Chefs, Cooks, Pastry Cooks & Assistants, Local 89

National Labor Relations Board - Board Decisions

Feb 20, 1962

135 N.L.R.B. 1173 (N.L.R.B. 1962)

CHEFS, COOKS, PASTRY COOKS & ASSISTANTS, LOCAL 89 1173
My colleagues in the principal opinion in this case find that the
Union violated the Act because its 8(a) (5) charge turned out to lack
merit. The Union herein filed its refusal-to-bargain charge approxi-
mately 3 weeks after the commencement of its recognition picketing.
This charge was dismissed 3 weeks later and, on the same day, the
Union filed its petition. While I agree that in future cases only a
"meritorious" charge under Section 8(a) (5) should excuse a failure
to file a timely petition, I perceive no warrant for applying that
policy here, notwithstanding the Union's failure to timely file its
petition. Although the literal command of that section required the
filing of a petition within 30 days from the date of the picketing, the
Aiello doctrine foreclosed the Union from processing its petition un-
less it would suffer dismissal of its unfair labor practice charge with-
out investigation of its merits.38 The Union thus had no way to press
its claim that the Company had violated Section 8(a) (5) without
risking a violation of Section 8(b) (7) (C) in the event its refusal-to-
bargain charges were found to lack merit. I would not penalize the
Union in this case for its reliance on a Board practice which, as my
colleagues state, has been accorded congressional approval39 To
avoid such a situation recurring in the future, I would modify the
Aiello doctrine accordingly.
While I otherwise agree with the observations of my colleagues
concerning the disposition of the issues here presented, I would never-
theless dismiss the complaint in this proceeding.
"Members Rodgers and Leedom correctly state the holding in Aiello, namely , that the
union, having proceeded in that case to an election which it lost, could not thereafter
maintEin a refusal -to-bargain charge on the basis of the facts existing before the election
took place . • However, at least Member Rodgers agrees with the doctrine which has
evolved from that decision , I e, that a union is required to withdraw Its refusal-to-bargain
charge or suffer its dismissal if it elects instead to file and process a representation peti-
tion See , e g., Tom Thumb Stoi es, Inc, 123 NLRB 833, 834, footnote 2.
" As indicated by my colleagues in the principal opinion, congressional acquiescence
in the Board 's practice under Aiello of dismissing petitions where unions elect to proceed
with 8 ( a)(5) charges points up congressional approval of that practice
Chefs, Cooks, Pastry Cooks and Assistants , Local 89, Hotel and
Restaurant Employees Union , AFL-CIO; and Waiters and
Waitresses , Dining Room Employees Local 1 , Hotel and Res-
taurant Employees Union , AFL-CIO and Stork Restaurant,
Inc. Case No. 2-CP-12. February 20, 196'3
SUPPLEMENTAL DECISION AND ORDER
On February 20, 1961, the Board issued its Decision and Order 1 in
the above-entitled proceeding, finding that Respondents had engaged
in certain unfair labor practices in violation of Section 8(b) (7) (C)
1130 NLRB 543.
135 NLRB No. 122.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act. Thereafter on April 11, 1961, Respondents moved that
the Board reconsider its finding that by their picketing since Janu-
ary 15, 1960, Respondents have violated the aforesaid section of the
Act. In support of their motion Respondents also requested oral
argument.
The Board has considered the motion for reconsideration, the re-
quest for oral argument, and the entire record in the case,2 and hereby
grants the motion for reconsideration. The request for oral argument
is denied as the record, including the motion for reconsideration and
the memorandum in support thereof, adequately presents the issues
and the positions of the parties.
1. Upon reconsideration the Board unanimously reaffirms the find-
ing made by the Board in the original Decision and Order herein that
the Respondent's picketing activities prior to January 15, 1960, vio-
lated Section 8(b) (7) (C) of the Act. For reasons stated in the orig-
inal Decision and Order, the Board likewise unanimously rejects the
Respondents' contention that a remedial order is unnecessary for this
unlawful conduct. Even if the picketing after January 15, 1960, is
deemed to be not in violation of the Act, it is clear that the earlier
picketing did constitute an unfair labor practice. Discontinuance of
an unfair labor practice does not obviate the need for, or the propriety
of, a remedial order .3
2. In its original Decision and Order the Board likewise found
unanimously, but for differing reasons, that Respondents' picketing
after January 15, 1960, was violative of Section 8(b) (7) (C) of the
Act. In substance, the rationale was that the second proviso to Section
8(b) (7) (C), the so-called "information" proviso, does not protect in-
formational picketing if it has the effect of inducing individuals
employed by any other person not to pick up or deliver goods. Having
found that the picketing here in issue had such an effect, the conclu-
sion followed that the picketing after January 15, 1960, even if re-
garded as informational, was violative of Section 8(b) (7) (C) of
the Act.
