San Francisco Local Executive Board

SAN FRANCISCO LOCAL EXECUTIVE BOARD 199 San Francisco Local Joint Executive Board of Culinary Workers, Bartenders, Hotel, Motel and Club Service Worker, AFL-CIO (APB Enterprises, Inc., d/b/a Perry's) and Robert Cassel. Case 20-CP-472 November 12, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On July 13, 1973, Administrative Law Judge Richard D. Taplitz issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act,, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light _ of the exceptions and briefs and has decided to affirm the, rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent , San Francisco Local Joint Executive Board of Culinary Workers, Bartenders, Hotel,, Motel and Club Service Workers, AFL-CIO, San Francisco, California, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. 23, 1973. The complaint, based on a charge filed on April 12, 1973, by Robert M. Cassel, issued on April 24, 1973, and as amended at the hearing, alleges that San Francisco Local Joint Executive Board of Culinary Workers, Bartend- ers, Hotel, Motel and Club Service Workers, AFL-CIO, herein called the Union, violated Section 8(b)(7)(B) of the National Labor Relations Act, as amended. Issue The primary issue is whether the Union violated Section 8(b)(7)(B) of the Act by engaging in organizational or recognitional picketing of APB Enterprises, Inc., d/b/a Perry's, herein called Perry's, within 12 months of the date on which the Union lost a valid election held under the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Union. Upon the entire record 1 of the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT L THE BUSINESS OF THE COMPANY Perry's is a California corporation engaged in the operation of a, restaurant on Union Street, San Francisco, California. During the year immediately preceding is- suance of complaint, Perry's received gross revenues in excess of $500,000, and purchased and received goods valued in excess of $10,000 which were produced or manufactured outside of California. The complaint alleges, Respondent's amended answer admits, and I find that Perry's is an employer engaged in commerce within the meaning of Section'2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge: This case was tried at San Francisco, California, on May 22 and III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting From March 6 through April 24, 1973, the Union picketed Perry's with signs reading: i The transcript is hereby corrected. 207 NLRB No. 38 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD San Francisco Joint Executive Board of Culinary Workers Bartenders, Hotel, Motel and Club Service Workers PROTEST PERRY'S Failure To Meet the Prevailing Area Standards As To Wages and Other Labor Costs PLEASE DO NOT PATRONIZE PERRY'S On March 7, 1973, which was the day after the picketing began, Perry's, through its attorneys, filed a charge in Case 20-CP-470, alleging that the Union was picketing in violation of Section 8(b)(7)(C) of the Act, and a petition in Case 20-RM-1595 seeking an election. By letter dated March 19, 1913, the Regional Director for Region 20 of the National Labor Relations Board notified all parties that a determination had been made that an expedited election should be conducted upon the petition in accordance with Sections 8(b)(7)(C) and 9(c) of the Act. The letter also notified the parties that the Regional Director would not issue a complaint in Case 20-CP-470. By letter dated March 20, 1973, the Regional Director served a notice of election providing for an election in a unit consisting of "All cooks, waiters, waitresses, bartenders, barboys, cash- iers, busboys, hosts and dishwashers of the Employer at its San Francisco, California location; excluding office clerical employees, guards and supervisors as defined in the Act." Except for the exclusions set forth in the unit description, all of Perry's employees are encompassed in that unit. On March 21, 1973, the Union, through its attorneys, wrote to the Regional Director disclaiming any interest in representing or organizing the employees of Perry's. The letter stated that there was no question concerning representation, nor was there organizational or recogni- tional picketing and that if there was any doubt as to the facts, the Region should schedule a hearing. The letter concluded by stating that the Union would not participate in the illegally scheduled election. The election was conducted on March 27, 1973. The tally of ballots shows that of approximately 34 eligible voters, 30 voted against the Union, none voted for the Union, and there were no challenges. The Union filed objections to the election dated April 2, 1973. The Regional Director overruled the objections in a 2 The Union admits in its answer, and I find, that Belardi is an agent of the Union within the meaning of Section 2(13) of the Act. Supplemental Decision dated April 11, 1973. That Supple- mental Decision also contained a certification of results of election in which the Regional Director certified that a majority of the valid votes had not been cast for the Union and that the Union was not the exclusive representative of all the employees in the unit mentioned above. By telegram dated April 17, 1973, the Union filed a request for special permission to appeal from the Regional Director's Supplemental Decision. The Board denied the Union's request by a teletype dated April 20, 1973. The Union filed a more detailed "Request to Specially Appeal" dated April 20 which was denied by the Board in a teletype dated May 2, 1973. The complaint alleges that the Union's picketing between April 1 i (the date of the certification of results of election) and April 24, 1973, (the date on which