Bartenders, Hotel, Restaurant Union, Local 36

National Labor Relations Board - Board Decisions

Mar 12, 1975

216 N.L.R.B. 980 (N.L.R.B. 1975)

980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bartenders, Hotel, Restaurant and Cafeteria Employ-
ees Union, Local 36, affiliated with Hotel and
Restaurant Employees and Bartenders Internation-
al Union, AFL-CIO and American Motor Inns,
d/b/a Holiday Inn Downtown . Case 5-CC-749
March 12, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On December 24, 1974, Administrative Law Judge
Benjamin B. Lipton issued the attached Decision in
this proceeding . Thereafter, Respondent filed excep-
tions and a supporting brief. The General Counsel
filed a brief in support of the Decision.
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 Respondent , Bartenders , Hotel,
Restaurant and Cafeteria Employees Union, Local
36, affiliated with Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, its
officers , agents, and representatives , shall take the
action set forth in the said recommended Order.
I Respondent contends that its actions herein cannot constitute threats,
restraint, or coercion of Fire Fighters within the meaning of Sec.
8(bX4XiiXB) of the Act because Fire Fighters is a labor organization. The
Administrative Law Judge found that Fire Fighters , not involved in this
case as a labor organization , is a "person" within the meaning of Sec.
8(bX4XuXB). That conclusion finds express support in Sec . 2(1) of the Act
which defines a "person" under the Act as including "labor organizations."
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON , Administrative Law Judge: This
case was heard on November 6, 1974,1 in Baltimore,
Maryland, with all parties present and participating, upon
a complaint of the General Counsel2 alleging that the
Respondent violated Section 8(bX4)(iiXB) of the National
Labor Relations Act, as amended.3 Briefs received from
the General Counsel, Respondent, and Charging Party
have been duly considered.
Upon the entire record, and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
I. JURISDICTION
American Motor Inns, d/b/a Holiday Inn Downtown,
herein called the Charging Party or Holiday Inn, is a
transient motel located in Baltimore , Maryland, where
more than 25 percent of the occupants stay less than 30
days . During the year preceding issuance of the complaint,
Holiday Inn had a direct inflow in interstate commerce of
materials valued in excess of $10,000 and had gross
revenues in excess of $500 ,000. It is admitted, and I find,
that Holiday Inn is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Baltimore Fire Fighters Local 734, International Associ-
ation of Fire Fighters, AFL-CIO, is herein called the Fire
Fighters. It is not involved hereih as a labor organization
under the Act. The complaint alleges, and I fmd on the
undisputed facts, that the Fire Fighters is a "person
engaged in commerce" within the meaning of Section
8(bx4)(ii)(B) and Section 2(6) and (7) of the Act .4
II. THE LABOR ORGANIZATION INVOLVED
Bartenders, Hotel, Restaurant and Cafeteria Employees
Union, Local 36, affiliated with Hotel and Restaurant
Employees and Bartenders International Union, AFL-
CIO, is herein called Respondent, or the Bartenders, or the
Union. It is a labor organization within the meaning of
Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Introductory Facts; The Parties Involved
In the pleadings , it is alleged and admitted that
Respondent has been . engaged in a labor dispute with
Holiday Inn. Officers of the Holiday Inn, and witnesses
herein, consist of Morgan Jul , vice president; Michael H.
Gerringer, sales manager for conventions , banquets, etc.;
I Hereinafter all dates are in 1974 unless otherwise specified.
2 Charges were filed on July 18 and served on July 19; complaint issued
on October 11.
3 Sec. 8 provides in pertinent part: "(b) It shall be an unfair labor
practice for a labor organization ... (4Xii) to threaten , coerce, or restrain
any person engaged in commerce ... where ... an object thereof is: (B)
forcing or requiring any person ... to cease doing business with any other
person, or forcing or requiring any other employer to recognize or bargain
with a labor organization as the representative of his employees unless such
labor organization has been certified as the representative of such
employees under the provisions of section 9: Provided That nothing
contained in this clause (B) shall be construed to make unlawful , where not
otherwise unlawful , any primary strike or primary picketing.... .
4 The Board takes into consideration for jurisdictional purposes not only
the operations of the primary employer, but also the operations of any
secondary employers or persons to the extent that they are affected by the
conduct involved . International Brotherhood of Teamsters, etc., Local No. 554
(McAllister Transfer, Inc.), 110 NLRB 1769, 1771 ( 1954).
