Hotel, Motel, Restaurant Employees

HOTEL, MOTEL, RESTAURANT EMPLOYEES Hotel, Motel, Restaurant Employees and Bartenders Union, Local 737, AFL-CIO and Jets Services, Inc. Case 12-CP- 193 August 31, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER Upon a charge duly filed by Jets Services, Inc. (herein Jets), against Hotel, Motel, Restaurant Employees and Bartenders Union, Local 737, AFL- CIO (herein Local 737 or Respondent), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12, on January 16, 1976, issued and served on the parties a complaint alleging that Respondent violated Section 8(b)(7)(C) of the Act by engaging in recognitional picketing at Jets' food service facilities at the Kennedy Space Center for more than a reasonable period of time without filing a representation petition for a Board election. A hearing was held on February 18 and 19, 1976, before Administrative Law Judge Ivar H. Peterson at which time certain exhibits were received into evidence and certain stipulations were entered into on the record. The parties agreed, inter alia, that the stipulation of facts submitted by the General Counsel may be retyped and received into evidence as General Counsel's Exhibit 2. They further agreed that the stipulation may be substituted in lieu of oral testimony, subject to approval by the Board. At the request of the parties, the Administrative Law Judge referred the proceeding to the Board for decision. Thereafter, on March 12, 1976, the General Counsel filed a motion to correct the transcript and to receive the exhibit into the record with a stipulation of facts and an addendum signed by the parties attached. The General Counsel moved that the Board correct the transcript in certain respects and that the Board receive General Counsel's Exhibit 2 into the record. He submitted that the parties had no objection to the granting of the motion. By order dated April 1, 1976, the Board approved the stipulation, transferred the proceeding to itself, and set a date for the filing of briefs. Thereafter, briefs were filed by the General Counsel, Jets, and Respondent. The order also granted General Coun- sel's above-described motion. 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 entire record herein, including the briefs, and makes the following: 231 NLRB No. 176 FINDINGS OF FACT I. THE BUSINESS OF JETS SERVICES, INC. Jets, a Florida corporation with its principal place of business located in Jacksonville, Florida, provides food services at various Government installations throughout the country. During the past year, Jets, in the course and conduct of its business operations, received in excess of $1 million for services per- formed in connection with contracts with the U.S. Government. During the same period, it purchased and received goods, materials, and supplies valued in excess of $50,000, shipped to it directly across the state lines. Since on or about August 16, 1975, Jets has operated a concessionaire food service facility at Kennedy Space Center (hereinafter referred to as KSC) at Merritt Island, Florida, and projects its gross revenues therefrom will be in excess of $750,000 annually. It also projects that during the same period its purchases of goods, supplies, and materials for the KSC operation will be in excess of $50,000 from Florida suppliers who themselves receive said goods, supplies, and materials directly from outside the State of Florida. The parties stipulated, and we find, that Jets is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We also find that it will effectuate the policies of the Act to assert jurisdiction herein. II. RESPONDENT'S STATUS AS A LABOR ORGANIZATION The parties stipulated, and we find, that Respon- dent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Stipulated Facts During recent years prior to August 16, 1975, ARA Services, Inc. (ARA), was under contract with the National Aeronautics and Space Administration (NASA) to provide food services at KSC. Local 737 was recognized by ARA as the exclusive bargaining representative for its food service employees. ARA and Local 737 were parties to successive collective- bargaining agreements, the most recent of which became effective May 23, 1974, and was not due to expire until May 31, 1977. As of August 15, 1975, there were approximately 34 employees covered by the contract. On or about July 17, 1975, Jets, as the result of competitive bidding, was awarded a "concession- aire" food service contract at KSC designed to 1049 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replace ARA's contract. ARA's contract with NASA had been a "mission" contract.' Jets commenced operations on August 16, 1975. In December 1974, Jets had informed representa- tives of NASA that, according to its past experience involving Government contracts, Jets would expect to hire 90 percent of ARA's current work force if Jets was awarded the concession. Local 737 was, in turn, apprised of this by NASA officials. However, Jets at no time assumed a contractual obligation to employ any of ARA's work force at KSC. On or about July 30, 1975, Thomas Gibbs, vice president of Jets, received a call from Paul McCast- land, an International vice president and administra- tor of Local 737. McCastland stated to Gibbs