Bartenders, Local 36

National Labor Relations Board - Board Decisions

Feb 11, 1976

222 N.L.R.B. 821 (N.L.R.B. 1976)

BARTENDERS, LOCAL 36 821
Bartenders, Hotel, Restaurant and Cafeteria Employ-
ees Union Local 36, affiliated with Hotel and Res-
taurant Employees and Bartenders International
Union, AFL-CIO and Action One,, Inc. Case
5-CP-103
February 11, 1976
DECISION AND ORDER
-By MEMBERS FANNING, JENKINS, AND PENELLO
On October 15, 1975, Administrative Law Judge
Platonia P. Kirkwood issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief and General Counsel
filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached 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 her recommended Order, as modified herein.
The Administrative Law Judge found that
Respondent's picketing had as an objective, if not the
sole objective, forcing and requiring the Employer to
capitulate to its demand for bargaining and recogni-
tion, that such picketing followed the holding of a
valid election on June 16, and that Respondent vio-
lated Section 8(b)(7)(B) of the Act.
While we agree with the Administrative Law
Judge's finding that Respondent violated Section
8(b)(7)(B), we find that such violation occurred on
and after June 24, 1975, the date on which the Re-
gional Director issued a Certification of Results of
Election certifying that a majority of votes had been
cast against union representation and that Respon-
dent was not the collective-bargaining representative
of Action One employees at its cafeteria facility at
the State Office Building in Baltimore, Maryland.'
Additionally, we find that, as contended by Re-
spondent, it ceased picketing on July 22, 1975, the
date on which Respondent's picketing was enjoined
by the United States District Court for the District of
Maryland, and that there has been no picketing since
that date.
In view of the foregoing, we find that
Respondent's unlawful picketing occurred on and af-
ter June 24, 1975, the date the Regional Director is-
1 Retail Store Employees' Union Local No 692, Retail Clerks International
Association, AFL-CIO (Irvin, Inc.), 134 NLRB 686 (1961)
sued a Certification of Results of Election, and that
Respondent's picketing ceased on July 22, 1975, the
date on which such picketing was enjoined by the
United States District Court for the District of Mary-
land. Accordingly, the Conclusions of Law have
been revised and amended to reflect the above find-
ings.
AMENDED CONCLUSIONS OF LAw
Delete Conclusion of Law 3 and substitute the fol-
lowing:
"3. By picketing Action One, Inc., at its cafeteria
facility in the State Office Building in Baltimore,
Maryland, after the conduct of a valid election under
Section 9(c) and the Regional Director's issuance of
a Certification of Results of Election on June 24,
1975, certifying that Respondent was not the collec-
tive-bargaining representative at such location, with
the object of forcing or requiring Action One, Inc., to
recognize and bargain as a collective-bargaining rep-
resentative of employees or prospective employees of
Action One, Inc., Respondent has engaged in an un-
fair labor practice proscribed by Section 8(b)(7)(B) of
the Act."
REMEDY
Respondent's unlawful picketing occurred subse-
quent to Action One's refusal to hire the
predecessor's employees and its refusal to recognize
and sign a contract with Respondent. Respondent
contends that the cease-and-desist order and posting
of notice requirement proposed by the Administra-
tive Law Judge goes beyond any unfair labor prac-
tice that may have been committed and that the
cease-and-desist order and posting of notice require-
ment proposed by the Administrative Law Judge
must be restricted to Action One, Inc., at its cafeteria
location in the State Office Building in Baltimore,
Maryland. We agree. The record shows that, al-
though Action One, Inc., operates other cafeteria fa-
cilities in the Baltimore, Maryland, area,
Respondent's unlawful picketing was confined solely
to the cafeteria facility operated by Action One, Inc.,
in the State Office Building in Baltimore, Maryland.
As it has not been established in the circumstances of
this case that Respondent has engaged in unlawful
picketing at Action One's other locations- or demon-
strated a proclivity to disregard the requirements of
the Act, we conclude that a broad order is not appro-
priate herein and we shall modify the recommenda-
tions in these respects.