Chairman McCulloch and Members Fanning and Brown take issue
with the foregoing rationale in that it is susceptible to an interpreta-
tion that informational picketing falls under the second proviso to
2 Chairman McCulloch and Member Brown, although not present at the oral argument
preceding the February 20, 1961, Decision and Order, have read and considered the
transcript of that oral argument.
3 Respondents in their memorandum in support of the motion to reconsider appear to
have abandoned their contention that Section 8(b) (7) was intended to outlaw minority
but not majority picketing In any event, the Board reaffirms its view, as set forth in
the original decision herein, that Section 8(b) (7) contains no such limitation on the
scope of its application See also the discussion of this issue in our Supplemental
Decision and Order in International Hod Carriers, etc, Local 840, AFL-CIO (Charles A.
Blinne, d/b/a Blinne Construction Company), 135 NLRB 1153, issued this day. How-
ever, as Member Fanning indicated in his separate opinion in this case, where a union's
picketing satisfies the second proviso to Section 8(b) (7) (C) it may lawfully picket under
that section regardless of whether it is a majority or minority union
CHEFS, COOKS, PASTRY COOKS & ASSISTANTS, LOCAL 89 1175
Section 8(b) (7) (C) whether or not such picketing is for a recognition
or organization object. In their view, more fully set forth in a com-
panion case,4 the second proviso has application only to recognition,
bargaining, or organization picketing, the subject matter with which
the whole of Section 8(b) (7) is exclusively concerned. The reading
suggested by the principal opinion in the original decision would take
the proviso wholly out of its statutory context. Moreover, it would
impute to -Congress an intent to utilize a proviso to Section
8(b) (7) (C) as a device to create a wholly new unfair labor practice,
i.e., a ban against all informational picketing, whatever its nature or
objectives, wherever that picketing interferes with deliveries or
the performance of services. Apart from possible constitutional in-
firmities in so broad a ban,' such an interpretation would do violence
to the "natural construction which the text, the legislative setting, and
the function of the statute command." Phelps Dodge Corp. v.
N.L.R.B., 313 U.S. 177, 186. The second proviso to Section
8 (b) (7) (C) like the first, which has to do with expedited elections, has
obvious relevance only to situations where the picketing has a recog-
nition or organizational objective.
3. The Board in its original decision herein found, contrary to the
Trial Examiner, that the picketing after January 15, 1960, like the
picketing before January 15, 1960, had recognition as an objective.
Absent the prior history of this case in ancillary proceedings before
the courts, Chairman McCulloch and Member Brown would be in-
clined, on the basis of the record, to adhere to this determination.
A brief recapitulation of that history is in order. The Trial Ex-
aminer, when the case was before him, had found, after a detailed
analysis of the facts, that the picketing after January 15, 1960, was
not for recognition and found further that it was not for an object
proscribed by Section 8('b) (7). His findings were made on the basis
of a stipulated record, the identical record which had been presented
to United States District Judge Dawson in connection with a petition
for an injunction under Section 10(1) of the Act. McLeod v. Chefs,
Cooks, etc., 181 F. Supp. 742 (D.C.S.N.Y.). Judge Dawson found
upon this record that there was reasonable cause to believe that Re-
spondent Unions had, as one of their objectives, forcing or requiring
the employer to bargain with the unions. Judge Dawson's decision
was later appealed to the United States Court of Appeals for the
,Second Circuit. Ivan C. McLeod v. Chefs, Cooks, etc., Local 89, et al.
(Stork Restaurant), 280 F. 2d 760. The court of appeals carefully
* See the dissenting opinion in Local Joint Rmecutive Board, et al . ( Leonard Smitley,
et al, d/ b/a Crown Cafeteria ), 130 NLRB 570, which the majority of the Board has
now adopted in its Supplemental Decision and Order in that case, issued this day.
