Culinary Alliance Local 402

National Labor Relations Board - Board Decisions

Mar 28, 1969

175 N.L.R.B. 161 (N.L.R.B. 1969)

CULINARY ALLIANCE LOCAL 402 161
Culinary Alliance and Hotel Service Employees
Union Local 402 and The San Diego Civic
Facilities Corporation and Bob 's Enterprises, Inc.,
Charging Party. Case 21-CE-85
March 28, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On December 10, 1968, Trial Examiner James R.
Hemingway issued his Decision in the above-entitled
case, finding that the Respondents had engaged in
and were engaging in certain unfair labor practices
and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, both Respondents filed exceptions to the
Trial Examiner's Decision and supporting briefs and
the General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent Union, Culinary
Alliance and Hotel Service Employees Union Local
402, San Diego, California, its officers, agents, and
representatives, and the Respondent Employer, the
San Diego Civic Facilities Corporation, San Diego,
California, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified:
1. Delete from paragraph A, 1, of the
Recommended Order the phrase "or any other labor
organization."
2. Substitute the following for paragraph A, 2, of
the Recommended Order:
"Take the following affirmative action: Notify
Bob's and any other caterer whose name has been
removed at the suggestion of the Union from the list
'As the Respondent Union's dispute was with Bob's Enterprises, Inc,
Bob's was the primary employer Bob's position was therefore not identical
with that of a secondary employer, as the Trial Examiner indicated
of caterers maintained by Respondent as authorized
to do business at the San Diego Community
Concourse that it will not agree with the Union, in
violation of Section 8(e) of the Act, to cease doing
business with any caterer nor will it designate any
caterer in a list of authorized caterers as one which
does not have an agreement with the Union or as
one who might be picketed."
3. Delete from the first paragraph of the notice
attached to the Trial Examiner's Decision the phrase
"although there were no employees in a
collective-bargaining unit whose work required
protection."
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JAMES R HEMINGWAY, Trial Examiner Upon a charge
filed by Bob's Enterprises, Inc., on March 19, 1968,
against Culinary Alliance and Hotel Service Employees
Union Local 402 and the San Diego Civic Facilities
Corporation,' a complaint issued on June 25, 1968,
alleging that the said Union and Employer (herein called
the Corporation) had violated Section 8(e) of the National
Labor Relations Act, as amended, 29 U S.C. Sec. 151, et
sea , herein called the Act
In substance and effect, the complaint, which for the
most part pleaded evidentiary rather than ultimate facts,
alleged that the Respondent Union, herein called the
Union, and the Corporation entered into an agreement
that the latter should cease doing business with the
Charging Party, Bob's Enterprises, Inc., herein called
Bob's. The Union filed an answer on July 5, 1968, and the
Corporation filed its answer on July 8, 1968. The answer
of the Corporation admitted all the substantive facts
alleged in the complaint but denied the conclusions to be
drawn therefrom. The answer of the Union took issue
with certain alleged evidentiary facts and also denied the
conclusions to be drawn from the evidence
Pursuant to notice, a hearing was held in San Diego,
California, on September 18 and 19, 1968, before the
aforenamed Trial Examiner. At the opening of the hearing
the Union moved to dismiss the complaint on the ground
(1) that the collective-bargaining agreement with the
Corporation was entered into by the Local Joint Executive
Board rather than by Local 402 and that the Local Joint
Executive Board was not made a party to the present
action, (2) that the "challenged collective-bargaining
agreement has been so amended to remove the offensive
language or that language which was the basis of a
charge," and (3) that the Local Joint Executive Board,
herein called the Joint Board, had not entered into an
offensive agreement within the last 6 months, and that the
Joint Board could not now be joined because of the
provisions of Section 10(b) of the Act The Union's
motion to dismiss was denied on the ground that the only
matter which was self evident was that the Joint Board
was not a party to the proceeding, while the other matters
relied upon in support of the motion were matters of
'The charge named San Diego Community Concourse Civic Facilities
Corporation That was apparently taken from a letterhead No question of
variance has been raised and it appears to be acknowledged that two
names refer to the same entity The Corporation operates facilities known
as the Community Concourse ( herein called the Concourse), but this is not
part of the name of the Corporation
175 NLRB No. 26
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence which would have to be proved! During the
course of the hearing the Union was permitted to amend
its answer to deny that the Corporation was an employer
within the meaning of the Act. At the conclusion of the
hearing, the parties were given time within which to file
briefs with the Trial Examiner. Within an extended period
of time, briefs were received from the General Counsel
and from the Union.