216 NLRB No. 170
BARTENDERS, HOTEL, RESTAURANT UNION, LOCAL 36 981
and Charles Wall, innkeeper. Agents of Respondent
Bartenders for the purposes herein consist of Anthony
Glorioso, secretary-treasurer , and Howard R. Richardson,
international representative . Agents of the Fire Fighters,
and witnesses herein , consist of Edward C. Hechrotte,
president , and Ralph Malin, chairman of the Convention
Committee 1974. Baltimore Civic Center, herein called the
Civic Center, is a municipal agency under the statutory
control of the Mayor and City Council of the City of
Baltimore , Maryland . As apparent, it consists of a large
building and premises operated for the purposes, inter alia,
of conducting and licensing various public and private
functions . William McElroy, a witness , is superintendent of
operations of the Civic Center.
The materialfacts are uncontroverted Respondent called
no witnesses and independently adduced no evidence in its
defense.
B. Background, Representation Case
During the time of the pertinent events herein, the Board
was processing an election petitions by the Bartenders in a
unit of all employees of Holiday Inn in its housekeeping
department, excluding all other employees, office clericals,
guards, and supervisors . On March 15, 1974, an Adminis-
trative Law Judge decided in a consolidated proceeding
that the election should be set aside because of certain
conduct on the part of Holiday Inn which also violated
Section 8(axl). Thereafter, on July 31 , 1974, the Board
decided,6 contrary to the Administrative Law Judge, that
no violation or election interference was committed, and it
certified that the Union had lost the election.
C. The Undisputed Evidence
On March 25, the Fire Fighters contracted with the
Holiday Inn to cater its national convention banquet to be
held on August 22 at the Civic Center. It was anticipated
that about 2,100 persons would attend, including delegates
and officers of the Fire Fighters from all parts of the
United States and Canada, presidents and high officers of
other labor organizations , and certain well-known digni-
taries . Employees of the Holiday Inn would prepare the
food and beverages in the kitchen of the Civic Center, and
serve the guests at open bars and dinner tables . Inter alia,
the Fire Fighters would be responsible for providing
security personnel, setting tables and chairs , cleaning the
areas before and after the affair , and undertaking the
rental of the Civic Center, including maintenance and
building services . On May 27, Malin of the Fire Fighters
telephoned Gerringer of the Holiday Inn. Malin related
that he was approached by Glorioso of the Bartenders and
was told the following : 7 Since the Bartenders' labor
dispute with the Baltimore Hilton Hotel was now resolved,
the Hilton should get the Fire Fighters' banquet. If the Fire
Fighters did not reaward the contract to the Hilton and it
proceeded instead to use the contracted services of Holiday
Inn, the Bartenders would picket the affair at the Civic
5 The petition (Case 5-RC-8690) was filed August 27, 1973; on a
stipulation for certification , the election was conducted on October 11, 1973,
with results showing 15 votes cast for, and 18 votes against , the Union;
objections to the election were timely filed
Center. On June 20, Malin informed Gerringer by phone
that if the Bartenders picketed the banquet catered by
Holiday Inn, the Fire Fighters' "people" would not cross
the picket line. On May 31, at a meeting of the Fire
Fighters' convention steering committee, Glorioso stated
that there would possibly be action taken against the Fire
Fighters if it did not "go with a union house" in catering
the banquet. In view of Glorioso's position and his
agreement to submit a report to the committee on June 7, a
motion was passed to defer payment of a deposit of $1,000
then due under the Holiday Inn contract. About June 4, a
copy of the Holiday Inn contract requested by Glorioso
was delivered to him by Malin. On this occasion, Glorioso
expressed the possible action of the Bartenders in terms of
picketing the Civic Center.
On July 12, a meeting at the Holiday Inn was called by
the Fire Fighters for the purpose of attempting to resolve
the problem created by the intervention of the Bartenders.