the picketing ceased) had an organizational or recognitional objective and therefore was in violation of Section 8(b)(7)(B) of the Act. The Union contends that its picketing between March 6 and April 24, 1973, did not have such an object and was solely to secure area standards. If the Union's contention is correct, then a valid election could not have been held under the provisions of Section 8(b)(7)(C) and 9(c) of the Act and a hearing on the representation petition (which was not held in the instant case) would have been required. Moreover, even if the election had been valid, no finding of violation under Section 8(b)(7) of the Act can be made unless an object of the picketing was recognitional or organizational. B. The Contacts Between the Union and Perry's 1. The initial contacts Perry's opened for business on August 20, 1969. While the restaurant was still being built, the Union sought to begin negotiations for a contract with Perry's. By letter dated March 25, 1969, Joseph Belardi, the Union's executive secretary,2 requested Perry's to meet with union representatives for the purpose of discussing an agreement fixing hours, wages, and working conditions. The letter went on to state that a meeting had been arranged for Tuesday, April 1, 1969, at which Perry's was requested to be present so that an amicable agreement could be reached. The letter ended by stating "If you do not attend this meeting, the Unions will be compelled to take whatever action is necessary to secure such an agreement." On April 1, 1969, Belardi sent another letter to Perry's with the same language except that it was marked "second request" and it stated that the meeting had been arranged for Tuesday, April 8, 1969. Subsequently, two more letters with the same language, except for the meeting dates, were sent to Perry's by Belardi. One was dated July 15 and the other July 22, 1969. Also in July 1969, Charles Escoffon, a representative of one of the unions that made up the Joint Board, spoke to Aldis P. Butler, Jr., the owner of Perry's, at the location where the restaurant was being built. Escoffon identified himself as a business agent for the Union3 and asked Butler when he would be prepared to sign a contract. 3 Escoffon; was also present as a representative of the Union at subsequent meetings together with Belardi SAN FRANCISCO LOCAL EXECUTIVE BOARD 201 Butler replied that the restaurant had not even opened. On a number of occasions thereafter, Escoffon came to the restaurant and asked Butler if he was going to sign a contract. Escoffon told Butler that a lot of pressure was being put on- him to get Union Street organized and they had to have a contract soon. Butler's answer was that they were just getting on their feet and he wasn't able to consider signing a contract at that time. Sometime in July or August 1970, Belardi came into the restaurant and asked Butler to have a meeting to discuss signing a contract. Butler agreed and a meeting was arranged for some time thereafter.4 At the meeting, Belardi asked Butler why he was reluctant to sign a contract and Butler replied that he did not feel he could commit his employees to union representation and that they would have to make that decision for themselves. Butler also said that Belardi would be welcome to talk to the employees himself. Belardi replied that if the situation was not worked out soon there would be picketing. After the meeting, Butler retained Attorney Robert M. Cassel to ' represent him. By letter dated August 27, 1970, Cassel notified Belardi that he had been retained by Perry's and that he was prepared to arrange to meet with Belardi to discuss the Union's request for recognition. A meeting was arranged in Belardi's office for September 21, 1970. The meeting was attended by Belardi, Escoffon, and a number of other representatives for the Union. Cassel, together ` with Perry's manager, Tobin, were present for Perry's. Belardi stated that the purpose of the meeting was to find out why Perry's did not have a contract. He went on to say that the Union had made a mistake by not picketing the previous year because they would have had more leverage then when the building trades were working on the building. He added that Perry's had doublecrossed the Union by- refusing to sign a contract. Cassel stated that Perry's would insist on a Board election. Belardi replied that they had waited too long and would have to start picketing. Belardi also asked whether Perry's would agree to a card check and once again Cassel said that they wanted a secret election. There was some discussion about the amount of business done by Perry's. Belardi asked what the wage rates were and Tobin replied that he didn't know whether he could get authority to give that information to the Union, but that he had checked recently and Perry's was paying union scale with some employees receiving a little more and some a little less. Tobin added that on average they were above the cost for labor paid by the local restaurant association. Cassel said that this information could be obtained by the Union through speaking to the people and offered to have a union representative talk to the employees in the restaurant. There was a discussion about the union meeting' with the employees elsewhere. The restaurant across the street from Perry's was mentioned. Belardi said that they probably should have a meeting with the employees and that they would be in touch. On October 8, 1970, Belardi called Cassel and told him 4 Butler could not specify the date of the meeting, but credibly averred that it was in July or August 1970. 