From my observation of the witnesses and upon the
entire record in the case, I make the following:
FINDINGS OF FACT
I. THE FACTS OF COMMERCE
The complaint alleges and the answers admit that the
Corporation, in the course and conduct of its business,
annually receives substantial gross revenue from the
operation of its civic theater, convention center, and
exhibit hall, and that, at each, events and performances
coming from outside the State of California are frequently
held. It is in evidence that the most recent convention to
use the facilities before the date of the hearing was held in
July, 1968, by the Meat Cutters International, with
attendance of about 3500 persons. Within a year prior to
that, there was a convention of the Associated General
Contractors, an international organization, with a
registration of 3800 and one of the operating room nurses
with about 2700 persons. It is apparent that these
conventions would have a substantial impact upon
commerce.
Robert Crowther and his wife are joint owners of the
stock of three corporations, Lygars, Inc., which operates
Bob's International Restaurant in Chula Vista, California;
Bob's Enterprises, which operates Bob's Coffee Shop in
Chula Vista and Bob's Coffee Shop and Cake Room in El
Cajon, California; and Emberglo, Inc., which operates the
Emberglo Restaurant in El Centro and the Roberto
Restaurant in Calexico, both in California. The evidence
indicates that the five restaurants are operated, under the
managership of Crowther, as an integrated enterprise.
During the past year, the income from all five restaurants
exceeded $1,000,000, while the income from Bob's
Enterprises, alone, during that period exceeded $500,000.
During the 3-month period from May 1, 1968, to July 31,
1968, Armour and Company sold to Bob's Enterprises
meat valued at $18,000 all of which originated in Omaha,
Nebraska, or St. Joseph, Missouri, and during the past 3
years Bob's purchases from Armour and Company of
meat shipped from those points each year exceeded
$50,000. The evidence indicated that Bob's also purchases
liquors, canned goods, and other items which originate
outside the State of California.
No argument is made in the Union's brief that facts of
commerce are inadequate to give the Board jurisdiction.
Although no evidence was adduced to show the dollar
volume of the Corporation's business, the evidence as to it
suffices to support legal jurisdiction. To the extent that
the Board has fixed a minimum dollar amount as a
standard of asserting jurisdiction, the evidence regarding
the business of Bob's furnishes that?
'When the General Counsel rested his case in chief, the Union rested
without offering any evidence
'Bob's position in the case is identical with that of a secondary employer
in a Section 8(b)(4) case, where the latter ' s volume of business affecting
interstate commerce is often taken into account for the purpose of
satisfying the minimal requirements under the Board's jurisdictional
standards Local No 4, International Brotherhood of Electncal Workers
II. THE LABOR ORGANIZATION AND THE
COLLECTIVE-BARGAINING CONTRACT
The Union is a labor organization existing for the
purpose, among others, of engaging in collective
bargaining with employers on behalf of its members. It
negotiates such contracts but executes them only through
the Local Joint Executive Board, which is composed of
representatives of the Union and of Waiters and
Bartenders Union Local No. 500, herein called Local 500.
The Union's own representatives police the performance
of the contract as to its interests and the only grievances
referred to the Joint Board are the very serious ones or
the ones appealed to it.
On July 1, 1964, the Joint Board (the
secretary-treasurer of which is Dudley Wright, who is also
the secretary-treasurer of the Union, its chief executive
officer), on behalf of the Union and Local 500, and the
Corporation executed a collective-bargaining agreement
which contained a modified closed-shop clause which
permitted the hiring of nonunion members (if the unions
did not furnish labor within a limited time) provided that
the nonunion employees were immediately required to
become members upon hire. The term of the agreement
was for 2 years, with automatic 1-year renewals in the
absence of 60 days' written notice to the contrary. At the
time of the execution of this contract the Corporation had
no employees in the classifications covered by the contract
with the Joint Board, and the payments required to be
made by the Corporation into the Health and Welfare
Fund of the unions were deferred until October 1, 1964,
for the September payroll.'
Among other provisions in this agreement was one that
the Corporation should not engage any person by contract
to perform any part of the work covered by the
classifications listed therein unless such contract should
provide for not less than the rate of wages and the
maintenance of all conditions of the agreement and
"unless such persons shall have continuous recognized
agreements with the Union.i' Another clause prohibits the
contracting of work or services covered by the agreement
to "any other plant, person or nonunit employees, unless
otherwise provided in this agreement." The agreement
stated that the purpose of this provision was to preserve
work and job opportunities for employees covered by the
agreement. The agreement also contained a clause
providing that "it shall not be a violation of this
Agreement for any employee to refuse to pass a legally
established picket line...."
Ill. THE CORPORATION AS AN EMPLOYER WITHIN THE
MEANING OF SECTION 2(2) OF THE ACT
It is the contention of the Union that the Corporation
is a branch of the municipal government of the City of
San Diego and, therefore, is excluded from the definition
of "employer" in Section 2(2) of the Act. The facts are as
follows:
(Tn-Cities Broadcasting Company), 138 NLRB 239, Building and
Construction Trades Council, 139 NLRB 1370
'Since more than 6 months after the execution of this contract or any
renewal had elapsed before the charge was filed, the legality of the making
of this contract originally or on any renewal date was not put into issue
'Since the contract prohibits altogether the making of individual
contracts with any member of the Union, and in view of the quoted words,
I interpret this provision as applying to persons permitted by the
Corporation to operate concession stands or , arguably, to serve at
banquets.