that he was calling Lawrence Barnett, president of Jets, to request an early or immediate meeting to discuss contract negotiations. Gibbs replied that such a request was premature and that Jets wanted to wait until it had met its hiring requirements and had determined whether Local 737 represented a majori- ty. Shortly after this conversation, Gibbs received a phone call from an admitted business agent of Local 737 who asked if Jets intended to sign the contract ARA had with Local 737. Gibbs informed the caller of his earlier conversation with McCastland. On August 15, 1975, a meeting was held between the parties and others at KSC. Representing Local 737 were Business Representative Ed Page and counsel for Local 737. Jets' president, Barnett, and Gibbs were in attendance for Jets. Jets was not represented by counsel at this meeting. Representa- tives of other unions at KSC were also in atten- dance.2 Counsel for Local 737 informed those at the meeting that it was reported to him that several employees of Jets had been fired without being given a chance to perform for Jets; also, that Local 737 had been previously informed that Jets was going to hire 90 percent of the ARA work force and that it was Local 737's opinion that the only reason for the present employment action by Jets would be to destroy the Union's majority. Barnett replied that Jets had no intention of breaking the Union. Gibbs added that if Local 737 showed it represented a majority of employees Jets would negotiate a contract with it. Barnett also stated that a representative of Jets interviewed the former ARA employees who had applied for jobs with Jets along with other applicants and that Jets A "mission" contract is essentially a "cost-plus" contract. A "conces- sionaire" agreement is not "cost-plus." Rather, the concessionaire's profit, if any, is determined by what remains of its income from sales deducting all costs of operations. Jets is obligated to pay the wages and fringe benefits as set forth in wage determinations issued by the Department of Labor. I Member Jenkins mistakenly finds that until the August 15 meeting had hired the best available personnel. He also stated that he wanted to make clear that Jets had not fired anyone and that Jets was hiring only the ARA employees it wanted to employ. Further, the ARA employees not offered employment were persons who Jets believed were not qualified or failed to show the proper motivation to work. Counsel for Local 737 stated that the Local was not interested in a contract but in keeping the ARA employees employed. He added that Jets could not just fire these employees, many of whom were longtime employees, and that if the Company were really sincere about discharging certain employees for incompetence it should keep the entire ARA employee complement working, keep the contract in effect, fire those workers it believed incompetent, and use the grievance-arbitration procedure to determine if they actually were incompetent. Barnett said that this approach was not acceptable to Jets and that Jets was aware of its legal rights and had made its decision as to employment. During the meeting, counsel for Local 737 in- formed Jets that he had full authority from the Union including strike action and would use such authority unless the ARA employees were hired. The other union representatives stated that they would not tolerate this type of situation and would boycott Jets' food service operations. The meeting ended without a resolution of the dispute. At no time prior to the August 15 meeting did Jets directly notify Local 737 of the number and names of the employees it would employ or that it would not be employing any of the ARA employees. ARA employees were interviewed by Jets around the end of July 1975. All employees who were to be employed were notified about August 8 or 9. Those who were not selected received no notification whatsoever. On or about August 16, 1975, Jets commenced operations at KSC with an employee complement of 34, 8 of whom were former ARA employees who had been represented by Local 737. The remainder were hired as a result of interviews with local employment agencies and through other means. On or about August 18, 1975, Local 737 filed a charge against Jets alleging violations of Section 8(a)(1), (3), and (5) of the Act (Case 12-CA-6889). The charge alleged that Jets had unlawfully dis- charged the former ARA employees who were not employed by Jets on August 16, 1975, and that Jets has refused to bargain since on or about August 16, Respondent had no reason to believe that Jets would not be hiring virtually all of the then employed cafeteria workers. Our colleague apparently relies on this fact to support his conclusion that Jets' dealing with Respondent was less than even-handed. The fact is, however, that the August 15 meeting was called specifically to allow Respondent an opportunity to protest to Jets its decision not to rehire the former ARA employees. 