5 These findings are based on the credited testimony of Cassel. Cassel and Mayer were the only witnesses testifying to the August 8 meeting. that the Union had met with seven or eight of the employees. He told Cassel that the Union would not agree to an election unless they thought they would win it. On December 16, 1970, Belardi once again called Cassel and told him that they were not going to have an election because they knew they couldn't win and that they were going to picket shortly. 2. The 1972 - incidents The record does not disclose that anything happened or that there was any contact between the Union and Perry's between December 16, 1970, when Belardi called Cassel, and July 13, 1972, when union representatives Richard Mayer and Beverly Shawn came into the restaurant and spoke to Tobin about arranging a meeting. At that time Richard Mayer was picket coordinator for the Union. Near the end of July, Mayer called Cassel and asked for a meeting. The meeting was arranged for Belardi's office for August 8, 1972. Belardi, Mayer, and Shawn were present for the Union at the August 8, 1972, meeting. Cassel was there for Perry's. Belardi said that something had to be done about Perry's continuing refusal to sign a contract. He introduced Mayer and Shawn and said that they were the new organizers for Union Street. He also said that Mayer and Shawn were going to organize the people on Union Street and that they would be contacting all the restaurant owners in the near future. Belardi explained that the problem was becoming acute because there were negotia- tions with the downtown restaurant group, that Perry's was receiving publicity and that they simply had to have a contract. Mayer mentioned allegations by other restaurant owners that Union Street competition was unfair. Cassel said that he was aware of such rumors but that their labor costs were not lower. Cassel maintained his position that Perry's insisted on a Board election. There was discussion about violence on Union Street and Belardi denied any connection with that violence. Belardi said, however, that if Perry's didn't sign a contract and there was picketing, he would not be responsible for what would happen. When Cassel asked if that was a threat, Belardi replied that it was not but that the situation had angered the labor communi- ty so that he would not be surprised if some of the other trades came down to Union Street and took matters into their own hands. He stated that it could be the natural chain of events from the picketing. Mayer said that the continuing refusal to sign a contract was having the effect of tearing down working conditions in the industry that had been built up over 30 years. Cassel replied that Perry's labor costs were equal to or above costs under the contract and again offered to have the employees meet with the Union. Mayer asked if there was any chance that Perry's would give the Union actual wage data and,Cassel replied that he did not think so, but that the Union should meet with Butler. Belardi said that it probably would be, good idea to have the meeting at Perry's.5 Another meeting took place on August 30, 1972. Cassel, According to Mayer: Belardi said that the Union was under pressure to put a picket line on Union Street and asked Cassel what could be done to avoid it; there was discussion of the past contacts the Union had with Perry's; Mayer raised the issue of area standards and said that other employers were (Continued) 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tobin (Perry's manager), and Butler' met at the restaurant with Mayer and Shawn. Belardi was not present. Mayer said that Perry's was evading its community responsibilities by refusing to sign a contract and that Belardi was serious when he said it was possible that there could be unpleasantness if there was picketing. Cassel reiterated Perry's position that there would be no contract without an election. There was a discussion about tearing down labor standards and Butler stated that Perry's labor costs were equal to or above those in the contract. Mayer then said that Belardi was sincere about the fact that there was pressure on him to do something about Perry's getting a contract because the Golden Gate Restaurant Association group was focusing on Perry's and stating that the Union Street competition was unfair. Cassel said that Perry's labor costs were not lower than those under the contract. Shawn asked whether Perry's had a health plan and Butler replied that they had a good one. Shawn then asked about the employees' protection against discharge and Butler replied that there weren't many firings. Shawn spoke about an incident in which the Union helped her get her job back after she was fired by the Mark Hopkins' Hotel. Mayer or Shawn asked about specific rates paid to the employees and Butler said that he would not give that information but that the Union could talk to the people and the company would cooperate in setting up a meeting. A union representative asked for the names, addresses, and phone numbers of the employees. Tobin replied that some'of the employees had received calls late at night and it was against company policy to give out addresses and phone numbers.6 3. The 1973 letters The Union did not meet with the employees and there were no further meetings with representatives of Perry's. The record does not disclose any further activity until January 24, 1973, when Belardi wrote to Perry's stating that area standards had been established through collective bargaining with the majority of the restaurants and taverns in the San Francisco area; that the Union understood that Perry's was one of the few employers who was undermin- ing those standards; that if Perry's contended that it did meet those standards it should send a copy of its wage and benefit scale showing all labor costs; and that Perry's failure to