CULINARY ALLIANCE LOCAL 402 163
The Corporation is a nonprofit, nonstock, tax exempt,'
California corporation, incorporated in May, 1964,' by a
group of public-minded citizens to operate the facilities
hereinafter described. Its administrative functions are
directed by a Board of Trustees, composed of seven
members. In addition, a representative of the City
Manager sits on the board as an ex officio member in an
advisory capacity and without voting privilege. The seven
private citizens, who formed a committee called the City
Center Advisory Committee, when the Community
Concourse was being planned, were the incorporators and
became the original trustees!
The facilities known as the San Diego Community
Concourse are located on a two-square block area in
downtown San Diego. The City owns the land. On this
location rises a 12-story city administration building,
occupying about one quarter of the grounds. The offices
of the Corporation are in a four-story building adjoining
the city administration building but accessible from the
lobby of the city administration building. Access to other
portions of the Concourse is from the plaza. There are no
inside, connecting entrances to the several facilities from
the city administration building. In the four-story building
are a convention hall, with upstairs meeting rooms, and
an exhibit hall, separated from the convention hall by a
wide lobby. Across a plaza from the convention hall there
is a theater building. At the far end of the exhibit hall and
rising above it is an 11-story parking garage with capacity
for 1,000 cars. The latter is not operated by the
Corporation; it is operated by a City concessionaire.
The evidence does not show the source of the funds
which were used to construct the several buildings
described, but the evidence shows that funds "to
completer the Concourse were raised by the organizing
committee. Funds have also been raised privately for
fixtures and equipment from time to time. The buildings
are the property of the City. Only personal property
supplied by the Corporation belongs to it.
On June 8, 1964, presumably near the completion of
the buildings, the City entered into an agreement with the
Corporation providing that the Corporation would
establish an "annual management program subject to
approval of the City Council . . . to promote and operate
the convention facility, terrace, plaza, the exhibition hall
and the civic theatre." Under this agreement, all revenue
received from use of the facilities are kept in a separate
bank account in the name of the Corporation and are
used for maintenance and operating expenses, but if the
revenue is insufficient in any month, the City is obliged to
make up the deficit from funds annually appropriated for
this purpose, to the extent of the appropriation. At the
end of each year the Corporation is required to transfer
any excess of operating income over expenses to a reserve
account to be used for acquisition or construction of
capital equipment and improvements approved by the City
Manager. Any unexpended reserve fund in excess of
$50,000 is required to be paid to the City. The City was to
advance $25,000 for operating expenses (initially), and the
Corporation is to file each month with the City Manager
a statement of income and expenses . The City has the
'It is exempt from Federal Income Tax as well as from State Tax.
'The Articles of Incorporation are dated April 27, 1964, but were filed
May 6, 1964.
'The bylaws of the Corporation provide for selection of the trustees by
the members; but it does not appear whether or not there are voting
members in excess of the number of trustees.
'The Union, in its brief, infers that this means "to build ." To me, it
means "to finish work already started."
right to audit the Corporation's accounts but has never
done so. Revenues are raised by the City by means of a
room tax.' °
The aforesaid agreement also provides for the
employment by the Corporation of a manager, acceptable
to the City and not removable without consent of the
City, and it requires written forms (approved by the City
Manager or City Attorney) to be used for agreements for
use of the premises, i.e. leases.
The Cororation is also required to hold harmless the
City from any damage or injury resulting from operation
or use of the premises, except damage or injury caused by
a City employee, to the extent of $1,000,000 for the injury
to one person and $500,000 for property damage.
The agreement further provides that the Corporation
shall have complete discretion in determining which
operations meet the standards accepted by the City for
leasing policy, which requests should be refused as being
contrary to the leasing policy, and in determining other
leasing problems requiring the exercise of judgment. The
City has no authority to hire or discharge the manager or
any other employees of the Corporation. Through the
executive director (the manager), the Corporation hires
maintenance and service employees. It has entered into
collective-bargaining contracts with labor organizations.
The promotion of convention business is done by the
San Diego Convention and Tourist Bureau, a separate
organization. Entertainment attractions are arranged for
by the Corporation's executive director. Each area of the
Concourse has been assigned a rental fee by the
Corporation. This is the revenue which goes into the
Corporation's operating bank account. The organizations
or persons licensed to use the premises are called tenants.
They are required to sign a lease agreement in advance of
use. The forms of such agreements are required by the
agreement between the City and the Corporation to be
approved by the City in advance.