1050 HOTEL, MOTEL, RESTAURANT EMPLOYEES 1975. Local 737 presented no evidence in support of the charge and subsequently withdrew it on or about September 10, 1975. On August 18, 1975, Local 737 commenced picketing Jets. Pickets carried signs stating: "Hotel, Motel, Restaurant Employees and Bartenders Union, Local 737, AFL-CIO-On Strike- Against-Jets Food Services-Unfair." On September 18, 1975, Local 737 filed a charge against Jets, alleging violations of Section 8(a)(1) and (3) of the Act (Case 12-CA-6924). Respondent asserted that by discharging 30 or more employees because of their support for Local 737 Jets intended to and did destroy its majority status. A cover letter accompanying the charge requested a Steel-Fab bargaining order if the facts so warranted. (Steel-Fab, Inc., 212 NLRB 363 (1974).) However, the letter also stated that the language of the charge should not be construed as alleging an 8(a)(5) allegation. After presentation of evidence by both sides, the charge was withdrawn on October 3, 1975. On September 18, 1975, Jets filed a charge in Case 12-CP-191, alleging that Local 737 was violating Section 8(b)(7)(C) of the Act by picketing without having filed a petition for a period longer than 30 days. The picketing which began on August 16, 1975, continued without interruption until October 2, 1975. Throughout the picketing Local 737 distributed a handbill to the public urging individuals not to eat at KSC cafeterias "unless and until these people [former ARA employees] are put [black to work Upon notification by Region 12 that the Regional Director had determined that reasonable cause existed to believe that the picketing by Local 737 was with an object proscribed by Section 8(b)(7)(C), Local 737 immediately halted its picketing on October 2, 1975. Thereafter, Local 737 entered into an informal settlement agreement later approved by the Regional Director. As a result thereof, Local 737 voluntarily agreed to cease all picketing of Jets for 21 days from October 2, 1975. In compliance therewith, Local 737 in fact ceased picketing for the stated period, and posted all required notices. To date the settlement agreement has not been set aside. A number of phone calls between counsel for Jets and Local 737 ensued concerning the possibility of settling their dispute, including one conversation on October 14, 1975. During that conversation, counsel for Local 737 raised the issue of the possible implementation of a pretrial hiring list. Counsel for Jets stated that he had not discussed that possibility with Jets and was unsure as to how Jets would receive such a proposal. However, he stated that he would communicate the substance of their discussion to his client. Counsel for Jets then stated that he would need to know how many former ARA employees still wanted to work for Jets and would therefore be the subject of the preferential hiring list. Counsel for Jets indicated that he would like to have this information before discussing the topic with Jets. Counsel for Local 737 answered that he was unaware of the number of former ARA employees still desiring employment with Jets but that he would contact Ed Page, who would be able to ascertain the requested information and thereafter advise counsel for Jets. At no time in that conversation did either party mention that recognition of Local 737 by Jets was or was not required as a condition of settlement. On October 21, 1975, counsel for Local 737 sent Harold Gooch, chief of the labor relations section of NASA at KSC, a mailgram informing him that Local 737 would picket Jets beginning Friday, October 24, 1975. The advance notice was given to allow NASA time to establish reserve gates. On October 24, 1975, counsel for Local 737 sent Jets a mailgram stating that the sole object of the picketing was to protest the discharge of former ARA employees represented by Local 737 and that picketing would cease when those employees were rehired. The mailgram also disclaimed any other object of the picketing. Beginning on October 24, 1975, Local 737 picketed Jets at gate 2 of KSC with the signs identical to those described above except for the deletion of the word "against." On November 4, 1975, counsel for Local 737 sent counsel for Jets a letter advising him that Local 737 was willing to discuss terms for settlement of the dispute. On December 10, 1975, counsel for Jets sent a letter in response to the above-noted letter. Therein counsel for Jets stated that, in response to his client's question concerning its obligation to negotiate with Local 737 if it agreed to hire the remaining former ARA employees, counsel had informed Jets that he felt constrained to advise it that such an obligation was contemplated as part of any settlement in this matter. In any event he said the NLRB would hold that Jets would have such an obligation after it had hired a substantial number of the former ARA employees. On December 22, 1975, Jets filed the charge in the instant case alleging that the picketing which commenced on October 24, 1975, violated Section 8(b)(7)(C) of the Act (Case 12-CP- 193). Throughout the second period of picketing, from October 24, 1975, through January 12, 1976, Respon- dent distributed handbills that were similar in content to the one previously described. 