meet area standards gave it an unfair competitive advantage over other employers in the area. The letter went on to demand that Perry's meet the area standards in terms of total labor costs and for that purpose enclosed a copy of the standard collective-bargaining agreement with other employers. The letter stated: ... while we f expect you to meet the total labor costs, we do not expect or seek any collective bargaining relationship with your firm. All portions of the contract which do not involve labor costs (e.g., union security clause, grievance procedure, etc.) should be ignored. Any prior statements, picketing or other indications which are inconsistent with the sole present purpose of requiring your observance of prevailing standards in terms of total labor costs are, therefore, withdrawn and repudiated. We are not insisting that each item of your labor costs be identical with the standard union contract; we are only insisting that your total labor costs equal or exceed the total labor costs of the standard union contract. The letter concluded by stating that unless satisfactory evidence was furnished,by Perry's that it was meeting such area standards, the Union would take appropriate action that might consist in part of picketing Perry's to advise the public and members of organized labor having, business with Perry's that Perry's did not observe prevailing standards in the area. Cassel answered by letter dated January 30, 1973, stating in substance that Perry's had reason to believe that the remuneration received by its employees equalled and in many cases exceeded that received by employees from comparable employers in the area. The letter stated that the Union's request for evidence was vague and could not be acted upon. By letter dated, February 23, 1973, the Union's attorney, Philip Paul Bowe, wrote to Perry's attorney, Cassel, stating that unless Perry's submitted evidence within 5 days that it met the San Francisco area standards as reflected by total labor costs, area standard picketing would commence without further notice. The letter once again stated that the Union did not seek a collective-bargaining relationship and that all portions of the contract not involving labor costs should be ignored. It concluded by stating that all that was required was proof that Perry's was meeting area stand- ards. claiming that Perry's was undermining labor standards in the city; Mayer asked Cassel if Perry's would produce evidence, of the fact that it was conforming to area standards and stated that if Perry's was, the Union has no argument with ' it. Cassel said that he was not under an obligation to present those records to the Union ; and there was a discussion of the possibility of a meeting with Perry's employees. Mayer also testified that he recalled no comment having to do with a contract, denied that it was said that he and Shawn were organizers and were going to organize on Union Street; and denied that there was reference to any union being responsible for violence. I credit Cassel's version of the meeting over Mayers. Mayer's insistence that nothing was said about a contract or organizing the employees is difficult to believe . He acknowledged that at a subsequent meeting on August 30, Shawn told Cassel and Butler about the advantages of union representation in terms of job protection and illustrated it with an example of how the Union helped her get her job back with another employer. Those remarks indicated that the Union was still concerned with recognition and a contract. Mayer also acknowledged that Belarch had given responsibility to Shawn and himself because they were about the same age as many of the Union Street employees, had similar backgrounds and might have a rapport with some of their problems. That gives some support to Cassel's assertion that Mayer and Shawn were introduced as organizers by Belardi at the August 8 meeting. 6 These findings are based on the credited testimony of Cassel. Butler corroborated that testimony in significant part. Though Butler did not specifically testify that union representatives asked for a contract at that meeting. He did aver that one of the union representatives suggested that the employees would make more money if they were unionized. Mayer testified that one of Perry's representatives said that the employees should decide whether there should be a union and that he (Mayer) responded that that would not necessarily solve the problem because the pressure came from the understanding that Perry's, was undermining area standards. According to Mayer, he told Perry's representatives that if they were paying the same as union scale or better, there was no argument between the Union and Perry's and that if Perry's could demonstrate that it was conforming to area standards there would be no reason to put up a picket line. Mayer specifically denied that he mentioned Perry's refusal to sign a contract and also denied that he spoke of unpleasantness associated with picketing . I credit Cassel's version of the conversation over Mayers. SAN FRANCISCO LOCAL EXECUTIVE BOARD 203 The picketing commenced on March 6, 1973. By letter dated March 14, Cassel wrote to Bowe stating that the Union's claim, that Perry's wage benefits were substand- ard, was false. The letter suggested that the Union could have obtained the information: it required-through meeting with Perry's employees. Though the letter said that Perry's did not believe there was an obligation to provide labor cost data, it went on to state: Perry's currently employs 34 employees who would be within the bargaining unit covered by the contract that you forwarded. Perry's total weekly labor costs for wages and non-statutory fringe benefits for such 34 