The Union argues that this case is to be distinguished
from Virginia Pilots Association, 159 NLRB 142, where
the Board found the Association to be an employer under
Section 2(2) of the Act, on the ground that the
Association in that case, according to the Union's brief,
"had the power to establish its own personnel policies and
actually hired and fired employees free of state
regulation," whereas, the Union argues: "In this case,
Respondent Employer has no such power. Only the City
Council may hire and fire the Corporation's principal
employee." But the City Council does not, in fact, hire
that employee. Approval by the City of the Corporation's
executive director refers only to approval of the
Corporation's selection of a manager when he is initially
employed; it does not mean that the City, itself, may
select the person to fill that job, determine his
compensation, or terminate him, even if the City does
retain a voice in his termination by requiring its approval
thereof. Since the facilities used by the Corporation are all
on the City's property, the City, in effect, is a lessor and
the Corporation is a lessee . The City is entitled to some
quid pro quo, insignificant though it may be, for the use
of its real property. Since the City is required to make up
deficits in the cost of operation, it is naturally concerned
with the Corporation's selection of a manager who is
qualified to operate the facilities in a way to avoid such a
deficit. But after the Corporation hires such a manager,
the City has no right to dictate any of that manager's
"I infer that this is the tax added to the charge for rooms by hotels and
transients' lodging houses.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actions or decisions, has no right to fix his compensation,
or to require his termination The manager is accountable
only to the Corporation's trustees. The Corporation is
given a free hand in determining its operating policy, and
this includes its labor policy.
The Union cites NASA Exchange-MSC Exchange
Council, 148 NLRB 1190, as in point. I find this case to
be distinguishable. There the director of the Manned
Spacecraft Center established the Exchange Council by
directive, describing it as a governmental instrumentality.
The director appointed seven MSC employees to the
Exchange Council and they served at his pleasure. That
Council selected the manager to direct the cafeteria
operations involved The purpose of the Exchange Council
was to operate activities which would contribute to the
efficiency, welfare, and morale of the Manned Spacecraft
Center personnel. Thus, that Council was set up for the
benefit of employees of a governmental instrumentality. In
contrast, the employees of the City in this case, receive no
direct benefit. The Corporation was set up by private
individuals having no connection with the City as a
political or governmental entity. The objectives of the
Corporation are more analogous to those of a Chamber of
Commerce than of a governmental instrumentality. They
are commercial in character, even though the Corporation
is not one for profit. Profit is not a controlling factor in
determining whether or not the Board has jurisdiction "
The General Counsel argues that the case at hand is
more similar to the case of Local Joint Executive Board
(Little Luigi's Italian Foods), 153 NLRB 392, than any
other. There are many points of similarity between that
case and this, a sufficient number of points to find that
that decision is controlling in this case. After the Seattle
World's Fair, a corporation was formed to operate the
land and facilities owned by the City of Seattle on which
had been the site of the World's Fair, and that
Corporation, which was a nonprofit nonstock corporation,
entered into several agreements with the City of Seattle,
(1) a lease, (2) a service agreement, and (3) a concession
agreement. The functions of that Corporation were
directed and administered by a board of trustees
composed of private citizens. It was held that that
Corporation was an employer within the meaning of
Section 2(2) of the Act.' = Even if that case were not
clearly dispositive of the issue here, on the evidence here
presented, I would conclude, and hereby do conclude and
find, that the Corporation is an employer within the
meaning of Section 2(2) of the Act.
IV THE UNFAIR LABOR PRACTICES
A. Hiring of Employees for Banquets and
Refreshment Stands
When the Concourse operations began in 1964, the
Corporation, pursuant to the agreement between it and
the Joint Council described in Section II above, hired
union members to work at the various refreshment
vending stands on the grounds These employees, I
conclude, would have been the ones described in Section
5(a) of the union agreement, the list of classifications and
rates " The evidence is very vague as to whether or not
"Woods Hole Oceanographic Institution , 143 NLRB 568
"See also Truckee-Carson Irrigation District, 164 NLRB No 152,
Randolph Electric Membership Corporation, 145 NLRB 158, N L.R B v
Howard Johnson, Inc, 135 NLRB 1260, enfd sub nom N L R B v
Howard Johnson Company, 317 F 2d I (C A 3)
the Corporation ever did hire, or even contemplated hiring
culinary workers (kitchen help and waiters or waitresses)
to work at banquets other than through caterers From
the outset, in September, 1964, banquet type meals at the
Concourse were served by outside caterers who were
selected on a nondiscriminatory basis by tenants who had
contracted for use of the premises, for a fee, from the
Corporation. Although the record is not clear as to who
hired and paid for the kitchen employees and the waiters
and waitresses for banquet type meals during the period
between September, 1964, and November 12, 1965, I infer
that this was done by the caterer selected, with approval
of the Corporation, by the tenants. Among other caterers
who served banquet type meals during that period of time,
was Bob's, the Charging Party herein. My inference that
the Corporation did not hire kitchen workers and waiters
during that period of time is based in part upon the fact
that the agreement which the Corporation signed with the
Joint Board described the appropriate unit to consist of
employees "who are employed in the classifications set
forth in Section 5 hereof." Section 5(a) lists employee
classifications and rates of pay which indicate that the
employees covered by the agreement would work at
vending stands rather than in banquet halls, with the
possible exception of bartenders and cocktail waitresses."