In attendance were various representatives of Holiday Inn
and the Fire Fighters, as well as Richardson on behalf of
the Bartenders. Richardson stated that he had been sent in
to do the job of organizing in Baltimore for the food or
restaurant industry and "would do anything in his power
to make it unpleasant" for Holiday Inn; he is aware that
some things his union is committed to do "are not quite
above board." Among other things, he would go to every
union in Baltimore and make sure that Holiday Inn did not
get any of their (the unions') business in the future. He said
that the Hilton should get the banquet, because the
problems there had been resolved and "at this point" it had
good contract relations with the Bartenders. If Holiday Inn
caters the banquet, the Bartenders will picket the Civic
Center as well as the immediate premises of Holiday Inn
(about one block from the Civic Center). Fire Fighters
indicated it could not "afford" the picketing, its members
would not cross the picket lines, and consequently the
banquet would be a "flop." Richardson proposed that if
the Holiday Inn will sign a contract with the Bartenders
"to go union," it would resolve the dispute "right away."
Jul of Holiday Inn responded that it cannot be done
because the employees had an election and voted against
the Union. Commenting that "they got us between the rock
and the hard place," the Fire Fighters asked Holiday Inn
to cancel the catering contract. On the request of Holiday
Inn, the Fire Fighters agreed to send a letter explaining the
reasons it could not honor the contract. And the Bar-
tenders stated that it would also write a letter.
Directly following this meeting at the Holiday Inn,
representatives of the Fire Fighters and Bartenders met
with officials of the Hilton at that hotel and negotiated
with the Hilton to cater the Fire Fighters' banquet on
August 22 at the Civic Center. The Bartenders reiterated
the threat to picket if Holiday Inn were to service the
banquet, and the Fire Fighters asserted again that it could
not afford the picket line. Pursuant to its request made at
this meeting, the Fire Fighters subsequently received from
the Bartenders a letter containing an agreement to hold
6 American Motor Inns d/bla Holiday Inn Downtown, 212 NLRB 704
(1974).
7 Admitted on testimony of Derringer to show the timing and initial
information received by the Holiday Inn. Malin testified at a later point.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
harmless and indemnify the Fire Fighters from any
actions, legal or otherwise . On July 18, the Hilton sent a
prepared contract to the Fire Fighters , which was subse-
quently executed. The cost to the Fire Fighters was
substantially higher than that provided in the Holiday Inn
contract.
Dated July 15, a letter was sent to the Fire Fighters by
Glorioso stating the Union's position, as follows:
First, our union has members who are capable and
willing to cater your affair. Second, their employer [i.e.,
the Hilton ], with whom we have a good contractual
relationship , would be happy to serve you and would
do so as well as any other establishment ; third, we have
an obligation to try and secure work for our members;
fourth, we have a moral obligation to try and persuade
organized labor and our friends to use 'union facilities'
where possible as opposed to 'non -union facilities', and
finally, as a member of the Trades Union Family, you
have an obligation to use 'union facilities' where
possible.
Therefore, should you decide to have Holiday Inn
cater your banquet we will establish informational
picket lines around the place of your affair in order to
inform your delegates, and the general public of the
issue involved. Further , we will establish informational
picket lines at the Holiday Inn catering the affair to
inform your arriving Delegates . We would also take
whatever other steps we deem appropriate to publicize
this matter.
On July 19, the Fire Fighters delivered a letter to Holiday
Inn, attaching a copy of the above communication. Fire
Fighters' letter states in part:
it is obvious from the stand taken by Local 36,
both at our conference and by the enclosed letter, that
embarrassment and misery would inure to both, your
organization and ours, should either of us insist upon
your service at the Banquet . Picket lines at the Civic
Center would embarrass us, and picket lines around the
local Holiday Inns would deprive you of guests
attending the Convention. This, we feel, neither can
afford.
Consequently . . . we respectively request your
concurrence in the mutual cancellation of the March,
1974, contract between your organization and ours for
the rendition of your services at our Convention
Banquet... .
On July 29, Holiday Inn responded to the Fire Fighters:
We are writing to confirm our statement to you on July
22 to the effect that we have made arrangements with
several of our purveyors and purchased additional
equipment in anticipation of your convention banquet.
Holiday Inn is fully prepared to cater your banquet in
accordance with the terms and conditions of the
aforementioned contract . We cannot agree to your
request for a mutual cancellation of the contract and
we reiterate our request that you forward the required
deposit of $1000.00 as per our agreement.
By letter on July 31, the Fire Fighters notified Holiday Inn
that it was unilaterally canceling the contract. On August
22, the Fire Fighters' convention banquet took place at the
Civic Center, with the Hilton as caterer. The contract with
Holiday Inn was not rescinded.