employees is $4,168.34. The total labor cost of wages and fringe benefits for such employees if paid pursuant to the agreement that you submitted would be $4,036.62: - Therefore, if Perry's employees were compensated at the rates set forth in the agreement that you claim represents the area standard, they would collectively receive, less than the compensation which they current- ly receive in the absence of such an agreement. An itemization of the above weekly totals has been provided to Field Examiner John Wade of the NLRB. Mr. Wade does not have Perry's permission to provide such detailed information to your clients since only the total labor costs stated above are relevant to your inquiry. However, should your client require further evidence of the above figures, be advised that Mr. Wade or any other authorized agent of the NLRB will be provided with full access to Perry's business records and financial statements in, order that Mr. Wade, or such other individual, may independently certify to you the accuracy of the respective total labor costs set forth above. - We trust that the-above information will result in the immediate cessation of-picketing by your client since it puts to rest the stated concerns of your client with regard to comparative total labor costs. Bowe replied to Cassel by letter dated March 15, 1973, rejecting Cassel's offer. The letter stated that it seemed childish for the Company to continue to refuse to furnish intelligible information; that total employee figures with- out a further breakdown of hours and shifts did not permit the Union to compute costs; and that Perry's continued refusal reflected an attempt to hide the true facts. The letter concluded by stating: The Union does not desire to play games with your client. If you meet the San Francisco area standards, demonstrate it. Otherwise, the Union will continue to assume that your client does not meet the San Francisco area standards. C. The Controlling Legal Principles Section 8(b)(7)(B) proscribes recognitional or organiza- tional picketing by an uncertified union within 12 months of a valid' election.? The decisive date for determining when the valid election has been conducted is the one on which the Certification of Results of Election issues. Retail Score Employees' Union, Local No. 692 (Irvin, Inc.), 134 NLRB 686. In the instant case that date was April 11, 1973. Though the picketing began on March 6, the alleged violation of Section 8(b)(7)(B) was keyed to that picketing which occurred from April 11 through 24, 1973, when the picketing ceased. A violation of 8(b)(7)(B) can be found only where a valid election has been conducted. The Union maintains that a valid election has not been conducted because it was not granted either a preelection hearing under the expedited election procedure or a postelection hearing on objections. However, at the trial of the instant case the Union was permitted to introduce evidence relating to the validity of the election. Cf. Retail Clerks International Association, Local 57, AFL-CIO (Rested Stores Company), 138 NLRB 498; ' San Francisco Local Joint Executive Board of Culinary Workers, Bartenders, Hotel, Motel and Club Service Work- ers, AFL-CIO, (Associated Union Street Restaurants), , 201 NLRB 36. ' The Union did introduce substantial evidence concerning the object of its picketing on the theory that an expedited election without a hearing could not be lawfully held in the absence of a recognitional or organizational object. That key question of object is central to both the validity of the election and the applicability- of Section 8(b)(7). It is considered in full below. In determining the object of, picketing, Respondent's overall conduct must be examined. Past relations between the parties must be considered as well as the context in which the picketing occurred. International Brotherhood of Electrical Workers, Local 953, AFL-CIO (Erickson Electric Company), 154 NLRB -1301. In order to put current picketing in perspective, it is proper to examine the relations between the parties even 'prior to the 6-month limitation set forth in Section 10(b) of the Act 8 In the Erickson Electric Company case, supra, the Board gave consideration to union demands for a contract made 2 years before the violation of the Act. This is not the type of situation dealt with by the United States Supreme Court in Local Lodge 1424 LAM (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411 (1960), in which a violation could not be found where: conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice." The Supreme Court distinguished the fact pattern in the Bryan case from one "where evidence as to events during the barred period (are) used to illuminate current conduct claimed in itself to be an unfair labor practice." " In the instant case the 4 That section reads. "8(b) It shall be an unfair labor practice for a labor organization or its agents-" # i # i # (7) to picket or to cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to acceptor select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees: (B) where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted, .. . Section 10(b) reads: "... no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge ... . 