However, Section 5(b) of the union agreement contains a
paragraph reading:"Classifications: Under the Jurisdiction
of LocalNo.402 andNo.500 notcovered in this contract will
be paid at the rate in exhibit A in the current Hotel and
Restaurant Agreement." Despite the inclusion of this
paragraph, which the Union contends is an incorporation
by reference, I infer that neither the Joint Council, the
Union, nor the Corporation expected that the Corporation
would employ employees in the classifications listed under
the Hotel and Restaurant Agreement. If it had been
expected that the Corporation would have such employees,
it would appear logical that the Joint Board would have
required the Corporation to sign the Hotel and Restaurant
Agreement, itself. There is no evidence that the
Corporation ever had in its employ during the first year of
its operations any employees other than those who would
fall in the classifications listed in Section 5(a) of the
agreement.
On November 12, 1965, because of some problem
regarding a license to sell alcoholic beverages, the
Corporation changed its policy on nonexclusive catering
and decided to make a contract with an exclusive caterer,
not only for banquet type meals but also for all food and
beverage sales at the vending stands To this end, the
Corporation entered into a 2-year contract with Vacation
Village, Inc., under which contract it turned over to
Vacation Village all such services, and Vacation Village
took over all existing employees covered by Section 5(a)
of the collective-bargaining agreement between the
Corporation and the Joint Board Vacation Village was
one of the caterers who had served banquets during the
first year of the Corporation's operations, and it had an
agreement with the Union which antedated the opening of
the Concourse. During the 2-year period that Vacation
Village held this contract, the Corporation employed no
employees that would come under the jurisdiction of either
"The classifications listed are "beer vendors , soft drink vendors,
popcorn , hot dogs, candy all other commodities, ice cream , peanuts [for all
of which the rates were fixed as a commission or a percentage of sales],
commissary helpers, dish-out men, countermen & countergirls , stand men
or women, stand managers, bartenders , and cocktail waitresses " All
except stand women were under the jurisdiction of Local 500.
"See footnote 13.
CULINARY ALLIANCE LOCAL 402 165
union represented by the Joint Board. No separate
agreement was ever negotiated by the Union with anyone
to apply to catering work at the Concourse alone, and
neither the Joint Board nor the Union raised objection to
the contract between the Corporation and Vacation
Village.
At the expiration of its contract with Vacation Village,
on November 12, 1967, the Corporation allowed the
agreement to lapse. It then adopted anew its original open
catering policy for banquet type affairs To operate the
refreshment stands, the Corporation entered into an
agreement with Servomation-Duchess, Inc., of Berkeley,
California. Presumably, the latter took over the same
employees as those employed by Vacation Village. The
Corporation retained one of Vacation Village's employees
for itself. It hired him as kitchen manager on a salary
basis Apparently, the Corporation considered this man,
because of his supervisory status and salary compensation
to be outside of the contract with the Joint Council, but
this man continued to be a member of the Union. After
he had been on the Corporation's payroll for 2 or 3
months, the Union insisted that the Corporation make
payments into its Health and Welfare Fund for the
kitchen manager The Corporation acceded and removed
the kitchen manager from the coverage it had been
providing for him and made payments, including back
payments, to the Union's Health and Welfare Fund. The
Corporation's attitude throughout appeared to be one of
avoiding any friction with either union represented by the
Joint Board. I do not regard the Corporation's
capitulation on this point as proving that the kitchen
manager was, in fact, within the unit covered by the
collective-bargaining agreement.
B. Agreement not to do Business With Bob's
The Corporation did not terminate its contract with the
Joint Board at the end of the 2-year term thereof or at the
end of any annual term thereafter. Nor did the Joint
Board or the Union give notice of termination at any such
time Therefore, the contract was automatically renewed.
The third automatic renewal took effect on July 1, 1968,
and the contract was still claimed to be in force at the
time of the hearing herein.
When, about mid-August 1967, the Corporation
decided to return to the policy of nonexclusive catering as
of November 13, 1967, it made up a list of authorized
caterers which included those who had served
banquet-type meals during the first year of operation or
who were equipped to serve large groups. This list
contained the names of nine caterers with addresses and
names of individuals at each caterer with whom contact
could be made for information or arrangement. At the
bottom of this list appears- "Note: Caterers listed above
are authorized to dispense food and beverage at the
Community Concourse after November 13, 1967." This
list was prepared for distribution to prospective tenants as
of the expiration of the contract between the Corporation
and the Vacation Village It was the Corporation's
practice also to furnish such lists to the San Diego
Convention and Tourist Bureau for distribution to
prospective tenants.