222 NLRB No. 118
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified,
and hereby orders that the Respondent, Bartenders,
Hotel, Restaurant and Cafeteria Employees Union
Local 36, affiliated with Hotel and Restaurant Em-
ployees and Bartenders International Union, AFL-
CIO, Baltimore, Maryland, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order, as modified below:
1. Substitute the following for paragraph 1(a):
"(a) Picketing or causing to be picketed, or threat-
ening to picket, Action One, Inc., at the Company's
cafeteria facility at the State Office Building in Balti-
more, Maryland, where an object thereof is to force
or require Action One, Inc., to recognize and bargain
with it as the employees' representative or to force or
require the employees of Action One, Inc., to accept
or select it as their bargaining representative, for a
period of 1 year from July 22, 1975."
2. Substitute the following for paragraph 1(b):
"(b) Picketing, or causing to be picketed, or
threatening to picket Action One, Inc., at the
Company's cafeteria facility at the State Office
Building in Baltimore, Maryland, for either of the
aforementioned objectives, where, within the preced-
ing 12 months, a valid election under Section 9(c) of
the Act has been conducted which the Respondent
did not win."
3. Substitute the following for paragraph 2(b):
"(b) Sign as aforesaid and mail sufficient copies of
this notice to the Regional Director for Region 5 for
posting, Action One, Inc., willing, at the Company's
cafeteria facility at the State Office Building in Balti-
more, Maryland, where notices to employees are cus-
tomarily posted."
4. Substitute the attached notice for that of the
Administrative Law Judge.
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, Action, One, Inc., at the
Company's cafeteria facility at the State Office
Building in Baltimore, Maryland, where an ob-
ject thereof is to force or require Action One,
Inc., at the Company's cafeteria facility at the
State Office Building in Baltimore, Maryland, to
recognize or bargain collectively with -us or to
force or require its employees to accept or select
us as their collective-bargaining representative,
for a period of 1 year from July 22, 1975.
WE WILL NOT picket or cause to be picketed,
Action One, Inc., at the Company's cafeteria fa-
cility at the State Office Building in Baltimore,
Maryland, where an object thereof is to force or
require Action One, Inc., to recognize or bargain
collectively with us or to force or require its em-
ployees to accept or select us as their collective-
bargaining representative, where a valid election
which we did not win has been conducted by the
National Labor Relations Board among the em-
ployees of Action One, Inc., at the Company's
cafeteria facility at the State Office Building in
Baltimore, Maryland, within the preceding 12
months.
BARTENDERS, HOTEL, RESTAURANT AND
CAFETERIA EMPLOYEES UNION LOCAL 36,
AFFILIATED WITH HOTEL AND RESTAURANT
EMPLOYEES AND BARTENDERS
INTERNATIONAL UNION, AFL-CIO
DECISION
STATEMENT OF THE CASE
PLATONIA P. KIRKWOOD, Administrative Law Judge: This
matter was heard at Baltimore, Maryland, on August 18,
1975. The complaint was issued on July 15, 1975, pursuant
to a charge filed by the Action One, Inc., Charging Party
(herein called the Company or Action One), on June 25,
1975. The complaint alleges that Respondent violated Sec-
tion 8(b)(7)(B) of the Act by engaging in recognitional
picketing of the Company's cafeteria facility at the State
Office Building in Baltimore, Maryland, within 12 months
after the Company's employees at that facility had rejected
representation by Respondent in a valid Board election.
Respondent admits engaging in picketing activity attribut-
ed to it by the complaint but denies that its activity was
conducted in violation of Section 8(b)(7)(B) of the Act.
Upon the entire record in this case including my obser-
vation of the witnesses and after due consideration- of the
briefs filed by the Respondent and the General Counsel, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, a Maryland corporation, is engaged in
the food management service business. During the preced-
ing 12 months, it operated a number of cafeterias in the
State of Maryland, one of which is the cafeteria which
services the State Office Building complex located at 301
BARTENDERS , LOCAL 36
W. Preston Street in Baltimore. During the preceding 12
months the Company had gross sales in excess of $500,000
and received from out-of-State points goods and materials
valued in excess of $50,000. I find, as Respondent admits,
that the Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that the
facts set out above are sufficient to warrant the Board's
assertion of- jurisdiction under current standards.
II. CHRONOLOGICAL STATEMENT OF RELEVANT EVENTS
In early May 1975,1 the Company bid upon and was
awarded by the State of Maryland a contract to operate the
cafeteria in the State Office Building, supra, for a 1-year
period or longer to commence on or about June 1. At the
time -of this award, the cafeteria Mark IV Management
Services, Inc. (hereafter Mark IV), and the employees there
engaged were represented by Respondent under a collec-
tive-bargaining agreement with Mark IV. Ralph Kloetzh,
the president of the Company, was apparently advised of
the existence of this bargaining relationship by one Evans,
the superintendent of the State Office Building. In a con-
versation on the subject, Kloetzh told Evans that he did
not intend to hire any of the employees then engaged by
Mark IV and that he would operate as a nonunion employ-
er. Evans repeated the substance of this conversation to
Glorioso, the Respondent's business agent.