Apart from the vague reference in its July 15 letter to
"informational" picketing, there was no indication in the
various threats by the Bartenders as to how its picket signs
would read or how the picketing would be conducted in the
event Holiday Inn catered the affair. Theretofore, on
January 1, the Fire Fighters had executed a standard type
of permit agreement with the Civic Center, which was
implemented in the holding of the banquet catered by the
Hilton on August 22. Among other things, the agreement
indicates that other events at the Civic Center may take
place at the same time ; that the Civic Center provides
porters, matrons, and (at the permittee's request and
expense) other employees , e.g., ushers and doormen; that
the Civic Center furnishes maintenance services, e.g., air-
conditioning, ventilation, lighting, cleaning, and the public
address system ; and that an "official decorator" designated
by the Civic Center has exclusive decoration rights, which
includes the hiring of labor at the permittee 's expense.
Conclusions
The various and repeated threats by the Bartenders to
engage in simultaneous picketing of the Civic Center and
of Holiday Inn in the event that the Fire Fighters persisted
in utilizing the services of Holiday Inn to cater the
convention banquet were unmistakably clear and had the
intended effect of compelling the Fire Fighters to dishonor
its contract with Holiday Inn, a nonunion facility, and
instead to contract with the Hilton, a union facility, for the
performance of the same services . All concerned could
reasonably, anticipate that the picketing of the Civic Center
and premises of Holiday Inn would cause at least some
officers, members, and guests of the Fire Fighters to refuse
to cross the picket lines and thus create an unacceptable
condition for the Fire Fighters . The Bartenders thereby
sought to and did achieve its desired result without the
need to engage in picketing . It is thoroughly evident, and
accordingly found, that by such conduct the Bartenders
threatened and coerced the Fire Fighters, a "person
engaged in commerce," supra, for the purposes of Section
8(bx4Xii). Respondent's contention in its brief is rejected
as entirely unsupported-that its actions , even if viewed as
having an unlawful objective, cannot constitute "threats,
restrain or coercion" within (ii)(B), since its "promise to
picket" was "directed to another labor organization which
has no employees," and this labor organization , the Fire
Fighters, merely "acceded to the pressure brought by
Respondent because of the feeling of its leadership that the
members . . . would voluntarily respect a picket line
BARTENDERS, HOTEL, RESTAURANT UNION, LOCAL 36 983
established by Respondent." 8
Under the complaint , General Counsel alleges in
substance that the Bartenders threatened and coerced the
Fire Fighters , a neutral person, with an object to force or
require the Fire Fighters to cease doing business with
Holiday Inn in order to force or require Holiday Inn to
recognize or bargain with the uncertified Bartenders as
representative of Holiday Inn's employees. Respondent
contends that it was engaged in a primary dispute with
Holiday Inn based on its election objections, its claim of
recognition , and independent unfair labor practices by
Holiday Inn . The complaint allegation that the Bartenders
was engaged in a labor dispute with Holiday Inn serves to
identify Holiday Inn as the primary employer within the
issue of the 8(bX4XB) relationship . It is well to examine the
true nature of the labor dispute in assessing the Bartender's
objectives. During the period of the Bartender's repeated
threats to picket the Fire Fighters' banquet, the election
proceeding was being processed by the Board to determine
the merits of the Bartenders' objections .9 On July 31,
before the scheduled banquet , the Board dismissed the
alleged violation and the objections, and it certified that
the Bartenders had lost the election . Consequently, it is
clearly shown that, despite its own pending representation
petition, the Bartenders undertook coercive action for the
purpose of forcing Holiday Inn to recognize the Bar-
tenders, notwithstanding it was a minority union.10 While
the Bartenders was exerting pressures against the Fire
Fighters , Holiday Inn, as a nonunion house, was conduct-
ing its normal business , e.g., servicing various functions,
with its staff' of unit employees . Yet, apart from the
incidents relating to the Fire Fighters' banquet, the
Bartenders undertook no picketing , threats, or other