Before distribution of this list, however, Dudley Wright,
the chief executive officer of both the Joint Board and the
Union, called Byron Trimble, the executive director of the
Corporation, on about October 18, 1967, and made an
appointment to speak with him. Wright testified that the
reason for his making the appointment was that, the week
before, a business agent had reported to him that union
members had contacted her and complained that "people
were doing catering, some of the catering was being done
at the Community Concourse, such as Bob's, Boggs, and
various others that weren't paying their wages and fringe
benefits that the Union was getting from other caterers."
Obviously, this could not have been true because no one
else but Vacation Village was doing any catering in 1967
before mid-November when the Vacation Village contract
expired, and this was after Wright's call to Trimble
Furthermore, Wright conceded that he did not know what
wages or fringe benefits Bob's paid its employees. I
conclude that Wright had been advised of the caterers' list
as prepared by the Corporation and that this alone moved
him to call Trimble.
At his conference with Trimble in October, 1967,
Wright gave Trimble a copy of the Corporation's contract
with the Joint Board and pointed out a clause pertaining
to the use of culinary workers and told Trimble that the
Corporation was in violation of the contract because the
caterers list contained names of caterers who were not
employers in good standing with the Union. Wright and
Trimble then discussed the names of the specific caterers
on the list as prepared in August 1967. During the
discussion, Trimble would write down the word "yes" or
"no" opposite the name of each caterer on the list,
depending upon Wright's statement that the caterer was
or was not in good standing with the Union. These
notations show that the Union disapproved of four of the
nine caterers listed, one of those disapproved of being
Bob's.
It may be assumed that the Corporation had already
sent copies of the list as originally composed to each of
the caterers listed thereon, because following his
conference with Wright, Trimble wrote to Bob's on
October 18, 1967, stating:
Mr. Dudley Wright, secretary -treasurer of the
Culinary Workers Union Local 402, appeared in this
office today and demanded that your organization be
removed from our authorized caterers list. Mr. Wright
advised that he was willing to recognize Bob's Catering
as an authorized caterer if you care to contact him and
work out the details.
I have discussed this matter with our attorneys and
requested that they investigate Mr. Wright's action;
however, I do wish to make you aware that this
condition is in existence.
To avoid embarrassment or inconvenience to a
prospective user of the Concourse, it would seem wise
to discontinue sending out the authorized caterers list
containing your name until this matter is resolved. If
you do not agree with this arrangement, it is suggested
that you contact this office immediately
Under date of October 20, 1967, the attorney for the
Joint Council and the Union wrote to Trimble, calling
Trimble's attention to Section 2, paragraph (d), of the
union contract, which provides, in part, "All subleased
work, including all catering, shall be performed by
employees in the bargaining unit set forth in this contract
" The letter then proceeds: "This provision requires
that only those caterers listed in the brochure submitted to
you by the Local Joint Executive Board may perform
work contracted out within the meaning of Section 2 of
this Agreement."
On October 26, 1967, the attorney for the Corporation,
James Smith, wrote to Jerry Williams, the attorney for
the Joint Board and the Union, stating that he had been
informed by the San Diego Employers Association,
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representing Bob's, that removing Bob's name from the
list would be a violation of Section 8(b)(4)[ii](B) of the
National Labor Relations Act In his letter, Smith
requested a meeting with Williams to discuss the problem.
As a result of this request for an appointment, Smith
met with Williams on November 10, 1967. After telling
Williams of the foregoing letter which he had received
from the San Diego Employers Association, Smith told
Williams that the Corporation was neutral, and he
suggested to Williams that the Union permit nonunion
caterers to hire union members when catering at the
Concourse. Williams replied, according to Smith, that he
did not think it would be in his client's best interests for
him to recommend that course of procedure. Rather,
Williams told Smith, he would advise his client that "that
conduct" on the part of the Corporation would be a
breach of its contract with the Union and that he would
advise the Union to take whatever appropriate action was
necessary to make the Corpoiation live up to the
contract. 's
Following his conference with Williams, Smith advised
the Corporation to remove from the catering list the
names of caterers to which an objection had been raised
by the Union. Smith then wrote to the San Diego
Employers Association, notifying it of the conference he
had had with the Union's attorney, and stating that,
despite the contention of the Employers Association, the
Union would not withdraw its demand. Smith's letter then
continued. "We have advised the Community Concourse
that the Union's claim is an arguable one under the
existing collective-bargaining agreement, and the San
Diego Civic Facilities Corporation has decided that to
avoid confrontation with the union and the cost of
possible litigation, the name of Bob's Catering will be
removed from the authorized list until such time as his
employees working at the Community Concourse are
employed in accordance with the agreement between our
client and the union."