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence of conduct preceding the 6-month limitation was used solely for explaining and throwing light on the alleged illegal conduct which occurred "within 6 months of the filing of the charge . United Brotherhood of Carpenters and Joiners of America, Local 745, AFL-CIO (James W Glover, Lid), 178 NLRB 684, enfd. 450 F.2d 1255 (CA. 9, 1971). However, even if the evidence of prior contact between Respondent and Perry's establishes that there once was a recognitional or organizational object, the Board has rejected ". . . the application of a presumption of the continuity of a state of affairs in construing the legality of picketing where there is no substantial independent evidence to support such a presumption ." Local 344, Retail Clerks International Association, AFL-CIO (Alton Myers Brothers, Inc.), 136 NLRB 1270. As the Board said in Local Union No. 741, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Keith Riggs Plumb- ing and Heating Contractor), 137 NLRB 1125: "The question of objectives in every case is one of fact and not of assumptions or presumptions." A recognitional or organizational object is an essential element in any 8(b)(7) violation. Where a union pickets solely to secure area standards, it is engaging in neither recognitional nor organizational picketing . In Houston Building and Construction Trades Council (Claude Everett Construction Company), 136 NLRB 321, the Board extend- ed the area standards concept that it has formulated in the Calumet Contractors case, 133 NLRB 512 (which involved an alleged violation of Section 8(b)(4)(C)), to situations arising under Section 8(b)(7). The Board repeated the language of the Calumet case as follows: ... Respondent's admitted objective to require the Association ... to conform standards of employment to those prevailing in the area, is not tantamount to, nor does it have an objective of, recognition or bargaining. The Union may legitimately be concerned that a particular employer is undermining area stand- ards of employment by maintaining lower standards. It may be willing to forego recognition and bargaining provided subnormal working conditions are eliminated from area considerations. Where a past recognitional or organizational object has been shown and a union thereafter had disclaimed such objects and claims that its picketing is solely to secure area standards, the Union's entire course of conduct must be examined to determine whether the area standards object is genuine or is merely a pretext to disguise a continued recognitional or organizational object . The Board will not allow an area standards contention to conceal a proscribed object. Sheet Metal Workers Union Local 283, AFL-CIO (Tadd's Service), 172 NLRB 652. If the Union shows a lack of interest in determining how an employer's labor costs compare with the area standards or does not make a reasonable effort to obtain data to make such a determina- tion, the area standards claim must be viewed with skepticism. Cf.SteamfittersLocal Union No. 614, AFL-CIO (Trumbo Welding and Fabricating Company), 199 NLRB 1026, Local Joint Executive Board, Bartenders and Culinary Workers of Las Vegas and Vicinity, AFL-CIO (Holiday Inn of Las Vegas), 169 NLRB 683. In a similar vein, a union's demand for noneconomic benefits, such as a grievance procedure, would indicate the desire for a bargaining relationship rather than area standards that would allow employers with contracts to successfully compete with employers whose labor costs were less. Giant Food 166 NLRB 818. D. Application of the Law to the Facts As set forth above, Respondent engaged in three bursts of activity concerning- Perry's. The first was from March 25, 1969, through December 16, 1970, during which time Respondent made a number of written and oral demands for a contract and therefore for recognition. That was followed by a hiatus of a little more than a year and a half. The second was from July 13, 1972, through August 30, 1972, when the Union again demanded a contract and, in addition, indicated its intention to organize Perry's employees .9 That was followed by a hiatus of almost 5 months. The third began on January 24, 1973, with Belardi's letter of that date to Perry's and ended with the cessation of picketing on April 24, 1973. The credited evidence establishes that as of August 30, 1972, the Union was seeking to organize Perry's employees and to obtain a contract from Perry's. However, the Union took no action for almost 5 months until its January 24, 1973, letter disclaimed those objectives and demanded that Perry's maintain area standards in terms of total labor costs. That letter stated that all portions of the contract which did not involve labor costs such as union security and grievance procedure should be ignored. It also demanded satisfactory evidence that Perry's had adopted the area standards. The letter does not go beyond a lawful demand for area standards and nothing in it warrants the inference that it is a pretext to disguise a continued recognitional or organizational object. Cassel's answer to the Union dated January 30, 1973, states that Perry's has reason to believe that it was meeting area standards and indicated that its claim could be verified by the Union speaking to the employees. Cassel did not offer to furnish any other evidence. However, the Union was not in a position to make an evaluation,of Perry's labor costs by speaking to Perry's employees. As was indicated by the results of the election, Perry's employees were not sympathetic toward the Union and the Union could not even at that time reasonably anticipate cooperation from those employees. In any event, it is doubtful whether the employees themselves would have had knowledge concerning the costs of fringe benefits paid by Perry's. The picketing began on March 6, 1973. The picket signs stated that Perry's was failing to meet the prevailing area standards as to wages and other labor costs. Nothing on the signs warranted an inference that the "area standards" objective was a pretext. There is no evidence that anything said or done on the picket line warranted such an inference. 