On May 15, Glorioso sent a letter to Kloetzli, which
stated, in relevant part, that Respondent had a collective-
bargaining agreement covering the facility here involved;
that the employees presently operating, at those facilities
were members of the Respondent; and that all such em-
ployees were willing to continue to work in the estab-
lishment after the Company assumed the operation. The
letter further requested that Kloetzli meet with the Respon-
dent in order that "both parties may enter into a memoran-
dum of agreement and to negotiate a new agreement."
Kloetzli then called Glorioso and arranged to meet with
him for lunch on May 21. Glorioso's account of that lun-
cheon meeting indicates the following: Glorioso informed
Kloetzli that Evans had told him Kloetzli did not intend to
hire any of the currently employed personnel but, rather,
that he, Kloetzli, "was going to put an ad in the paper." 2
Kloetzh did not expressly deny to Glorioso either that he
had made such statements to Evans or that the same did
not represent his current position on the matter. Kloetzli
did tell Glorioso, however, that he did not want to operate
under a union contract and he asked Glorioso whether he
"had to" do so and whether he "could operate without a
union contract." Glorioso replied "that it was not advisa-
ble to do so because the Union contract contains . . . the
machinery to eliminate any strikes or any differences that
might come up . . . and kind of handcuffs the Union from
picketing at any time that they will." He also pointed out
that the Respondent had contracts for a number of facili-
ties in the vicinity; that it had "experienced employees
available for such operations"; and that the union-employ-
1 Unless otherwise stated , all dates hereafter set out are for the year 1975.
2 There is no evidence of any such newspaper advertisement by the Com-
pany for new employees at any date here material
823
er relationships in those operations had been harmonious
ones. Kloetzli asked Glorioso to mail him a copy of the
contract.3 Glorioso promised to do so and assured Kloetzli
that he was "not to worry" about the contract proposals
because there would be a "chance to rebargain the con-
tract" and take care of "whatever differences" there might
be.4 Glorioso mailed a copy of the contract proposals to
Kloetzli on the same day.
On May 27, having heard nothing more from Kloetzli on
the matter, Glorioso telephoned Kloetzli at his office.
Kloetzli was not there at the time. Glorioso left a message
requesting that Kloetzli call him back and that it was im-
portant for Kloetzli to do so as Glonoso needed to notify
the employees the Respondent represented to come to
work when the Company took over. Kloetzli did not return
Glorioso's call until the evening of May 28. When he did
so, he advised Glorioso that he was not going to hire any of
his predecessor's employees and that he would not recog-
nize Respondent nor honor its request for a bargaining
contract. Glorioso then told Kloetzli, inter alia, that "he
knew what he had to do," and that "one of the things he
had to do was to notify the employees they would not be
hired."
On Saturday, May 29, Glonoso, so he testified, assem-
bled the picket signs, and handbills below described and
made other preparations to picket the company facility at
the State Office Building.
The Company began operating the cafeteria facility on
Monday morning, June 2.5 As previously arranged, Glorio-
so met with 10 of the 14 individuals who had been em-
ployed at the cafeteria by Mark IV, distributed to them the
picket signs and handbills, and instructed them to,patrol
along three sides of the State Office Building where cus-
tomer entrances were located and where, also, on one side,
there was located a dock for the delivery of supplies.6 The
picketing was conducted for the entire day of June'2, and
thereafter only between 7:30 and 9:30 in the morning, and
between 11:30 and 1:30 in the afternoon. Admittedly, Glo-
rioso and/or another business agent for Respondent ap-
peared at the site for "most" of each day. Except for that
change in hours, there was no change in the manner in
which the picketing was conducted 7 throughout its dura-
3 Kloetzh's testimonial version of the luncheon conversation accords with
that of Glonoso in most respects Kloetzh was asked during the hearing
about his motive in requesting a copy of the contract since , as he testified,
he did not intend to hire any of his predecessor's employees (and did not in
fact do so) and has always conducted his facilities theretofore on a non-
union basis He replied that he had not yet consulted counsel when he went
to meet with Glonoso; that he was "inexperienced in the matter"; that he
was "not sure" whether or not he had to sign a union contract; and that he
felt it "was a matter of courtesy to see the contract that Glonoso was talking
"about."
