Culinary Alliance

National Labor Relations Board - Board Decisions

Apr 26, 1950

89 N.L.R.B. 713 (N.L.R.B. 1950)

In the Matter Of CULINARY ALLIANCE AND BARTENDERS AND CARD
Room WORKERS LOCAL No. 425 OF VANCOUVER, WASHINGTON, AFFILI-
ATED WITH HOTEL AND RESTAURANT EMPLOYEES' INTERNATIONAL
LEAGUE OF AMERICA, AFL, and JOHN LEE MOW (AN INDIVIDUAL)
and WASHINGTON STATE RESTAURANT ASSOCIATION, SOUTHERN DIVI-
SION ( AND ITS MEMBERS), PARTY TO THE CONTRACT
Case No. 36-CB-8.-Decided April 26, 1950
DECISION
AND
ORDER
On January 16, 1950, Trial Examiner Charles W. Whittemore
issued his Order in the above-entitled proceeding, recommending that
the complaint be dismissed in its entirety, as set forth in the copy of
his Order attached hereto. The Trial Examiner therein found that
the operations of the Association, its members, and the three
employers who discharged complainant Mow, although not wholly
unrelated to commerce, were essentially local in character, and that
it would not effectuate the policies of the Act to assert jurisdiction
in this case. Thereafter, the General Counsel filed a Petition for
Review and Exception, together with a supporting brief ; the
Respondent Union filed a brief in support of the Trial Examiner's
Order.
. The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Order, the Petition for Review and Exception, the briefs,
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.
As the Trial Examiner found, the hearing was recessed for a period
of some 2 months at the General Counsel's request, in order to secure
"competent evidence" as to the operations in commerce of the 50 or
I Pursuant to the provisions of Section 3 (b) of the Act, as amended , the National Labor'
Relations Board has delegated its powers in connection with this case to a three -member
panel [Chairman Herzog and Members Reynolds and Styles].
89 NLRB No. 101..
713
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
60 members of the Association's Southern Division, the contracting
party. When the hearing reconvened, however, the General Coun-
sel's representative merely continued to. offer limited evidence of
doubtful weight. This consisted principally of multiplications of
selected samples of estimates of the commercial operations of about
one-fifth of the Division's membership, covering the brief period of
about a month. Moreover, these sample estimates purported only to
show that the 3 individual restaurants directly involved in the dis-
charges had no outflow in commerce, that they had an estimated annual
inflow of no more than about $3,000 to $18,000 in supplies originating
outside the State, and that they served meals to some individuals
engaged in commerce.
We agree with the Trial Examiner that the record in this case falls
short of establishing that the operations involved have such a close,
intimate, and substantial relation to commerce that the assertion of
jurisdiction would effectuate the policies of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the
Respondent, Culinary Alliance and Bartenders and Card Room
Workers Local No. 425 of Vancouver, Washington, affiliated with
Hotel and Restaurant Employees' International League of America,
AFL, be, and it hereby is, dismissed in its entirety.
ORDER
Charges having been duly filed in the above-captioned case;
A complaint and notice of hearing having been issued on April 15, 1949,
by the General Counsel of the National Labor Relations Board, by the Regional
Director for the Nineteenth Region ;
An answer having been filed by the Respondent Union ;
A hearing having been held in Vancouver , Washington , on October 4, 5, and
December 5, 6, 7, and 8, 1949 , before the undersigned Trial Examiner, and
evidence having been received on all issues raised in the pleading ;
A motion having been made at the close of the hearing by the Respondent
for dismissal of the complaint , and ruling upon said motion having been reserved
in order that briefs might be filed, particularly as to the commerce issues ;
Briefs having been received on January 9, 1950;
A summary of evidence adduced at the hearing as to the business of the
Washington State Restaurant Association , Southern Division , being as follows ;
•. I. The Association is a voluntary , nonprofit service organization of individ-
uals and concerns engaged in local restaurant , tavern , or hotel business, all
within the State of Washington . Its southern division , with which these
proceedings are concerned, is made up of • an undetermined-, number of such
CULINARY ALLIANCE ET AL. 715
enterprises located mainly in Clark County, which is adjacent to the Wash-
ington-Oregon State line. One of the purposes of the Association is the "estab-
lishment and the cultivation and the maintenance of labor relations," according
to the testimony of the organization's assistant general manager. Membership
application in the Association includes a clause appointing the Association as
the applicant's "duly appointed representative" in matters of collective
bargaining.
The president of the Association's southern division testified that he did not
know "exactly" how many members there were, but that he "would approximate
sixty." As a purported list of current members, General Counsel introduced into
evidence a document containing names and addresses of 48 concerns, which the
assistant general manager of the Association said had been "run off" for him
"three or four months" before October 1949, from addressograph plates in his
office, and to the best of his knowledge comprised an "accurate record" of the