On November 13, 1967, the Corporation issued a new
list of authorized caterers, which stated that the
collective-bargaining agreement with the Union required
the Corporation to use only those whose employees were
covered by that agreement. A note at the bottom of the
list stated that it superseded all prior lists. On the same
day, Trimble wrote to a representative of Bob's, informing
him of the legal advice which had been received and of the
decision by the Corporation to list only those caterers who
would provide service with employees covered by the
"Williams objected to testimony as to what was said at this conference
on the ground that the conversation was, in his opinion , privileged under
the California statutes As those statutes were represented to the Trial
Examiner at the hearing , it appeared that they might restrict such
testimony However, since Rule 43 of the Federal Rules of Civil Procedure
provides that the statute or rule which favors the reception of evidence
shall govern , I received the testimony as not a privileged communication
under Federal law Since the close of the hearing, I have examined the
California statutes more closely , and I have reached the conclusion that the
evidence would not, even if the California statutes controlled, be
unreceivablc . Ihe only portion of those statutes which I deem to be even
arguably applicable is a section concerning an offer to compromise I do
not interpret Smith's suggestion to Williams, however, to be an offer of
compromise or settlement But, even if it were, it would be inadmissible
only for the purpose of proving liability of Smith's client for loss or
damage It would, therefore , be the Corporation that would be the client
who could claim the privilege , if one existed - not Williams Even as
between attorney and client , it is not every communication that is
privileged . One intended to be communicated to another person (which was
the nature of the communication here ) would definitely be outside the
scope of a privileged communication.
Corporation's collective-bargaining agreement as
construed by the Union. Trimble closed his letter with the
statement "Should you work out an arrangement with the
union, please advise me at once and, with the concurrence
of the union, the name of your firm shall again be placed
on the authorized list of caterers."
On about December 19 or 20, 1967, Robert Crowther,
president of Bob's, made an appointment to "peak with
Wright. When he arrived, Wright was alone Crowther
asked what he would have to do to qualify in order to
cater at the Concourse. According to Wright, he replied
that he did not know and that Crowther then asked if he
could hire through the Union's hall. Before Wright replied
to this question, Williams arrived and attempted to
question Crowther about the letter written by the San
Diego Employers Association which claimed that the
Corporation' s action in omitting Bob's name from the list
of approved caterers was a violation of the Act. Crowther
said he was present only to find out what he must do to
be able to cater at the Concourse. Williams and Wright
left the room and, when they returned, Williams, in some
form of language, informed Crowther that there was
nothing he could do."
On January 19, 1968, Thomas Puffer of the San Diego
Employers Association wrote to Wright on behalf of
Bob's, stating that Crowther (Bob's) had advised him that
Crowther would be willing to hire people out of the
Union's hiring hall for work which he might do at the
Concourse. He requested a reply if this arrangement met
with the Union's approval, but stated that if he did no:
hear from Wright within 10 working days he would
assume that the Union would not approve and that he
would be forced to take other action.
Following November 13, 1967, Bob's was not
authorized to (and so did not) cater at the Concourse,
except as hereinafter related. As previously related, the
charge herein was filed on March 19, 1968, and the
complaint issued on June 25, 1968. The date of
commencement of the proceeding for a temporary
injunction under Section 10(1) of the Act is not in
evidence, but reference thereto is made in a letter dated
August 14, 1968, written by Trimble to Wright, enclosing
a revision of the authonzed caterer's list. The letter stated:
This letter of understanding will confirm our agreement
that during pendency of the court action and the
National Labor Relations Board proceedings involving
Bob's Enterprises, the attached form of authorized
caterers will be used by the San Diego Civic Facilities
Corporation and will be acceptable to the Union.
The list enclosed with this letter named all those caterers
who had been named in the list of November 13, 1967,
plus two more who had been on the list of August 15,
1967, which the Union had disapproved - Boggs Bros.
and Pernico's, but who had been eliminated from the
November 13, 1967, list Between November 13, 1967,
and August 14, 1968, Boggs Bros. and Pernico's had
signed contracts with the Union." At the bottom of the
August 14, 1968, list appears the following:
"Crowther testified that, when they returned to the room, "I was
advised that I could not" and that he asked if that was because of his
present or past affiliations with nonunion organizations (referring to his
several corporations ) and that Williams answered , "Yes " According to
Wright, Williams told Crowther that the Union did not represent his
employees , so it could make no agreement with him I find it unnecessary
to resolve the conflict
"Wright testified that before they executed the contract with the Union
these employers had not been paying "the wage scale and fringe benefits to
our people " Wright admitted, however, that he did not know what wage
scale they had been paying
CULINARY ALLIANCE LOCAL 402 167
The following named employer does not have an
agreement with the Culinary Union and for that reason
may or may not be subject to picketing at your event by
that Union. .