1051 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 10, 1976, counsel for Local 737 informed counsel for the General Counsel that the picketing would cease and that Local 737 would litigate the merits of Case 12-CP-193 befo e the Board. On January 12, Local 737 ceased its picketing of Jets. At no time during the picketing commencing on October 24, 1975, and ending January 12, 1976, did the picketing result in the interruption of any deliveries. B. Discussion Section 8(b)(7)(C) of the Act makes it unlawful for a labor organization, inter alia, to picket an employer with an object of requiring the employer to recognize or bargain with the labor organization, where the picketing has been conducted without a petition under Section 9(c) being filed within a reasonable period of time not exceeding 30 days. While Respondent stipulated that it picketed Jets for more than 30 days after the commencement of picketing on October 24, 1975, without filing a petition as provided by Section 9(c) of the Act, it denies that the picketing had a recognitional or bargaining objective and therefore that the picketing was unlawful. It argues that its conduct prior to the commencement of the October 24 picketing is not determinative of proscribed object and that picketing to secure the reinstatement of the discharged ARA employees is not by itself picketing for a recognitional object in violation of Section 8(b)(7)(C).3 On the other hand, the General Counsel contends that Respondent's recognitional object in picketing is established by the fact that it sought the mass reinstatement of 26 employees it represents in a unit of 34 employees, 8 of whom are former employees of ARA represented by Respondent, and by the events which preceded the settlement agreement entered into in October 1975. The object of picketing in an 8(b)(7)(C) situation is primarily a fact determination. Therefore all ele- ments of proof relevant to the issue are important.4 This includes events which preceded the October 1975 settlement agreement. Such events are relevant in assessing Respondent's postsettlement conduct.5 On July 30, Jets' vice president, Gibbs, received a request from International vice president and admin- istrator of Respondent, Paul McCastland, regarding the early commencement of contract negotiations between Jets and Respondent. On the same day Gibbs received a phone call from an admitted :1 Respondent does not contend that the picketing is within the protection of the second proviso to Sec. 8(bX7XC). 4 Shell Chemical Company, a Division of Shell Oil Company v. N.L.R.B., 495 F.2d 116 (C.A. 5, 1974). " Cf. Northern California District Council of Hod Carriers and Common business agent of the Respondent inquiring whether Jets intended to sign the same contract Respondent had negotiated with ARA. After it had become evident that Jets was not planning to adopt the collective-bargaining agreement its predecessor had negotiated with Respondent, a meeting was sched- uled for August 15, 1975, to allow both parties an opportunity to define their positions and possibly resolve their differences. At this meeting, counsel for Respondent stated that Respondent was not interest- ed in a contract but was only concerned with the retention of all former ARA employees. He also stated that, if Jets did indeed believe that members of the ARA work force who were not hired were incompetent, the least Jets could do was to keep all ARA employees working, keep the contract in force, discharge those claimed to be incompetent, and use the grievance-arbitration procedure to determine if they really were incompetent. Unable to reach an accord, Respondent commenced the picketing of Jets on August 16, 1975, and on August 18 filed a charge with the Board charging Jets with violations of Section 8(a)(l), (3), and (5) of the Act, the latter involving an alleged refusal to bargain since on or about August 16, 1975. The charges were subse- quently withdrawn before the presentation of evi- dence. On September 18, the Respondent again filed a charge, this time alleging that Jets had violated Section 8(a)(1) and (3) of the Act. In a letter accompanying the filing of the charge, Respondent's counsel emphasized the fact that nothing contained in the charge should be construed as an allegation of an 8(a)(5) violation. Rather, the charge was framed so as to put the Board on notice that, if the facts warranted, the Union was desirous of a Steel-Fab bargaining order.6 The above-described conduct which preceded the October 1975 settlement clearly indicates that at least one object of the picketing between August 16 and October 2, 1975, had a recognitional or bargaining objective. We so find. The General Counsel further contends that the picketing which commenced October 24, 1975, for the admitted purpose of seeking the mass reinstate- ment of former ARA employees further evidences the recognitional object of that picketing. While he disclaims any contention that picketing for the Laborers of America, AFL-CIO, et al. (Joseph Mohamed, Sr., an Individual, d/b/a Joseph's Landscaping Service), 154 NLRB 1384, fn. 1 (1965), enfd. 389 F.2d 721 (C.A. 9, 1968). Respondent requests that the Board overrule this decision. We decline to do so. 6 Steel-Fab, Inc., 212 NLRB 363 (1974). 