9 As is found above, Belardi introduced Mayer and Shawn as the people all the restaurants in the near future. who were going to organize on Union Street and who would be contacting SAN FRANCISCO LOCAL EXECUTIVE BOARD 205 By letter dated March 21, 1973, the Union notified the Regional Director that it had disclaimed any interest in representing or organizing Perry's employees. That letter was consistent with the previous disclaimer the Union had sent to Perry's. However, the situation changed. The Union's request for data to determine Perry's labor costs was met at least in part by Cassel's letter dated March 14, 1973. Cassel disclaimed any obligation to provide labor cost data, but nonetheless stated that Perry's had 34 employees in the bargaining unit, that its total weekly labor costs for wages and nonstatutory fringe benefits was $4,168.34, and that the total labor costs for wages and fringe benefits for employees pursuant to the contract would have been $4,036.62. The letter went on to offer the Union a means by which it could confirm Perry's weekly labor costs. It said that an itemization of the weekly totals had been provided to the Board and that if the Umon required further evidence of the above figures, any authorized agent of the Board would be provided with full access to Perry's business records and financial statements in order that the Board agent might independently certify to the Union the accuracy of the total labor costs. By letter dated March 15, 1973, the Union's attorney rejected Perry's offer, stating that it was childish for Perry to continue to refuse to furnish intelligible information and that the Union would continue to assume that Perry's did not meet area standards if Perry's did not demonstrate to the Union that it did. The question is therefore raised whether the Union took that position in order to avoid knowing Perry's total labor costs. Perry's was under no legal obligation to .furnish the Union with labor cost information. The Union was not the collective-bargainng agent of Perry's employees. On the other hand, the Union was under no legal obligation to accept Perry's unsubstantiated claims as to total labor costs. However, as indicated by the cases cited above, if a union is to be credited in its assertion that it is picketing solely for area standards, it must make reasonable efforts to obtain data upon which to base its evaluation that an employer does not meet area standards. In the circum- stances of this case, that data could come only from Perry's. Perry's did give the Union the conclusionary information and also offered a means by which that information could be verified. The Union's refusal to consider that means strongly indicates that it did not desire to know whether or not Perry's in fact did meet area standards. The Union was fully aware of Perry's reluctance to open its books for inspection by the Union and the insistence on that procedure when other means of verification were open for exploration, warrants the conclusion that the Union was seeking to block access to the verification rather than to obtain it. I find that the Union was not 'in good faith seeking the information needed to ascertain whether Perry's was meeting area standards. It follows, and I find, that the Union's picketing was not to secure area standards and that the area standards issue was raised merely as a pretext. I further find that the Union's disclaimers of organization- al and recognitional objectives were not made in good faith. Respondent had a longstanding recognitional and organizational object with regard to Perry's. As the disclaimer of January 24, 1973, and thereafter as well as the area standards claim were not made in good faith, I find that an object of the picketing was organizational and recognitional. A valid election was therefore held under the provisions of Section 8(b)(7)(C) and 9(c) of the Act. In conclusion, I find that the Union violated Section 8(b)(7)(B) of the Act by picketing Perry's from April 11 through 24, 1973, for' a recognitional and organizational object where the Umon was not certified as the respresen- tative of Perry's employees and where within the preceding 12 months a valid election under Section 9(c) of the Act had been conducted. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in section III, above, occurring in connection with the operations of Perry's 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 Union has violated Section 8(b)(7)(B) of the Act, I shall recommend that it be ordered to cease therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Where Section 8(b)(7)(B) has been violated, the usual remedy is to ban picketing for 1 year from the date on which the unlawful picketing ceased. Retail Store Employ- ees' Union, Local No. 692 (Irvin, Inc.), supra; San Francisco Local Joint_ Executive Board of Culinary Workers, Bartend- ers, Hotel,- Motel and Club Service Workers, AFL-CIO, et al., (Coffee Cantata, Ltd.), 196 NLRB 633. I shall therefore recommend that picketing for the proscribed objects be banned for a period of 1 year from April 24, 1973. In San Francisco Local Joint Executive Board of Culinary Workers, Bartenders, Hotel, Motel and Club Service Work- ers, AFL-CIO, et al., (Associated Union Street Restaurants), 202 NLRB 726, which also involved a violation of Section 8(b)(7)(B), the Board held that a broad order against the same union that is the Respondent in the instant case was appropriate because the union had demonstrated a proclivity to violate the Act.10 I shall therefore recommend a broad remedial order. 