activity directed against Holiday Inn for the purpose of
compelling ,recognition as the employees' representative. It
is noteworthy that , before Holiday Inn was apprised of any
dispute apart from the election proceeding, the Bartenders
commenced its coercive overtures directly with the Fire
Fighters . At this time, the Bartenders advised the Fire
Fighters that it had just resolved its recognition dispute
with the Hilton . And it demanded, in conjunction with
threats to picket the banquet , that the Fire Fighters revoke
its catering contract with Holiday Inn and award it to the
Hilton, which was now available as a union house. The
threats to picket the premises of Holiday Inn concurrently
with the picketing of the banquet at the Civic Center were
more clearly intended to put additional pressure on the
Fire Fighters by embarrassing the members and guests of
the Fire Fighters who were staying at the Inn, rather than
to engage in the traditional mode of picketing by
publicizing the Bartenders' dispute with the Holiday Inn
itself. Later, at the July 12 meeting held at the Holiday Inn,
the Bartenders' proposal was made and rejected that
Holiday Inn extend immediate recognition to the Bar-
tenders as a means of averting the threat of picketing the
banquet. Within this context, it reasonably appears that the
Bartenders had a purpose of rewarding and assisting the
Hilton. Also at the July 12 meeting, the Bartenders
revealed that it was committed to exploit tactics which
were "not quite above board" in its current broad-based
drive to organize the restaurant industry in Baltimore. The
Fire Fighters ultimately succumbed to the Bartenders'
demands, after it requested and obtained from the
Bartenders an indemnification agreement to save it
harmless from the effects of its breach of the Holiday Inn
contract.
In the particular circumstances of this case , Respondent
cannot sustain the position that its threats to picket were
no more than statements that lawful primary activity
would be carried out-at the premises of Holiday Inn, with
whom it had a primary dispute, and at the Civic Center,
which would merely have constituted an ambulatory situs
of Holiday Inn.
Sections 7 and 13 and the proviso to Section 8(b)(4)(B)
safeguard strikes between the primary parties to a labor
dispute, while Section 8(bX4) restricts a union in the use of
economic pressure where it has an object of forcing an
employer or other person to boycott someone else.11 These
are the "dual congressional objectives" which it is the
Board's duty to balance .12 Each secondary boycott case
must be considered in the light of its surrounding
circumstances.13
In the Rice Milling case,14 the union encouraged the
employees of a neutral customer not to cross the union's
picket line at the primary employer's premises . The Court
held that the picketing directed at the primary employees
and their employer was in a manner traditional in labor
disputes, and was not proscribed by Section 8(bX4). It
pointed out, however, that there were no inducements or
encouragements applied elsewhere than on the picket
line.15 In Electrical Workers v. N.LR.B., 16 the Supreme
Court expressly approved the Board's early interpretation
of Section 8(b)(4), quoting the Board:
It was the objective of the unions' secondary activities
... and not the quality of the means employed to
accomplish that objective, which was the dominant
factor motivating Congress in enacting that provi-
sion.17
a Cf., e.g., Local 38, International Brotherhood of Electrical Workers,
AFL-CIO (Robert R Cutler, d/b/a Bob Cutler Signs), 155 NLRB 1147, 1150
(1%5).
Y Thus, a real question concerning representation then existed . Telauto-
graph Corporation, 199 NLRB 892 (1972).
10 Such conduct is not alleged herein as a separate violation and is not so
considered.
11 N. L. R.B. v. Denver Building & Construction Trades Council [Gould &
Prelsner], 341 U.S . 675, 687 (1951).
12 Id at 692 ; International Brotherhood of Electrical Workers, Local 441,
AFL-CIO (Suburban Development Co.), 158 NLRB 549,551 (1966).
13 International Rice Milling Company, Inc. v. N.LR.B., 341 U.S. 665, 670
(1951).
14 Ibid
' See also Oil Workers International Union, Local Union 346 (CIO), (The
Pure Oil Company), 84 NLRB 315, 318, 319, in. 7 (1949), where the union's
conduct and appeals were held permissible in that they were limited to
action at the primary employer's premises at which the union was engaged
in a strike and "accompanying picketing."
16 International Brotherhood of Electrical Workers, Local 501, et al., v.
N.LRB., 341 U.S. 694 (1951).