4 Glorioso's testimony indicates that the contract between Respondent
and Mark IV was nearing its terminal date . In anticipation of the possibility
that Mark IV would continue to be the cafeteria operator Respondent had
sent to it a set of new contract proposals for the purpose of negotiation. It
was these contract proposals that Glonoso subsequently sent to Kloetzli.
5 Admittedly, the Company hired none of the predecessor's employees. It
began its operations , according to Kloetzli 's uncontroverted testimony, with
a crew of employees it transferred there from other of its operations.
6 The loading dock faces on to Biddle Street . Adjacent thereto is a walk-
wa7y which leads to a rear entrance of the State Office Building.
There was some evidence also that Steelworkers joined in the picketing
Continued
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion from June 2 until July 22 when, under the circum-
stances hereafter set out, the picketing ceased.
The picket signs stated:
Do NOT patronize Action One Operators of State Of-
fice Building Cafeteria.
This Cafeteria is being operated without a union con-
tract after the operator refused to hire union members.
Bartenders, Hotel, Restaurant & Cafeteria Union Lo-
cal 36, AFL-CIO.
The handbills distributed between June 2 and June 16
read:
TO THE PUBLIC
PLEASE DO NOT PATRONIZE
"ACTION ONE, INC."
THE OPERATOR OF THE
STATE OFFICE BUILDING CAFETERIA
While you were enjoying your 3 day Memorial Week-
end, the Cafeteria Workers were informed They No
Longer Had Any Jobs!!!
During this Holiday Weekend "Action One, Inc.", the
new concessionaire, began operating the State Office
Building Cafeteria. And he took Action! !
Action One: Refused to hire your Veteran Cafeteria
Workers who have continuously prepared and served
your meals in this State Office Building Cafeteria
since 1960.
Action One: Refused to bargain nor [sic] sign a Union
Contract thereby depriving your Cafeteria Workers of
the benefits and advantages of a Union Contract that
your Cafeteria Workers have enjoyed since 1960.
Do Not Patronize Support The
This Facility Cafeteria Employees
The picketing was at all times peaceful. And, apart from
depicting the occurrence of a single incident of confronta-
tion between a picket and a delivery driver of one of the
Company's suppliers during the early stages of the picket-
ing, the record reveals no evidence that the pickets con-
ducted themselves in an obstructive and impeding manner
with respect to any individual seeking access to the State
Building. The single incident of confrontation is, however,
worthy of note, in light of the undisputed fact that pickets
patrolled at the delivery docks, and because, as explicated
in more detail hereafter, Respondent disputes the validity
of unfair labor practice violations attributed to it by the
complaint on grounds, inter alia, that its picketing activity
was aimed solely at the consumer members of the public.
The confrontation incident is described in the uncontra-
dicted-and here credited-testimony of Leonard Sachs,
an employee of the Continental Coffee Company. Sachs
testified that, when he pulled his truck up to the loading
dock at the State Office Building on June 2 to make a
delivery to the Company, a picket came up to him and the
on June 5, apparently as sympathetic pickets. But I do not deem it unpor-
tant to this case
following exchange occurred:
They [sic] gave me one of the handbills, which I
didn't bother to read. I just put it down and didn't
bother with it. So she said, "Are you going to deliver
here?" I said, "yes." She said, "You really shouldn't."
I asked why. She said "because they are unfair-Ac-
tion One-they threw us out of a job." I said, "Well, I
have to make a living too." Meanwhile Coca-Cola is
on the side making delivery. I said, "What is going to
happen if I don't." She said, "We could boycott Conti-
nental." I said, "Are you going to do the same thing to
Coca-Cola too?" And she replied that whatever has to
be done.
Sachs did not refrain from making his delivery despite the
picket's admonition, and so far as appears from the record,
Respondent took no further action on the matter.8
On June 6, the Company filed a representation petition
with the Board (Case 5-RM-778) requesting the conduct
of an expedited election under the provisions of Section
8(b)(7) and the Board's Rules and Regulations, based on
the theory that Respondent was engaging in recognitional
and organizational picketing.9 The Board's Regional Di-
rector duly notified Respondent that an election would be
held.