1052 HOTEL, MOTEL, RESTAURANT EMPLOYEES reinstatement of a discharged employee is per se picketing for a recognitional objective,' he does contend that since Respondent's picketing was for the mass reinstatement of former ARA employees the effect of the picketing if successful would be the reestablishment of Respondent's earlier majority status and would require Jets to recognize and bargain with Respondent. Accordingly, he asserts the picketing had a recognitional objective. We find merit in this contention. In Gazette Printing Company, 175 NLRB 1103 (1969), a recently certified union struck in support of its contract demands. The strike continued beyond the certification year. The employer filed an RM petition. In response the union filed a disclaimer of interest and ceased picketing. The employer there- upon requested leave to withdraw its petition. Three days later the union resumed picketing with signs stating that the employer was unfair. The union claimed that the renewed picketing was no longer in support of its bargaining demands but to compel reinstatement of the striking employees. The Region- al Director dismissed the RM petition upon the basis of the union's disclaimer. In finding the disclaimer ineffective and in directing an election, the Board said (175 NLRB at 1104): We view it as highly significant in this case that the Union was not picketing for reinstatement of one or a small number of employees, but for a mass reinstatement of all strikers. Since the strikers were union adherents, the immediate consequences of mass reinstatement would have been the reestablishment of the Union's earlier majority status. Under these circumstances, we do not believe that the Union, in pressing for a mass reinstatement, can realistically be said to have I Local 259. International Union, United Automobile. Aircraft and Agricultural Implement Workers of America, UA W. AFL CIO (Fanelli Ford Sales. Incr. , 133 NLRB 1468 (1961). . Cf. International Longshoremen's and Warehousemen's Union Local No. ( Watera)y Terminals Company), 193 NLRB 477, 486 (1971). It should be noted Respondent's refusal to employ former ARA employees was not unlawful. This is not a case therefore of a union picketing to secure the reinstatement of discriminatorily discharged employees. 4 Contrary to our dissenting colleague we find that "the fact that reinstatement might have additional consequences and eventually result in recognition of Respondent" is a factor that is crucial to the proper disposition of this proceeding and strikes at the very essence ofan 8(bX7XC) violation. In Fanelli Ford Sales, Inc., 133 NLRB 1468, the Board stated: It maN not be gainsaid, of course, that picketing for an employee's reinstatement may in some circumstances be used as a pretext for attaining [representation I of all the employees in a certain unit. Although the Board dismissed the 8(bX7(XC) complaint in that decision, it did so only because the record failed to provide additional evidence that the respondent's picketing was for an unlawful object. The Board. then, as now. recognizes that picketing for the reinstatement of employees is not per se unlawful, However. that is not the case here. Our dissenting colleague would have had only a future, but not a present, object of recognition. In finding that the Union took actions inconsis- tent with its disclaimer, we do not rely only on the Union's continued picketing for mass reinstate- ment which, if achieved, would immediately have given the Union majority status. We also think it significant that from June 1967, until October 24, 1968, the Union had continuously picketed in support of bargaining demands. The Board has stated that if there is recognitional picketing immediately prior to the alleged shift in purpose, it will view the alleged shift in purpose with "some skepticism." This is particularly true where, as here, the Union resumes picketing after a very brief hiatus. For all these reasons, we find that the post- October 28 picketing had an immediate recogni- tional objective, notwithstanding the Union's disclaimer. In view of all the circumstances, including Respon- dent's presettlement conduct and the stated object of the picketing, we find that the picketing which commenced on October 24, 1975, had an immediate recognitional object.8 As it continued for more than 30 days without the filing of a representation petition, we further find that Respondent thereby violated Section 8(b)(7XC) of the Act. 9 CONCLUSIONS OF LAW I. Jets Services, Inc., is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel, Motel, Restaurant Employees and Bartenders Union, Local 737, AFL-CIO, is a labor us view Respondent's conduct in a vacuum and totally disregard the first period of picketing which clearly possessed a recognitional object evidenced by no less than: (I) Respondent's request to continue in effect the ARA collective-bargaining agreement; (2) the filing of a charge which included, inter alia. allegations of violations of Sec. 8(aX5) of the Act; and (3) Respondent's request for a Steel-Fab bargaining order. To ignore the events occurring only weeks before the commencement of the second picketing would be to ignore the realities of the situation. Respondent, by its conduct during August and September. manifested a patent and continuing desire to reestablish its status as the unit's bargaining representative. Respondent sought to achieve this end through the coerced rehiring of all former ARA employees. In light of its