17 Id at 704. And see Local 761, international Union of Electrical, Radio
& Machine Workers, AFL-CIO [General Electric Company] v. N.LRB., 366
U.S. 667,673 (1%1 ), in which the Court placed an enlarged emphasis on the
"means" as revelatory of the unlawful object.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, as applied to Section 8(b)(4)(iiXB) of the Act,18 the
dominant consideration for determining a violation is
whether the union's coercive conduct has as "an object"
the encompassing of neutral persons in the union's dispute
with the primary employer.
In the instant case, wholly apart from the common situs
issue, it is clearly evident that the Bartenders' conduct was
not limited to action at the threatened picket lines.
Specifically, the Bartenders coercively insisted, with suc-
cess , that the Fire Fighters breach its contract with
Holiday Inn, a nonunion house, and enter into a new
contract with the recently unionized Hilton for catering the
convention banquet.19
As earlier noted, Bartenders concedes in its arguments
that the Civic Center would have constituted an ambulato-
ry (or common) situs,20 an issue which it resisted at the
hearing . The threatened picketing at the Civic Center,
away from Holiday Inn's main place of business, was to be
conducted while the Fire Fighters' banquet was being
serviced, inter alia, by Holiday Inn and the Civic Center.
Since each of the latter entities is distinctly a "person"
within Section 8(b)(4),21 such evidence sufficiently indi-
cates , in my opinion, that the picketed premises at the
Civic Center would have been a common situs . However, it
is amply shown that, pursuant to existing contracts,
employees and individuals employed by Holiday Inn and
the Civic Center would have been engaged in services at
the same situs during the preparation and the holding of
the banquet.22 In addition, the Fire Fighters, as a separate
"person ," with its officers, members, and guests , would be
present during the picketing of the banquet, as would be
certain employees of the Fire Fighters necessary for it to
fulfill the terms of its contracts with Holiday Inn and the
Civic Center. Thus, there is ample support for the General
Counsel's position that the picketed premises at t)ie Civic
Center would constitute a common situs.
Under the Moore Dry Dock doctrine,23 certain estab-
is As amended in 1959.
ms See , e.g., Laundry, Dry Cleaning, Industrial, Linen Supply, etc., Local
209, International Brotherhood of Teamsters, etc. (East Bay Counties Dry
Cleaners Association), 167 NLRB 45, 51 (1967).
20 An ambulatory situs and a common situs are the same for purposes of
the Moore Dry Dock standards, infra. See Freight, Construction, General
Drivers, etc. Local 287, International Brotherhood of Teamsters, etc (Buck's
Butane-Propane Service, Inc.), 186 NLRB 187, 188 (1970).
si E.g., Plumbers, Steamfitters, etc., of Local 298, A.F. of L, v. County of
Door a Municipal Corporation, 359 U.S. 354, 357-359 (1959); Local 363,
International Brotherhood of Electrical Workers, AFL-CIO (Whitman
Electric Incorporated), 201 NLRB 875, 878 (1973).
22 It is clear from the Fire Fighters ' contracts with Holiday Inn and Civic
Center, as well as from testimony of the actual conduct of the banquet by
the Hilton on August 22, that the Civic Center and the Fire Fighters would
have been the employers of various employees . At the hearing, an offer of
proof was taken (in question and answer form through the testimony of
Superintendent of Operations McElroy ) to show the number of employees
in different categories employed during the August 22 banquet by the Fire
Fighters (e.g., musicians, stagehands, guards) and the Civic Center (e.g.,
porters and maintenance). The offer was rejected , with a reservation to
restudy, on the essential basis that the complaint does not allege pressure by
the Bartenders on any person other than the Fire Fighters. While I consider
McElroy's proffered testimony largely redundant , and to some extent
hearsay, on the question of the existence of a common situs , I will accept it
into evidence strictly for such purpose and not to show any violation not
specifically alleged in the complaint.
23 Sailors Union of the Pacific (Moore Dry Dock Company), 92 NLRB 547
(1950).