By letter dated June 10, Respondent advised the Region-
al Director in part, that "it had no interest . . . in repre-
senting the employees of Action One and would not partic-
ipate in any way in any election you may schedule at that
location."
The letter also stated:
Local 36 [Respondent] had a collective bargaining
agreement with Action l's predecessor and attempted
to assert its rights under the successorship clause of its
contract prior to Action l's commencement of opera-
tions. This effort was rebuffed. The Union has made
no further efforts in this regard.
The Union is exercising its right to advise the public
that Action I refused to hire Union employees and
does not have a union contract.
Administrative notice is here taken of the fact that Re-
spondent otherwise made no effort to have the Board con-
sider and review the Regional Director's entertainment of
8 I note , but deem of no substantial import to my disposition of this case,
the testimony of Kloetzh concerning (a) a refusal by a freight carrier to
deliver goods he had ordered from a New York supplier to the Company's
premises, assertedly because of the picketing, and the freight carrier's impo-
sition upon him of the task, accordingly, that he pick up the goods at the
carrier's warehouse; and (b) a delay he experienced of a day or two in
obtaining a delivery of canned sodas from a local Coca-Cola distributor
because, according to an unidentified person to whom he spoke when he
telephoned the supplier, the drivers had refused to deliver goods through the
picket line.
Assuming, without deciding, that Kloetzh would not have experienced the
difficulties in obtaining delivery which he described absent the picketing,
this would not establish, in my view, a proper basis for finding that the
picketing in fact had any substantial impact or effect on the Company's
conduct of its business , These occurrences were isolated in character.
9 As appears from the official records of the Board (of which I take offi-
cial notice here), the Company also filed a charge alleging that
Respondent's picketing violated Section 8(b)(7)(C) of the Act. In accord
with established practice, that charge was dismissed after the Board con-
ducted the election.
BARTENDERS, LOCAL 36 825
the petition supra and/or his determination that an exped-
ited election should be held pursuant thereto.IO
The election was duly conducted pursuant to the petition
supra, on June 16, in a unit consisting of all the cafeteria
employees employed by Action One at the State Office
cafeteria with the customary exclusion of office clerical,
professional employees and guards and supervisors. The
name of Respondent appeared on the ballot. The tally of
ballots showed 11 votes for no union representation and no
votes cast for the Respondent. No objections were filed to
the conduct of the election.
Accordingly, on June 24, the Regional Director issued a
Certification of Results of Election certifying that a majori-
ty of votes had been cast against union representation and
that Respondent was not the collective-bargaining repre-
sentative of Action One in the aforesaid unit.
As above noted, Respondent continued to picket the
Company despite the conduct of the election with picket
signs in precisely the same language as that described
above. It also continued to distribute handbills which,
however, had been changed to read as follows:
TO THE PUBLIC
PLEASE DO NOT PATRONIZE
STATE OFFICE BUILDING CAFETERIA
OPERATED BY "ACTION ONE, INC."
Action One, Inc., DON'T WANT UNION WORKERS!!
Action One, Inc., DON'T WANT UNION CONTRACT!!
FOR 15 YEARS UNION WORKERS HAVE BEEN PROUD TO SERVE
YOU
By the Action of the contract been awarded to "Ac-
tion One, Inc.":-Your Cafeteria Workers LOST their
jobs, their income, their job security, their paid holi-
days, their vacations, their health care benefits, their
sick pay, their hospitalization, their periodic wage in-
creases, their grievance machinery, their arbitration
procedures... .
ALL ACCRUED in the past 15 years with their
UNION CONTRACT.
Action One, Inc., Wants YOUR Union Patronage:-
"Maryland Classified Employees Association"
"Maryland State Employees Counsel, AFL-CIO"
AS UNION EMPLOYEES CONTINUE YOUR ACTION ! ! !
"DO NOT PATRONIZE ACTION ONE, INC., IN THE STATE OFFICE
BUILDING CAFETERIA"
This Consumers Boycott is directed only against "Ac-
tion One, Inc.", at the State Office Building Cafeteria.
CAFETERIA WORKERS UNION
LOCAL 36, AFL-CIO
THANK YOU FOR YOUR CONTINUOUS SUPPORT
On June 25, the Company filed the charge alleging the
violation of Section 8(b)(7)(B) which formed the basis of
the complaint herein.