previous conduct, the resumption of picketing on October 24 calls into question the true motive behind Respondent's decision to return to the picket line. Respondent's rapid abandonment of its proposal to implement a preferential hinng list in lieu of mass reinstatement convinces us that Respondent indeed contemplated a return to the status quo. The judicial determination of an 8(bX7XC) violation requires a thorough examination of the totality of the circumstances surrounding the alleged violation. Building Service Employees Union. Local No. 87, AFL-CIO (Liberit House/Rhodes), 223 NLRB 30(1976). Therefore. after consideration of all the events discussed in this proceeding, we find that Respondent's picketing subsequent to October 24 possessed an unlawful object in violation of the Act. 1053 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization within the meaning of Section 2(5) of the Act. 3. By picketing at Jets Services, Inc.'s food service facilities at the Kennedy Space Center, Merritt Island, Florida, from October 24, 1975, to January 12, 1976. without having filed a petition under Section 9(c) of the Act, with an object of forcing or requiring Jets to recognize and bargain with the Respondent as the collective-bargaining representa- tive of the employees of Jets, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(7)(C) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall recommend that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Hotel, Motel, Restaurant Employees and Bartenders Union, Local 737, AFL CIO, Orlando, Florida, its officers, agents, and representatives, shall: I. Cease and desist from picketing, or causing to be picketed, or threatening to picket the Jets Services, Inc., Kennedy Space Center food service facilities in Merritt Island, Florida, with an object of forcing or requiring Jets to recognize Respondent as the collective-bargaining representative of Jets' employ- ees, at a time when Respondent is not certified as such representative and where such picketing has been conducted without a petition under Section 9(c) being filed within a reasonable period of time not to exceed 30 days from the commencement of such picketing. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at each of its offices and other facilities copies of the attached notice marked "Appendix."1 0 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained "' In the event that this Order is enforced by a Judgment of a 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." by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail forthwith to the aforesaid Regional Director for Region 12, signed copies of said notice for posting by Jets Services, Inc., if it is willing, in places where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. MEMBER JENKINS, dissenting: I disagree with my colleagues' findings of a violation of Section 8(b)(7)(C) and would dismiss the complaint. I am persuaded that the facts, which are stipulated, demonstrate (I) that Respondent's picket- ing did not have a recognitional objective, and (2), in any event, that the picketing was within the scope of the proviso to Section 8(b)(7)(C) because its purpose was to advise consumers that the Employer had discharged and refused to reemploy its members." Construction Laborers International Union of North America, AFL-CIO, Laborers Local 1140 (Lanco Corporation), 227 NLRB 1247 (1977). My colleagues find that the picketing which commenced on October 24, 1975, had a recognitional object (1) because one object of Respondent's earlier picketing between August 16 and October 2, 1975, was recognitional, and (2) because the picketing was for the mass reinstatement of former ARA employ- ees who would have constituted a majority if hired by Jets. Neither of these grounds for decision is tenable. The circumstances surrounding Jets' dis- charge of 26 of 34 of ARA's former employees and Respondent's picketing in protest thereof preclude the object of the earlier picketing from being imputed to the later, particularly in light of the terms of the settlement of the charge arising out of the earlier picketing. As to Respondent's effort to have all the discharged employees rehired, seeking mass rein- statement alone does not establish a recognitional objective. Affirmative evidence of a purpose beyond mere reinstatement is required to prove a violation of Section 8(b)(7)(C). Not only is such evidence lacking in the present case, but the stipulated facts disprove an unlawful purpose. " It is stipulated that the picketing did not result in the interruption of any deliveries. 