lished criteria are utilized as a guide in determining
whether picketing of a primary employer at a common
sittts is violative of Section 8(b)(4)(B).24 These criteria are
applied as to require that "the picketing be so conducted as
to minimize its impact on neutral employees [and persons]
insofar as this can be done without substantial impairment of
the effecilveness of the picketing in reaching the primary
employees.25 A union's failure to adhere to any one of the
Moore Dry Dock standards usually results in a finding that
the picketing has an unlawful secondary objective. And a
union's compliance with these standards creates only a
presumption of legality which may be rebutted by other
relevant evidence disclosing that the true objective of the
picketing was the enmeshment of neutrals.26
Where the union's conduct consists of threats to picket at
a common situs, rather than actual picketing, it is true that
there is no specific standard enunciated by the Board
requiring the union to indicate that its picketing will
comply with the Moore Dry Dock criteria. However, in
common situs situations , a union threatening to picket is
not intended to be placed in a status superior to that of a
union which engages in picketing insofar as the general
statutory test applies in determining whether the union's
conduct had an unlawful object of enmeshing neutrals. All
the surrounding circumstances are considered in applying
this crucial test . Here , the Bartenders threatened to
condi}pt "informational" picketing at the Civic Center, or
the banquet, or the "affair." There was not, in my opinion,
even minimal assurance that the impact of the threatened
picketing on neutral employees and persons would be
minimized to any extent 27 Even assuming that the
Bartenders had clarified its threats reasonably to conform
with the purposes of Moore Dry Dock, there is clear
independent evidence disclosing that at least one substan-
tial objective in making the threats was to enmesh the Fire
Fighters , as a neutral person.28 As previously shown,
without any actual picketing or strike, the Bartenders
24 (1) At the time of the picketing the primary employer is engaged in its
normal business at the situs ; (2) the picketing discloses clearly that the
dlspu;e is with the primary employer; (3) the picketing is limited to places
reasonably close to the location of the situs; and (4 ) the picketing is strictly
limited to times when the situs of the dispute is located on the secondary
employer's premises.
75 Retall Fruit & Vegetable Clerks' Union, Local 1017, and Retail Grocery
Clerks ' Union, Local 648, Retail Clerks International Association, AFL-CIO
(Crystal Palace Market), 116 NLRB 856, 859 ( 1956); International
Brotherhood of Electrical Workers, Local 441, AFL-CIO (Suburban Develop-
ment Corporation), 158 NLRB 549, 552 (1966).
26 E.g., International Brotherhood of Electrical Workers, Local Union No.
11, AFL-CIO, et al. (L G. Electric Contractors, Inc.), 154 NLRB 766 (1965);
General Teamster, Warehouse and Dairy Employees Union Local No. 126,
International Brotherhood of Teamsters, etc., et al. (Ready Mixed Concrete,
Inc.), 200 NLRB 253 (1972); United Brotherhood of Carpenters and Joiners of
America, Local 690 (R. L Moore Construction Company, Inc.), 190 NLRB
609 (1971 ); Local No. 441, International Brotherhood of Electrical Workers,
AFL-CIO (Rollins Communications, Inc.), 208 NLRB 943 (1974); N.L.R.B.
v. International Hod Carriers, Building and Common Laborers ' Union of
America, Local 1140, AFL-CIO [Gilmore Construction Corp.], 285 F.2d 397,
40002 (C.A. 8, 1960), cert . denied 366 U.S. 903.
27 See, e.g., United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Local No. 639 (American Modulars Corporation), 203 NLRB 1112
(1973); Truck Drivers, Helpers & Dockmen Local Union No. 375, a/w
International Brotherhood of Teamster., etc. (Womeldorf Inc.), 182 NLRB
650, 655 (1970); and cf. Truck Drivers & Helpers Local Union No. 592, etc.
(Estes Express Lines, Inc.), 181 NLRB 790, 791 (1970).
24 See fn. 26, supra.
BARTENDERS , HOTEL, RESTAURANT UNION, LOCAL 36
coercively demanded that the Fire Fighters abrogate its
contract with the Holiday Inn, and execute instead a
contract with the Hilton . Such evidence , in the present
context , concretely establishes a direct cease doing busi-
ness object within Section 8(bX4XiiXB) .29 Moreover, the
Bartenders ' threatened picketing of the Civic Center was
not an extension of an existing or even a contemplated
strike against Holiday Inn 3o Rather , it is plain that all its
threats to picket were narrowly confined to the timing of
the Fire Fighters ' banquet over the course of one day.
During the substantial periods before and after the Fire
Fighters' banquet , the Bartenders did not display any
intention of pursuing its purported dispute with Holiday
Inn by picketing or other means at the premises of Holiday
Inn.31 Additionally, as I find , the Bartenders ' threats to
picket the premises of Holiday Inn simultaneously with the
Civic Center were not meant to publicize any dispute with
Holiday Inn but to embarrass the members and guests of
the Fire Fighters who were housed at Holiday Inn.32 These
factors, and the evidence generally, show an unusually
direct secondary object by the Bartenders of embroiling
the Fire Fighters in the threatened picketing at the Civic
Center as well as at the sites of Holiday Inn.