On June 26, Respondent filed a charge against the Com-
pany alleging that Action One had violated Section 8(a)(1)
and (3) of the Act by refusing to hire 14 named employees
10 See Sec. 102.77 and 102.80 of the Board's Rules and Regulations; and
Sec. 101 .23 of the Board 's Statements of Procedures , Series 8 , as amended.
because of their membership in and activities on behalf of
the Respondent."
On July 22, pursuant to a petition filed by the Board
against Respondent under Section 10(1) of the Act, the
United States District Court for the District of Maryland
issued a temporary injunction against a continuation of the
picketing pending the Board's disposition of the instant
proceeding. There has been no picketing since that date.
III. THE POSITIONS OF THE PARTIES WITH RESPECT TO THE
ALLEGED VIOLATIONS
Section 8(b)(7)(B) of the Act-the statutory provision in-
voked by the complaint-unequivocally proscribes picket-
ing by an uncertified labor organization such as Respon-
dent where such picketing has an objective of forcing or
requiring an employer to recognize or bargain with it as the
representative of his employees, where within the preced-
ing 12 months a valid election under Section 9(c) of the Act
has been conducted.
General Counsel contends that the facts set out above-
all virtually undisputed-establish the essential elements of
the alleged violation, viz that (a) an object of Respondent's
picketing of the Company, at all times here material, was
to force and require the Company to recognize and bargain
with Respondent (a union which admittedly was not a cur-
rently certified representative of the Company's employ-
ees); and (b) Respondent engaged in that picketing within
the 12-month period following the conduct of a Board elec-
tion which the Respondent lost.
In challenging the validity of the General Counsel 's case,
Respondent makes several alternative but interrelated con-
tentions. As a threshold matter, Respondent asserts that its
picketing was informational, rather than recognitional in
nature at all times since its inception and was, in fact the
kind of consumer-appeal or publicity picketing permitted
by the second proviso to Section 8(b)(7)(C) of the Act.
This threshold argument forms the springboard for
Respondent's attack on the validity of the election: Since
as the Respondent puts it, the picketing activity fell within
the scope of the second proviso to Section 8(b)(7)(C), it
could not furnish the proper predicate for the conduct of a
second election.
Alternatively, Respondent argues that even if its picket-
ing did not fall within the permissible ambit of that proviso,
the election was nevertheless invalid. It rests this argument,
in part, on the language in Section 8(b)(7)(C) which con-
fines the picketing there prohibited to that which "has been
conducted without a petition under Section 9(c) being filed
within a reasonable period of time not to exceed thirty
days from the commencement of such picketing." And, it
asserts, that the instant petition-filed only 4 days after the
commencement of picketing which was at all times peace-
fully conducted-was consequently premature and could
not therefore provide the predicate for a valid election. In
addition, it contends that its June 10 letter to the Regional
11 Although that charge was still pending while the picketing herein was
going on, I take official notice of the fact that it was dismissed administra-
tively by the Regional Director on August 25. Respondent filed no appeal
from that dismissal and the case was marked closed on September 5, on the
General Counsel's records.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director was an express disclaimer of any representation
interest of a kind sufficient under Board law to preclude
the conduct of any election absent a new demand for rec-
ognition and bargaining. -
As a final matter, Respondent asserts that even if the
June 16 election were a "valid" one within the meaning of
the relevant statutory provisions, General Counsel did not
meet his burden of proving, on the facts set out above, that
the post-election picketing has a proscribed recognition ob-
ject.