5 See Thornhill v. Alabama, 310 U S. 88, and particularly Chauffeurs , Local No. 795 v.
Newell, 356 US 341, summarily reversing on the authority of Thornhill a blanket pro-
scription against all picketing
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reviewed the evidence and concluded that the finding of Judge
Dawson-
that the picketing [after January 14, 1960] had as an objective,
that of compelling the employer to bargain or recognize the union
was clearly erroneous. The unions clearly announced the change
in objective on January 14, 1960 and took action to modify their
activity so as to bring it within the sphere of allowable informa-
tional picketing permitted by the Act. Their prior objective
should not conclude the unions from engaging in lawful activity
at a later time.6
The court findings herein described were, of course, made in an ancil-
lary injunction proceeding where the criterion is not whether an un-
fair labor practice, supported by substantial evidence on the, record
considered as a whole, has been established, but merely whether there
is reasonable cause to believe that an unfair labor practice has oc-
curred. For that obvious reason, it is familiar doctrine that a court's
finding in a 10 (1) proceeding is not binding upon the Board when the
case is presented to the Board on the merits. On the contrary, the
Board in that situation is directed to make its own independent evalu-
ation of the evidence before it and to make its own findings, subject,
it is true, to the prescribed judicial review.
Yet, notwithstanding the unquestioned validity of the foregoing
principles the ineradicable fact remains that the record here is the
identical record which was before the court of appeals. There is no
basis, therefore, for assuming that a funding by Judge Dawson which
the court of appeals found to be "clearly erroneous" would be less vul-
nerable than a similar finding made by the Board on the same record
where the test of "substantial, evidence on the record considered as a
whole" is to be applied. Accordingly, Chairman McCulloch and
Member Brown believe it would be an exercise in futility to reaffirm
a finding that the picketing after January 15, 1960, was for an objec-
tive of recognition or bargaining, or for an object of organization, a
proposition which, it is fair to assume, the court of appeals also tacitly
rejected.
6 280 F 2d at 764. The court ' s opinion later on the same page adds the following
observation : " There is no substantial independent evidence to warrant the conclusion
that an object of the picketing was for recognition and to force or require the employer
to bargain with the unions as the agent of the employees."
It should be noted that notwithstanding the foregoing conclusions , the court neverthe-
less deemed injunctive relief , albeit limited relief, appropriate . At the same time, it should
also be noted that Judge Waterman in the cited case expressed doubt as to whether
injunctive relief was appropriate at all in the absence of proof of an unlawful objective.
(Id. at 765 .) And, in a subsequent phase of the same proceeding in the Court of Appeals
for the Second Circuit, Chief Judge Lumbard, in a dissenting opinion, indicated that he
shared Judge Waterman 's doubt but pointed out that the issue had not been raised.
286 F. 2d 727, 730
CHEFS, COOKS, PASTRY COOKS & ASSISTANTS, LOCAL 89 1177
Accordingly, Chairman McCulloch and Member Brown would rest
the finding of violation and the Order herein solely on the picketing
which took place prior to January 15,19601
4. Chairman McCulloch and Member Brown, like Member Fanning
in his original opinion and for the reasons there stated by him, do
not find it necessary in this case to reach or decide whether the com-
mission of unfair labor practices by an employer is it defense to
picketing otherwise falling under the ban of Section 8(b) (7) (C).9
Accordingly, having concluded as in the original decision herein,
but on more limited grounds, that a violation of Section 8(b) (7) (C)
of the Act has occurred, we reaffirm the Order previously entered
herein.
MEMBERS DODGERS and LEEDOM, separate opinion :
For the same reasons as are set forth in our separate opinion in
the Blinne case ,9 we would have denied the motion for reconsidera-
tion in this case. As our colleagues have seen fit to grant the motion,
we have also reconsidered the issues presented. Upon such recon-
sideration, we are convinced that the original decision was correct,
and we adhere to our views as expressed therein.