1054 HOTEL, MOTEL, RESTAURANT EMPLOYEES Even if Respondent's August-September picketing had a bargaining objective, the circumstances sur- rounding that picketing prevent the conclusion that the later picketing commencing October 24 also had a prohibited recognitional objective. Prior to Jets' taking over the cafeteria operations on August 16, 1975, Respondent had been the collective-bargaining representative of the cafeteria employees at the space center. When Jets became the low bidder in early 1975, Respondent was notified by NASA officials that Jets had indicated to NASA that it would probably employ 90 percent of the existing cafeteria force. With Jets' indication that it would hire 90 percent of the current work force, it was entirely appropriate for Respondent to contact Jets, which clearly would have been a successor employer, regarding acceptance of the existing ARA collective- bargaining agreement or negotiation of a new agreement. Until the August 15 meeting, Respondent had no reason to believe that Jets would not be hiring virtually all of the then employed cafeteria workers.12 Less than 24 hours before Jets was to take over operations, Respondent first learned that only eight former employees were to be employed, with almost 75 percent of the existing complement being in effect discharged. Although Jets was under no legal obligation to notify or discuss with Respondent its hiring plans, the fact that it misled Respondent and the ARA employees by its representation to NASA officials and never advised anyone otherwise until the day before it commenced operations justified the suspicion on the part of Respondent and the discharged employees that Jets was intent upon destroying the union majority. In these circumstanc- es, picketing and filing unfair labor practice charges to preserve its representation status and protect the discharged employees in accordance with what it in good faith believed to be its legal rights cannot properly be considered evidence of an unlawful objective in its subsequent picketing. Respondent ceased picketing and withdrew its unfair labor practice charges against Jets when it was satisfied that it could not sustain its claims of violations of its bargaining rights and its members' employment rights. It entered into the October 2, 1975, settlement agreement when it was advised by the Regional Office that reasonable cause existed to believe that the picketing was for an object proscrib- ed by Section 8(b)(7)(C). The settlement agreement made clear that Respondent intended to picket to protest Jets' discharge of the ARA employees, after a 12 I am at a loss to understand my colleagues' assertion in fn. 2 of their Decision that this statement is incorrect. The parties stipulated that "[T ]hose ARA employees who were not selected for employment were given noi notification of any sort by Jets.... At no time prior to the August 15, suitable hiatus, by its provision that Respondent would cease picketing for a period of 21 days after October 2. After expiration of the prescribed 21 days, Respon- dent commenced picketing to protest the discharges and made clear its limited purpose, disclaiming any recognitional object. On October 22, Respondent sent NASA officials a mailgram advising that picketing would commence on October 24, and that the picketing: . . . will be for sole object of protesting dis- charge of former ARA employees represented by Local 737. Picketing will cease when those employees are rehired by Jets. Local 737 dis- claims any other object in conducting picketing. On October 24, Respondent also sent Jets a similar mailgram again disclaiming any object other than the purpose of protesting Jets' failure to hire the former ARA employees. Against this background, the inference of an unlawful object in the later picketing because of the asserted dual purposes of the earlier picketing is clearly unwarranted. Both the courts and the Board have rejected the presumption of a continued unlawful object in the absence of evidence to support the presumption. It was rejected by the U.S. Court of Appeals for the Second Circuit in N. LR.B. v. Local 50, Bakery and Confectionery Workers International Union, AFL-CIO [Arnold Bakers, Inc.], 245 F.2d 542, 547 (1957), and by the Board in Local 344, Retail Clerks International Association AFL-CIO (Alton Myers Brothers, Inc.), 136 NLRB 1270, 1273 (1962); Building and Construction Trades Council of Philadel- phia and Vicinity, AFL-CIO (Altemose Construction Co.), 222 NLRB 1276, fn. 2 (1976). See also San Francisco Local Joint Executive Board of Culinary Workers, etc., A FL-CIO (A BP Enterprises, Inc. d/b/a Perry's), 207 NLRB 199, 204 (1973). Thus, although a union's object is initially unlawful when it subse- quently renounces the unlawful object in favor of a lawful one, there is no presumption that the original object continues. Unlike Gazette Printing Conpanv, supra, relied on by my colleagues, where the union had engaged in recognitional picketing and resumed picketing for an allegedly different purpose after a hiatus of only 3 days, the circumstances of the present case present a rational explanation for the different purposes of the earlier and later picketing. See Waiters & Bartenders Local 500, et al. (Mission Valley Inn), 140 NLRB (1963). 1975 meeting did Jets directly inform Local 737 of the number and identity of the employees it would employ. or that it would not he employing 90 percent of the ARA employees." 