10 The Board held. "[W ]e have long held, with court approval, that a broad remedial order is appropriate whenever a proclivity to violate the Act is established, either by the facts, within a particular case, or by prior Board decisions against the respondent at bar based upon similar unlawful conduct in the past " (fns. omitted.)3 In the present case, Respondent was found to have engaged in unlawful picketing at The Cooperage and The Vmter, restaurants located on Umon Street in San Francisco, in contravention of Section 8(b)(7)(B) of the Act. We also note that Respondent was just recently found to have violated the same section of the Act by its unlawful picketing at Coffee Cantata, Ltd., another restaurant on Union Street .4 Moreover, the record in the instant case discloses an alleged plan by Respondent to organize all the restaurants on Union Street. Indeed, the record discloses that Respondent was picketing (Continued) 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Perry's is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. By picketing Perry's where an object thereof was forcing or requiring Perry's to recognize and bargain with the Union as the representative of Perry's employees, and forcing or requiring the employees of Perry's to accept or select the Union as their collective-bargaining representa- tive, where the Union was not currently certified as the representative of those employees and where within the preceding 12 months a valid election under Section 9(c) of the Act had been conducted, the Union has engaged in unfair labor practices in violation 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. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed:11 ORDER San Francisco Local Joint Executive Board of Culinary Workers, Bartenders, Hotel, Motel and Club Service Workers, AFL-CIO, its officers, agents, and assigns, shall: 1. Cease and desist from: (a) Picketing or causing to be picketed, or threatening to picket or cause to be picketed, APB Enterprises, Inc., d/b/a Perry's, where an object thereof is forcing or requiring Perry's to recognize-or bargain collectively with said Union, or forcing or requiring the employees of Perry's to accept or select it as their collective-bargaining representative, for a period of 1 year from April 24, 1973. (b) Picketing or causing to be picketed, or threatening to picket or cause to be picketed, APB Enterprises, Inc., d/b/a Perry's, or any other employer engaged in com- merce within the meaning of the Act, where an object thereof is forcing or requiring Perry's or such other employer to recognize or bargain collectively with said Union, or forcing or requiring the employees of Perry's or other restaurants in the area at the time it was picketing the restaurants herein. Considering all the circumstances, we firmly believe that Respondent's proclivity to-violate the Act in this regard has been well established and we shall, therefore, affirm our Original Decision and Order. 3 H.A. Carney and David Thompson, Partners, d/b/a C & T Trucking Co. 191 NLRB 11, and cases cited therein. { 196 NLRB 633. 1 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and recommended Order herein shall, as provided by Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 32 In the event that the Board's 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." such other employer to accept or select it as their collective-bargaining representative, where within the preceding 12 months a valid election under Section 9(c) of the Act has been conducted which said Union did not win. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its business office and meeting halls, copies of the attached notice marked "Appendix." 12 Copies of said notice on forms provided by the Regional Director for Region 20, after being duly signed - by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are posted. Reasonable steps shall be taken by Respondent to insure -that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 20 signed copies of the aforementioned notice for posting by Perry's, if Perry's is ,willing, in places where notices to,employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for Region 20, shall, after being duly signed by the Union's official representa- tive, be returned forthwith to said Regional Director. (c) Notify said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify you that: WE WILL NOT picket or cause to be picketed, or threaten to picket or cause to be picketed, APB Enterprises, Inc., d/b/a Perry's, where an object thereof is forcing or requiring Perry's to recognize or bargain collectively with us, or forcing or requiring the employees 'of Perry's to accept or select us as their collective-bargaining representative, for a period of 1 year from April24, 1973. WE WILL NOT picket or cause to be picketed, or threaten to picket or cause to be picketed, APB Enterprises, Inc., d/b/a Perry's, or any other employer engaged in commerce within the Act, where an'object thereof is forcing or requiring Perry's or such other employer to recognize or bargain collectively with us, or forcing or requiring the employees of Perry's or such other employer to accept or select us as their collective- bargaining representative, where within the preceding 12 months a valid election under Section 9(c) of the Act has been conducted which we did not win. SAN FRANCISCO LOCAL JOINT EXECUTIVE BOARD OF CULINARY WORKERS, BARTENDERS, HOTEL, MOTEL AND CLUB SERVICE WORKERS, AFL-CIO (Union) SAN FRANCISCO LOCAL EXECUTIVE' BOARD 207 Dated By or covered by any other material. Any questions concern- (Representative) (Title) ing this notice or compliance with its provisions may be directed to the Board's Office, 13018 Federal Building, 450 This is an official notice and must not be defaced by Golden Gate Avenue, Box 36047, San Francisco, Califor- anyone. nia 94102, Telephone 415-556-0335. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced,