General Counsel makes no claim that the second round of extra proviso picketing commencing on June 6, 1967, and continuing until June 30, 1967, is, standing alone, unlawful picketing for more than the statutory "reasonable period - 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD character, but it is a fair inference that under the circumstances in which the decision to proceed came about the picketing had a basic goal of bring- ing about the organization of Tropicana's em- ployees and recognition of Respondent as their representative, and I so find. The picket sign itself describes Tropicana as nonunion. This is of course a true statement which during the first round of picketing appears to have been directed solely at advising the public of such fact. Nothing in the sign, however, negates the presence of an organizational or recognitional object. On the contrary, as the Board has said in a leading case, use of such a term as "does not employ members of" clearly imports a present object of organization, and use of such a term as "does not have a contract with" just as clearly implies a recognition and bargaining object.6 The term "nonunion" has a comparable connota- tion, and reasonably imports an object of bringing the nonunion condition to an end by the organiza- tion of the employees and the recognition of the union as their representative. Accordingly, I find that Respondent when embarking upon the May picketing had an organizational or recognitional ob- ject within the meaning of Section 8(b)(7) of the Act. It does not follow, however, nor do I understand the General Counsel to assert, that a recognitional or organizational object alone sufficies to render the first round of picketing unlawful. The Board in its second decision in Crown Cafeteria, supra, held that a union can lawfully picket for a recognitional and organizational object for more than the statuto- ry "reasonable period" provided it stays within the requirements of the second proviso of Section 8(b)(7)(C) and truthfully advises the public as to the nature of the dispute and does not bring about an interruption of deliveries. Picketing of this na- ture is viewed as informational in character, and the presence of the proscribed recognitional or or- ganizational object alone is not sufficient to render it unlawful. As noted above, it is not claimed, nor does the record show, that Respondent in the in- stant case during this first round of picketing in any manner exceeded the limitations of the second proviso. The picketing truthfully advised the public that Tropicana was nonunion, and no deliveries whatsoever were stopped. Thus the first round of picketing must be regarded as lawful informational picketing even though undertaken with a recogni- tional or organizational object. If such conditions had remained unchanged, I would construe Crown Cafeteria to mean that Respondent might have con- tinued its picketing lawfully not only for a period of more than 30 days from May 9, but indefinitely. As we have seen, however, after a hiatus of nearly 2 weeks, Respondent commenced picketing again using the identical signs but now stopping all deliveries. Although there is conflicting testimony in the record as to whether or not either im- mediately before or during the course of this second round of picketing, Vuchinich requested that Tropicana sign a union contract, no purpose will be served in resolving this conflict inasmuch as Respondent concedes that it had an organizational purpose within the meaning of Section 8(b)(7) at all times during the second round. Thus the second round of picketing was conducted with not only a proscribed object but also outside the limits of the second proviso, and had it been carried on for "more than a reasonable period of time not to ex- ceed 30 days" without a petition having been filed, it would have been violative of Section 8(b)(7)(C). Respondent, however, discontinued second round picketing after conducting it for only 25 days. The General Counsel's expressed theory rests upon our computing the statutory "reasonable period" of 30 days by having the picketing commence on May 9, by including 15 days of originally lawful informa- tional second proviso picketing, by including the 2- week hiatus period when no picketing at all took place, and by including 2 days during the second round of picketing during which Respondent's con- duct exceeded the limits of the second proviso. The General Counsel's theory can only be sup- ported by saying that given a continuing proscribed object, an initial period of lawful informational proviso picketing becomes tainted in retrospect when subsequently the character of the picketing changes and observance of proviso limitations is abandoned. The General Counsel cites no case directly sup- porting his theory, but relies in some measure upon a decision of the Board in Butchers' Union, Local No. 120 Meat Cutters (Moniz Portuguese Sausage Factory), 160 NLRB 1465. In Moniz the Union picketed sporadically for an organizational or recognitional object, commencing on or about Oc- tober 1, picketing on various dates in October and November, and ending all picketing on December 15. From the date of its commencement actual picketing was not conducted for more than a total of 14 days. The Board, noting that no petition had been filed within 30 days from the commencement of the picketing, held that the Union had violated Section 8(b)(7)(C). The Board in Moniz, however, expressly noted that "the language of the picket sign does not fall within the second proviso of Sec- tion 8(b)(7)(C)." The same picket sign appears to have been used at all times. Thus it is not shown that at any time the Union was engaging in lawful informational picketing within proviso limitations. Under the circumstances the Board's holding goes no further than to recite that the "reasonable period" requirement does not demand that picket- ing be conducted on a specified number of con- secutive days. It suffices if picketing for a proscribed object be conducted outside the limits ' Local Joint E.tecut,ve Board of Hotel and Restaurant Employees, et a! (Crown Cafeteria), 135 NLRB 1183 CULINARY WORKERS LOCAL 62 423 of the second proviso and continues for a period of more than 30 days from its commencement re- gardless of its sporadic character within that time period . The Board, however, was not confronted in Moniz with the propriety of using a period of lawful informational picketing to compute the statutory "reasonable period ." No picketing of this nature had taken place in Moniz, and while I do not question the case as authority for the proposition that breaks in the picketing will not toll the running of the "reasonable period," I do not see it as upholding the General Counsel 's basic theory as ap- plied to the instant case. While I view the Board 's decision in Moniz as in- apposite for reasons set forth above , I have noted no case in which the Board has been squarely faced with resolving the precise issue which confronts us here. Respondent cites Hotel, Motel & Club Em- ployees' Union, Local 568, AFL-CIO ( Restaurant Management, Inc.), 147 NLRB 1060, to