Accordingly , upon the particular facts in this case, and
the entire record , I find that Respondent violated Section
8(b)(4)(ii)(B) of the Act , as alleged.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Holiday Inn is an employer engaged in commerce
within the meaning of Sections 2(6) and (7) and 8(b)(4) of
the Act. Fire Fighters is a person engaged in commerce
within the meaning of Sections 2(6) and (7) and
8(b)(4XiiXB) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening , coercing, and restraining the Fire
Fighters, with an object to force or require the Fire
Fighters to cease doing business with Holiday Inn in order
to force or require Holiday Inn to recognize or bargain
with Respondent as the representative of its employees,
although Respondent has not been certified as the
representative of such employees , Respondent has engaged
in unfair labor practices within the meaning of Section
8(bX4Xii)(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 above findings of fact, conclusions of law, and
the entire record in the case , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER33
985
Respondent, Bartenders, Hotel, Restaurant and Cafete-
ria Employees Union, Local 36, affiliated with Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO, of Baltimore, Maryland, its officers,
agents, and representatives, shall:
1. Cease and desist from threatening, coercing, or
restraining the Fire Fighters, or ally other person engaged
in commerce or in an industry affecting commerce, where
the object thereof is to force or require the Fire Fighters to
cease doing business with Holiday Inn, or to force or
require the Holiday Inn to recognize or bargain with the
Bartenders as the representative of its employees without
the Bartenders having been certified as the representative
of such employees.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Post at Respondent's business office, meeting halls,
and all places where notices to members are customarily
posted, copies of the attached notice marked
"Appendix." 34 Copies of said notice , on forms provided by
the Regional Director for Region 5, after being duly signed
by Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days. Reasonable steps
shall be taken by Respondent to ensure that said notice is
not altered, defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the
aforesaid Regional Director for forwarding to Holiday Inn
and the Fire Fighters and, if they are willing, for posting by
Holiday Inn and the Fire Fighters in all locations where
notices to employees or members are customarily posted.
(c) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
29 E.g., Local 2669, etc., United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (T & D Roofing Co., Inc.), 173 NLRB 1232, 1235 (1968);
International Brotherhood of Electrical Workers, AFL-CIO, Local 453 (Delp
Refrigeration), 170 NLRB 415 ( 1968), particularly fn. 3 stating Member
Fanning's concurrence.
30 Cf. Local 25, National Association of Broadcast Employees & Techni-
cians, AFL-CIO-CLC (Taft Broadcasting Company, Inc), 194 NLRB 162,
165-166 (1971).
31 Cf. N.L.R.B. v. Associated Musicians, Local 802, AFB. [Gotham
Broadcasting Corp.], 226 F 2d 900, 906 (C.A. 2, 1955); General Teamster,
Warehouse and Dairy Employees Union Local No. 126, International
Brotherhood of Teamsters, etc. (Ready Mixed Concrete, Inc ), 200 NLRB 253,
255-256(1972).
32 Cf., e.g., American Guild of Variety Artists, AFL-CIO (Harrah's Club),
176 NLRB 580,581 ( 1969).
33 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 , and recommended Order herein shall, as provided in Sec.
102.4$ 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.
34 In the event that the Board 's 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."
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten , coerce, or restrain Baltimore
Fire Fighters Local 734, International Association of
Fire Fighters, AFL-CIO, or any other person engaged
in commerce or in an industry affecting commerce,
where an object thereof is to force or require the said
Fire Fighters to cease doing business with Holiday Inn
Downtown, or to force or require Holiday Inn
Downtown to recognize or bargain with our Union as
the representative of the employees of Holiday, Inn
Downtown without our Union having been certified as
the representative of such employees.
BARTENDERS, HOTEL,
RESTAURANT AND
CAFETERIA EMPLOYEES
UNION, LocAL 36,
AFFILIATED WITH HOTEL
AND RESTAURANT
EMPLOYEES AND
BARTENDERS INTERNATIONAL
UNION, AFL-CIO