We note, moreover, that the result of reconsideration in this case
is an affirmance of the Board's original Decision and Order. Thus,
our colleagues agree with us that there was a violation prior to Jaiiu-
ary 15, 1960, and that the order originally entered was, and remains,
appropriate. In addition, Member Fanning finds with us, although
for somewhat different reasons, that the violation continued after
January 15. Thus, a majority of the Board finds here, as it did in
7In his separate opinion in the original decision, Member Fanning found that the Re-
spondents violated Section 8 (b) (7) (C) by their picketing after January 15, 1960 This
finding was based solely on the ground , as explicated In his dissent in Crown Cafeteria,
footnote 4, supra, that while picketing to truthfully advise the public that Stork did not
have a contract with Respondents satisfied the "Informational picketing" standards set
forth in the second proviso to that section , the privilege to conduct this picketing was
lost because it impeded deliveries to Stork. This conclusion is entirely consonant with
the decision of the court of appeals in McLeod v. Chefs, Cooks, etc, supra . The court
there stated that "the statute specifically permits informational picketing for the purpose
of advising the public, including consumers , that the employer does not have a contract
with a labor organization . Of course , if this activity has the effect of inducing other
employees not to make deliveries , then the picketing is made unlawful " (At p. 763.) As
Member Fanning reads the court's opinion , Its concern was directed at the breadth of the
injunctive relief granted by the district court which it construed as banning all picketing
by Respondents , Including proviso picketing which had no effect on deliveries The court
therefore remanded the case to the district court with instructions to tailor the Injunction
to reach only the illegal activity . That is all Member Fanning 's original opinion pur-
ported to do . Accordingly, lie would issue an order against picketing after January 15,
1960, to the extent that it violated the second proviso to Section 8( b) (7) (C) Insofar as
Members Rodgers and Leedom , for reasons they state In their separate opinion herein,
hold that the picketing after January 15 , 1960, is violative of Section 8(b) (7) (C'), it
follows that a majority of the Board so holds
g The Board 's views on this issue are set forth in the Supplemental Decision and
Order issued this day in Blsnne Construction Company, supra.
9 Blinne Construction Company , supra.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the original decision, that Respondent's picketing after, as well as
before, January 15 violated Section 8(b) (7) (C) of the Act.'o
Notwithstanding the result herein, we feel it necessary -to disagree
with the expression in the principal opinion that so-called inforlna-
tional picketing is protected even if it has the proscribed effect of
interfering with deliveries or services. As we pointed out in our dis-
senting opinion upon reconsideration of the Crown Cafeteria case,
so-called informational picketing is permitted under the second pro-
viso to Section 8(b) (7) (C) where there is no independent evidence
of an unlawful object, and where the picketing does not have a pro-
scribed effect. Where as here, however, the picketing interferes with
deliveries, such picketing loses the protection of the proviso and be-
comes subject to the general prohibition of Section 8(b) (7). Con-
trary to our colleagues' assertion, such an interpretation does not
"utilize a proviso . . . to create a wholly new unfair labor practice."
It merely gives effect to the limited area which Congress carefully
excepted from the general reach of the section.
In short, as we found originally, recognition in fact continued as
an objective of the Respondents' picketing after January 15, 1960;
but even were we to assume that after that date the picketing became
"informational," it was nonetheless violative of Section 8(b) (7) (C)
because that section applies when that picketing has the effect of in-
ducing employees of other persons not to make deliveries to Stork.
"We note that Chairman McCulloch and Member Brown decline to make independent
findings concerning the object of Respondents ' picketing after January 15 because to do
so assertedly would , in view of the opinion of the court of appeals in the ancillary Sec-
tion 10 ( 1) proceeding , be an "exercise in futility ." The Act, however, directs the Board
to make its own findings and conclusions on the record before it Those findings and
conclusions , including the finding by a majority here that Respondents ' picketing after
January 15 was for a recognition or organizational object, are subject to court review,
but shall be conclusive "if supported by substantial evidence on the record considered as
a whole." Acceptance of the court 's findings of fact in the 10 ( 1) proceeding as the
Board 's findings of fact in this proceeding seems to us to elevate the ancillary proceed-
ing above the main proceeding, which we believe is a procedure at variance with the
congressional intent.
We also note that there is a divergence of opinion among the judges on the court of
appeals as to Respondents ' object here , for in a subsequent stage of the 10(1) proceed-
ing before a different panel of that court, Chief Judge Lumbard stated , at 286 F. 2d
727, 730, that "it seems to me that on the application for the preliminary injunction the
Board made out a convincing case that an object of the union's picketing was to compel
recognition under circumstances proscribed by § 8(b ) ( 7)." Although Judge Lumbard
also stated that he shared certain doubts expressed by Judge Waterman when the pro-
ceeding was previously considered by the court , those doubts related not to the facts in
the case but to the propriety of an injunction under the facts as the court had found
them-an issue which the Unions did not raise before the court on appeal.
International Typographical Union and Ansonia Typographical
Union , Local 285 and Charlton Press, Inc. Case No. 1-CP-3.
February 20, 1962
SUPPLEMENTAL DECISION AND ORDER
On February 24, 1961, the Board (Member Fanning dissenting)
issued a Decision and Order in this case finding that the Respondents
135 NLRB No. 123.