southern division membership. The same witness further said, however, that
it was "entirely possible" that some of the members on the list did not enter
into the contract with the Respondent Union, which General Counsel claims is
illegal and the closed-shop provisions of .which give rise to these proceedings.
The witness later testified that it was also "possible" that "sorue of the establish-
ments" on the list "are quite small and do not hire employees." (Emphasis
supplied.) Thereafter an official of the Union testified, uncontradicted, that
Several concerns on the list were not in existence at the time the material contract
was entered into with the Association, or were not covered by the contract.
By referring in his brief to a total of "50 odd," General Counsel indicated his
own uncertainty, after the hearing, as to the precise number of Association
members whom he claims are involved, even in his own theory of jurisdiction.
Commerce data was introduced as to only 13 concerns. Most of the evidence
was speculative, inaccurate according to the admission of witnesses themselves,
and even the estimates were based largely upon arbitrarily selecting and adding
purchase slips for 1 month or 1 week and multiplying by 12 or by 52.
Early during the hearing when, by his own statement, it appeared that General
Counsel intended to call only some 10 witnesses and would expect the Board to
multiply their total business -by 6 in order to determine the commerce total of a
membership of 60, the Trial Examiner pointed out his reluctance to make
findings on evidence of this character. Thereupon General Counsel asked for
adjournment sine die in order to obtain "commerce information on all sixty-odd
members" and to provide "competent evidence." Upon resumption of the hear-
ing 2 months later, however, General Counsel reverted to his original position
of asking the Board, on the basis of limited evidence of doubtful weight, to arrive
at a reasonable estimate of the annual interstate business done by all Association
members in the southern division, through process of multiplying by some un-
determined figure an accumulation of inaccuracies.
A summary of evidence adduced at the hearing as to the business of three
individual concerns which, seriatim, discharged John Lee Mow upon insistence of
the Respondent Union, being as follows :
A. Lotus Cafe is a Chinese restaurant specializing in Chinese food. Sam Sing,
proprietor, according to the testimony of his manager, has no knowledge as to
the amount of his purchases for any given period. On various occasions he turns
his invoices over to a lawyer. General Counsel introduced into evidence a docu-
ment which shows, in substance, annual purchases of about $45,300 worth of
supplies, mainly food, of which $14,600 worth originated from across the State
716 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
'line. It appears, however, that this document was not prepared by Sing, his
manager, or his lawyer, but by a representative of the Board, and was computed
from a selection of 1 month's invoices obtained from the lawyer.
B. Palace Billiards is an establishment having billiard tables, a bar, a card
room, and a small restaurant. Again based upon percentge figures for 1 month,
'General Counsel placed in evidence a document estimating that purchases of all
supplies for 1948 totaled about $30,000, of which about 111/2 percent originated
from across the State line.
C. New Bungalow. For a period of about 2 months in 1949 purchases of the
tavern part of this business totaled about $3,600, of which about 48 percent
originated from across the same State line. For a period of about 1 month in 1949
purchases of the cafe part of the business totaled about $1,900, of which about
32 percent originated across the State line.
Now, THEREFORE, the said Trial Examiner, being fully advised in the premises,
having fully considered the entire record in the case, particularly as to the com-
merce allegations and evidence, is of the opinion that the operations of the Asso-
ciation, its members, and the three individual concerns described above, are
-essentially local in character. As to the Association, the Trial Examiner con-
siders the nature and extent of evidence offered insufficient to support any rea-
sonably accurate total estimate of purchases by its members with origin either in
or out of State. Even if General Counsel's estimate of purchases for Lotus Cafe,
Palace Billiards, and New Bungalow are accepted at face value, and although it
does not appear that the operations of these three enterprises are wholly unre-
lated to commerce, the Trial Examiner is of the opinion that assertion of juris-
diction in the instant case would not effectuate the policies of the National Labor
Relations Act;
Said motion urging dismissal upon jurisdictional grounds is hereby granted;
and it is hereby
ORDERED, that said complaint be dismissed in its entirety.
Any party may obtain a review of the foregoing order, pursuant to Section
203.27, National Labor Relations Board, Rules and Regulations by filing a re-
quest therefor with the Board, stating the grounds for review, and immediately on
such filing serve a copy thereof on the Regional Director and the other parties.
Unless such request.for review is filed within 10 days from the date of the order
of dismissal, the case shall be closed.
Signed at Washington, D. C., this 16th day of January 1950.
CHARLES W. WHITTEMORE,
Trial Examiner.
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