1055 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I believe my colleagues are also in error in finding merit in the contention that "picketing... for the mass reinstatement of former ARA employees" had a recognitional objective because "the effect of the picketing if successful would be the reestablishment of Respondent's earlier majority status and would require Jets to recognize and bargain with Respon- dent." The purpose of the picketing, as clearly announced by Respondent, was to achieve reinstate- ment of the discharged employees. Respondent's picketing would have ceased if ARA, without recognizing or, indeed, exchanging a word with Respondent, had reinstated the discharged employ- ees. The picketing was obviously directed solely at obtaining reinstatement. Fanelli Ford Sales, Inc., 133 NLRB 1468 (1961). The fact that reinstatement might have additional consequences and eventually result in recognition of Respondent does not alter the purpose of the picketing. Section 8(b)(7)(C) does not prohibit picketing to protest the discharge of employees. Such picketing is entirely lawful and picketing for this lawful purpose cannot per se be rendered unlawful because, if successful, Respondent's prior majority might be reinstated. In Gazette, supra, the Board made clear that in finding a recognitional objective it did "not rely only on the Union's continued picketing for mass reinstatement which, if achieved, would imme- diately have given the Union majority status." The Board relied on other evidence, which is lacking here, of the continuation of its original recognitional picketing. The evidence in the present case, in fact, affirma- tively demonstrates that the picketing which began on October 24 did not have an immediate recogni- tional objective. Respondent had made known to Jets its willingness to settle the dispute by the establishment of a preferential hiring arrangement. Such an arrangement obviously would not reestab- lish the prior majority and completely undermines my colleagues' reliance on reestablishment of majori- ty status as the basis for finding a recognitional objective. On October 14, more than a week prior to the resumed picketing, Respondent's counsel indicat- ed to Jets' counsel a willingness to resolve their differences through the use of a preferential hiring list. My colleagues refuse to attach any significance to this October 14 proposal because Respondent's October 24 mailgram to Jets, which stated that the sole object of the picketing was to protest the discharge of the ARA employees, further stated that the "picketing will cease when those employees are hired by Jets." This mailgram in no way evidences a withdrawal of Respondent's previously expressed willingness to settle for a preferential hiring list. Obviously, Respondent would not be expected to recede from its initial position in the absence of movement toward a settlement. In addition, my colleagues overlook the letter of Respondent's counsel to Jets' counsel of November 4 which again clearly indicated that preferential hiring would be a solution. 3 Reliance on a request for reinstatement in these circumstances, as evidence of a recognitional objective, is unwarranted. Although Respondent does not make the claim, it is clear that its picketing was protected by the proviso to Section 8(b)(7)(C) which excludes from its scope "any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of. . . a labor organization." It has been stipulated that no deliveries to Jets were interrupted. It is apparent that the purpose of the picketing was to apply economic pressure by discouraging consumers (the other employees at the space center) from patronizing Jets' food service facilities. At the meeting of August 15, which was held when it was first discovered that most of the ARA employees were not being rehired, representatives of other unions at the space center were present, voiced their opposition to the way in which Jets was treating the former ARA employees, and stated they would boycott Jets' food service operation. Throughout the period of picketing commencing on August 18 and ending on October 2, Respondent distributed to members of the public, in conjunction with its picketing, handbills which urged them not to patronize the cafeterias. Similar handbilling accom- panied the October 24 picketing. Respondent's obvious purpose to appeal to the consumers at the space center because its members had been dis- charged by Jets is within the clear compass of the proviso and insulates Respondent from the finding of a violation even if its picketing be deemed recogni- tional. The complaint should be dismissed. '1 This letter demonstrates my colleagues' obvious error in relying on the Union's "rapid abandonment of its proposal to implement a preferential hiring list in lieu of mass reinstatement." There is nothing to indicate that the position made clear in its letter of November 4 was thereafter modified or abandoned. APPENDIX NOTICE To EMPLOYEES 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, or threaten to picket the Jets Services, Inc., food service facilities at the Kennedy Space Center, 1056 HOTEL, MOTEL, RESTAURANT EMPLOYEES Merritt Island, Florida, where an object thereof is to force or require Jets Services, Inc., to recognize and bargain with us as the representative of employees employed by Jets Services, Inc., at a time when we are not certified as such representa- tive and where such picketing has been conducted without a petition under Section 9(c) being filed within a reasonable period of time not to exceed 30 days from the commencement of such picket- ing. HOTEL, MOTEL, RESTAURANT EMPLOYEES AND BARTENDERS UNION, LOCAL 737, AFL-CIO 1057