support a position contrary to that taken by the General Counsel . The Trial Examiner in Restaurant Management, Inc., who was upheld without com- ment by the Board , found that the union had picketed for a period of more than 3 weeks on a sporadic basis carrying signs lawful within the second proviso , and without bringing about a stop- page of deliveries. At the end of this 3 -week period, however, and with no hiatus whatsoever , the union had changed the legend on its picket signs and had commenced to stop deliveries . Contrary to the con- tention of the General Counsel , the Trial Examiner found the first round of picketing to have been law- ful despite a recognitional and organizational ob- ject since the picketing met the requirements of the second proviso . As to the second round, however, he found the picketing with changed signs and in- terrupted deliveries continuing , as it had, for more than 30 days without a petition having been filed, to be unlawful . Thus the Trial Examiner rejected a contention presumably similar in theory to that ad- vanced here by the General Counsel, and he ap- pears to have been upheld by the Board without any discussion on its part . In Restaurant Manage- ment, Inc., however, the issue was relatively unim- portant since the second round of picketing had been conducted in an extra proviso manner and had continued for more than 30 days . Further picketing thus could be enjoined regardless of the lawful character of the first round . The decision then may be regarded as less than definitive when applied to a situation such as ours where it is not established that the second round of picketing is unlawful . The decision would indicate, however, that it would not be appropriate to link the two rounds of picketing for the purpose of computing a "reasonable period ," and I regard this as embody- ing sound principle . Three elements must be established before picketing is violative of Section 8(b)(7)(C). It must be found that it was conducted by a noncertified union for a proscribed object, that it continued for more than a reasonable period without a petition being filed , and that it was car- ried on in a manner which falls outside the limits of the second proviso . In the initial 2-week period of picketing at Tropicana Respondent had the proscribed object, but its picketing was within the limits of the second proviso . Such lawful picketing could have been continued indefinitely . I find it dif- ficult, however, to support a theory whereby a union may be penalized for past lawful picketing merely because it changed its method as to the manner in which it carried on continued picketing. As soon as Respondent stopped deliveries at the opening of the second round of picketing it ran the risk that such conduct might be found unlawful if conducted for more than the statutory "reasonable period." I see no basis, however, for saying that such a switch to extra-proviso picketing can result in attributing to earlier, otherwise lawful, picketing such a change in character that it then may be used to compute the statutory "reasonable period." Ac- cordingly I find that inasmuch as the first round of picketing was wholly lawful within the meaning of the statute, the "reasonable period" did not com- mence to run at its outset, and thus the 30-day statutory period had not run , as the General Coun- sel contends, shortly after the commencement of the second round of extra-proviso picketing. Since I have concluded that the statutory "reasonable period" cannot be computed by relat- ing back to a May 9 commencement , or indeed to any time prior to the start of the second round of picketing, there remains the question of whether or not there is any other basis in the record to support a finding that Respondent has unlawfully picketed within the meaning of the statute. As noted above Respondent picketed for 25 days com- mencing on June 6 , picketing at all times during this second round for an organizational object, and stopping all deliveries to Tropicana . The statute is phrased in terms of "a reasonable period ... not to exceed 30 days," which makes the 30 days an out- side limitation , and leaves discretion in the Board to define the meaning of a "reasonable period" in any given case. Although the limits of the Board's authority have not as yet been fully defined, it has so far seen fit to shorten the period only in an unusual situation such as a showing that a union coupled its unlawful object with picket line miscon- duct which included violence , threats of violence, and other acts of coercion and intimidation.7 In the 7 District 65, Retail, Wholesale and Department Store Union, AFL- CIO (Eastern Camera & Photo Corp.), 141 NLRB 991. In that case the union had picketed for an unlawful object for 26 days without a petition having been filed. The Board found its picketing to have been conducted with the use of "threats of physical violence , use of coercive and abu- sive language , blocking ingress and egress to and from such premises." Under the circumstances the Board held that picketing conducted in such an unlawfully aggressive manner and with a coercive effect upon the employees justified shortening the period that a union ordinarily would be allowed without filing a petition. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instant case the General Counsel did not specify in his pleadings, nor does he argue in his brief, that the 25 days of second round of picketing in and of itself constituted a "reasonable period ." I note no unusual circumstance in the manner in which picketing was conducted which would warrant a de- parture from the usual 30-day limitation.' Ac- cordingly, I find that Respondent by engaging in recognitional picketing commencing on June 6 and continuing until June 30 without filing a petition did not exceed the " reasonable period " set forth in the statute and that regardless of the object and the effect of this picketing it does not constitute a violation of Section 8(b)(7)(C). For reasons set forth above I find that Respon- dent has not engaged in conduct violative of Sec- tion 8(b)(7)(C) by either its first or second round of picketing considered separately, or in conjunc- tion with one another . Accordingly, I shall recom- mend that the complaint be dismissed in its en- tirety. Upon the basis of the foregoing findings of fact " Were Ito come to a contrary conclusion on this issue I would deem it inappropriate to find a violation without according Respondent a further and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Tropics Enterprises, Inc., d/b/a Tropicana Lodge, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Culinary Workers, Cooks, Bartenders and Hotel-Motel Service Employees, Local No. 62, Hotel & Restaurant Employees and Bartenders In- ternational Union, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices as alleged in the Complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case , it is hereby recommended that the complaint be dismissed in its entirety. opportunity to be heard, inasmuch as the issue was not specifically raised by the pleadings or in the course of the hearing