IV. ANALYSIS AND CONCLUDING FINDINGS
As a threshold matter, I find ample support for the Gen-
eral Counsel's position that, at all times here relevant,
Respondent's picketing was tainted with a proscribed ob-
jective within the meaning of Section 8(b)(7) of the Act
notwithstanding the presence of certain informational and
consumer appeal features of the picketing activity. I am
guided, in this respect, by the teaching of Board cases that
the existence of an unlawful recognition objective may
properly be ascertained from a totality of the picketing ac-
tivity in question, including the context in which it oc-
curred, the legends on the picket signs, the location of the
picket line, and incidental conduct by the pickets which
may be revelatory of the purpose of the picketing activity.12
Respondent began its picketing activity on the heels of the
Company's refusal of a demand that it assume the bargain-
ing obligations of its predecessor when it commenced its
operation of the cafeteria here involved. The legends on the
picket signs-never altered during any time here rele-
vant-announced the absence of a union contract with the
Company as a major reason for the picketing activity and
reaffirmed the continuing nature of the bargaining de-
mand. It is true that, on their face, the picket signs purport-
ed to appeal to prospective company customers only. But
the manner in which the Respondent actually conducted
its picketing makes it crystal clear that Respondent did not
embark upon or engage in that activity solely for the pur-
pose of appealing to the public. The picket Imes were not
confined to the entrances customarily used by the public
but extended also to the delivery docks used by suppliers'
employees; and there is proof that, in at least one instance,
a picket directly confronted a delivery driver with an ex-
press appeal that he refrain from crossing the picket line.13
As above noted, there was no hiatus in the picketing,
and no change of any substance in the manner in which it
was conducted,from its inception until it was enjoined by
order of the Court. Accordingly, I can perceive no merit in
the Respondent's claim that any unlawful tamt which
might have been found present in its preelection picketing
cannot be deemed to have been carried over to its postelec-
tion picketing. To be sure, Respondent, by its letter dated
June 10 to the Regional Director, expressed disinterest in
12 See, e.g., Teamsters Local Union No. 5, a /w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers, Inc. (Barber Brothers Con-
tracting Co., Inc.), 171 NLRB 30, 31 (1968)
13 As indicated above , the evidence of the picket's oral appeal to the
delivery driver herein serves to buttress the inference which might fairly be
drawn, in any event, that the picketing activity was not in fact aimed solely
at the public. See, e.g., the Barber Bros. case , supra at 32.
representing the Company's employees; and it did not
thereafter contact the Company directly to repeat its pre-
picketing demand for recognition and bargaining. But,
while using disclaimer language in its June 10 letter, Re-
spondent also simultaneously expressed its intent to con-
tinue its picketing activity because the Company "refused
to hire Union members and does not have a union con-
tract." And it has never abandoned its position that it has
a "right" to exert pressure on the Company through picket-
ing in order to obtain those objectives.
All the foregoing evidence does more than to establish,
as an affirmative matter, that the picketing activity, at all
times here relevant, was directed at a recognition object
and was of the type prohibited by Section 8(b)(7). It also
connotes the lack of factual merit in the Respondent's
characterization of that activity, for any part of the period
marking its duration, as permissible "publicity" or infor-
mational picketing activity of the type contemplated by the
second proviso to Section 8(b)(7)(C) of the Act.14 I con-
clude, accordingly, that an objective of Respondent's pick-
eting-if not the sole objective-was to force and require
the Company to capitulate to its demand for bargaining
and recognition, and that such activity was conducted in
derogation of the proscriptions of Section 8(b)(7) of the
Act.ls
I also find that the election conducted on June 16 was a
valid election within the meaning of relevant portions of
the statute.
The Company's June 6 petition on which the Regional
Director acted in holding the election was clearly a petition
duly filed under the provisions of Section 9(c) of the Act.
And it must be here assumed that, in acting on that peti-
tion, the Regional Director took into account the various
considerations which the Respondent now urges to support
its position that the petition should have been dismissed
and/or the election should not have been held. The
Respondent's present challenge of the validity of the elec-
tion therefore seems to me to raise issues which might have
been, but were not, raised in the representation proceed-
ing.16 In these circumstances, I am precluded, I believe,
from considering those issues on the merits in this subse-
quent related unfair labor practice proceeding under the
provisions of Section 102.67(f) of the Board's Rules and
Regulations.
In any event, even if it is deemed to be within the scope
of my authority to now review, de novo, the determinations
made by the Regional Director as a predicate to his direct-
ing the expedited election herein, I would find, on the facts
of this case, that there is no merit in the Respondent's
claim of invalidity in those determinations. As appears
14 Under long-established Board law, that proviso cannot, in any event,
furnish any basis for defense in an 8(b)(7)(B) case, Local 182, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(Woodward Motors, Inc), 135 NLRB 851, 858-859 (1962).
is It has long been held that if one of the union's objectives in picketing is
for organization or recognition, it is immaterial that the picketing also has
additional, and possibly legitimate , purposes. See, e g. San Francisco Local
Joint Executive Board of Culhnary Workers, Bartenders, Hotel & Club Service
Workers, AFL-CIO (Jack-In-The-Box), 203 NLRB 744,745-746 (1973), and
other cases there cited.
16 See particularly Sec. 102.80(c), 102 77, and 102.67 of the Board's Rules
and Regulations; and Sec 101 23 of the Board's Statements of Procedures.
BARTENDERS, LOCAL 36 827
from the findings above made, the Regional Director had
reasonable cause to believe that neither the picketing as
conducted before the Company's June 6 petition was filed,
nor as conducted after, ever conformed to that described in
the secondproviso to Section 8(b)(7)(C) of the Act. He was
not therefore precluded from enter-taming the Company's
June 6 petition and in directing the expedited election sim-
ply because the Respondent opposed his doing so. Nor, so
far as I have been able to determine from my search of the
here relevant body of law, was he required to treat that
petition as prematurely filed and/or to postpone the con-
duct of the election until at least 30 days had gone by from
the date the picketing commenced.17
In sum, I find no warrant in the record or the law for the
Respondent's conduct of its recognitional picketing activi-
ty following the holding of the Board election on June 16.
It follows, accordingly, that the Respondent's conduct was
in violation of Section 8(b)(7)(B) as alleged. I so conclude.
Upon the basis of the foregoing and upon the entire rec-
ord in this case, I make the following:
CONCLUSIONS OF LAW
1. Action One, Inc., is an employer within the meaning
of Sections 2(2) and 8(b)(7) of the Act.
2. -Respondent is a labor organization within the mean-
ing of Sections 2(5) and 8(b)(7) of the Act.
3. By picketing Action One, Inc., after the conduct of a
valid election under Section 9(c) of the Act, with the object
of forcing or requiring Action One, Inc., to recognize and
bargain as a collective-bargaining representative of em-
ployees or prospective employees of Action One, Inc., Re-
spondent has engaged and is engaging in an unfair labor
practice proscribed by Section 8(b)(7)(B) of the Act.
4. The foregoing unfair labor practice has a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and substantially affects
commerce within the meaning of Section 2(6) and (7) of
the Act. -
THE REMEDY
Having found that Respondent has engaged in picketing
activities in violation of Section 8(b)(7)(B) of the Act, I
shall recommend that it cease and desist from such activi-
17 I have read, inter aha, the cases cited by the Respondent to support its
contrary claim, viz. N L R.B. v Sapulpa Typographical Union No 619, affili-
ated with International Typographical Union [Sapulpa Daily Herald], 321
F.2d 771 (C.A. 10, 1963); Samoff v Teamsters Local 115, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America
[J. L. Popowich and Sons], 338 F Supp. 856 (D C. Pa., 1972); and Construc-
tion & General Laborers Local Union 1290, (Walters Foundation., Inc.), 203
NLRB 397 (1973). I regard them as wholly inapposite. None of them dealt
with a situation where, as here, a petition seeking an expedited election has
been filed by the employer against whom the union was picketing in aid of
a recognition or bargaining demand
ties and that it take certain affirmative action which I find
necessary to effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record , and pursuant to Section 10(c) of
the Act, I issue the following recommended:
ORDER 18
Respondent, Bartenders, Hotel, Restaurant and Cafete-
ria Employees Union Local 36, a/w Hotel and Restaurant
Employees and Bartenders International Union, AFL-
CIO, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Picketing or causing to be picketed, or threatening to
picket Action One, Inc., where an object thereof is to force
or require Action One, Inc., to recognize and bargain with
it as the representative of its employees or to force or re-
quire the employees of Action One, Inc., to accept or select
it as their bargaining representative, for a period of 1 year
from July 22, 1975.19
(b) Picketing or causing to be picketed, or threatening to
picket Action One, Inc., for either of the aforementioned
objectives, where, within the preceding 12 months, a valid
election under Section 9(c) of the Act has been conducted
which the Respondent did not win.
2. Take the following affirmative action which, it is
found, will effectuate the purposes of the Act:
(a) Post at its respective offices and conspicuous places
including all places where notices to members are custom-
arily posted, copies of the attached notice marked "Appen-
dix." 20 Copies of said notice to be furnished by the Re-
gional Director for the Region 5, shall, after being duly
signed by representatives of the Respondent, be posted by
the Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter. Reasonable
steps shall be taken by the Respondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(b) Sign as aforesaid and mail sufficient copies of this
notice to the Regional Director for Region 5 for posting,
Action One, Inc., willing, at all locations where notices to
employees are customarily posted.
(c) Notify the Regional Director for Region 5, in writ-
ing, within 20 days of this Order, what steps the Respon-
dent has taken to comply herewith.
18 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 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.
19 In framing this portion of the remedy , I have followed the rule initially
established by the Board in Retail Store Employees Union, Local No 692
(Irvin, Inc), 134 NLRB 686, 690-692 (1962).
2° In the event 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."