There followed the name, address, and telephone number
of Bob's, below which was a note that all the named
caterers "listed above" were authorized to dispense food
and beverages at the Concourse after August 14, 1968.
The agreement mentioned in Trimble's letter to Wright
was confirmed by a letter from Wright to Trimble on
August 15, 1968, written with a Joint Board letterhead.
Between August 15 and 20, 1968, the list of approved
caterers was again revised by the Corporation. In this
revision, the name, address, and telephone number of
Bob's was listed immediately after the other seven
approved caterers but with an asterisk before the name,
Bob's Enterprises, Inc. The asterisk was used for a
footnote reading:
The local joint executive board comprising the Culinary
Alliance and Hotel Service Employees, Local 402, and
Bartenders Union Local 500, advised that this employer
is not signatory to its current contract. The Community
Concourse takes no position with respect to this matter,
does not know whether a labor dispute exists involving
this employer and cannot assume responsibility in the
event of any such disputes.
Thereafter, about the end of August 1968, pursuant to
a court order in the proceeding for a temporary
injunction, the list of approved caterers was again
changed. This time it was set up in the same form as the
original list which had been prepared by the Corporation
on August 15, 1967, with the exception that one of the
caterers listed in that list is not included in the latest list;
but Bob's Enterprises is listed in the second position, in
alphabetical order, and there is no qualification
whatsoever in this list.
On August 30, 1968, at approximately the same time as
the revision to the form of the approved caterers list
issued pursuant to court order, the Corporation and the
Joint Board executed an amendment to their
collective-bargaining agreement. Among other provisions
in this amendment is the following language:
2. . In the event the Employer [the Corporation]
includes any caterer on a list of authorized caterers who
offers less than prevailing wages and working conditions
as evidenced by current Union contracts, such caterer
shall be listed with the following footnote:
The Local Joint Executive Board of San Diego
(comprising Culinary Local 402 and Bartenders Local
500), advises that this employer is not signatory to its
current contract. The Community Concourse takes no
positions with respect to this matter, does not know
whether a labor dispute exists, and cannot assume
responsibility in the event of any such dispute
involving this employer and the Union
3. The Union does not and shall not request or demand
that any caterer be removed from any list of authorized
caterers, nor does the Union request or demand, either
directly or indirectly, that the Employer cease or refrain
from doing business with any other person.
The parties intend by this amendment to comply with
Section 8(e) of the amended National Labor Relations
Board, and this amendment, and the contract of which
it is an integral part, shall be construed to comply with
the National Labor Relations Act and Section 8(e)
thereof.
The Union contends that this amendment makes this case
moot.
C. Arguments and Conclusions
Since there would be no purpose of passing upon other
arguments if the contention that the case is moot should
prevail, I shall first consider that contention. Such
contention presupposes, at least for the sake of argument,
that there was a case which could become moot. The
Union's argument apparently is that even if, at some time
in the past, it had violated the Act, the amendment to the
collective-bargaining agreement above set forth would
constitute a complete remedy which would render the case
moot. Without deciding at this point the validity of the
Union's assumption that it had, by the amended
agreement, dissipated the effects of the unfair labor
practice, I find that the case was in no event rendered
moot by such amendment.18 If there was a violation of the
Act, a Board ordered remedy is still appropriate,
regardless of conduct amounting to compliance or alleged
compliance "
The Union contends that the Section 10(b) limitation
bars any proceeding in this case, but that, even if that
limitation did not apply, it was the Joint Board and not
the Union which made the agreement and that any
allegation of violation of Section 8(e') of the Act
should have been against the Joint Board and not against
the Union. With respect to the limitation under Section
10(b) of the Act, this would apply if the case here turned
solely on the making or the annual renewal of the original
contract, but where there is a reaffirmation of, or effort to
enforce, the original agreement, Section 10(b) does not
bar a proceeding based upon the readoption or attempted
enforcement within the period of 6 months before the
filing of the charge." So far as the Joint Board i5
concerned, Williams' letter of October 20, 1967, to
Trimble of the Corporation, reasserting claimed rights of
the Union under the original agreement, would eliminate
any defense based on Section 10(b) of the Act, since the 6
months' period would run back to September 19, 1967.
And later reaffirmation of the agreement and insistance
upon compliance may be found in Williams' statement to
Smith at their conference of November 10, 1967. This
discussion, I note, centered not on what the Joint Board
would do, but on what the Union would do.
The contention that the Union alone, without the Joint
Board, should not be subject to these proceedings because
it was the Joint Board and not the Union who signed the
original contract (which was automatically renewed)
presupposes that the'Union is a stranger to the agreement.
The Union's International is the Hotel & Restaurant
Employees and Bartenders Union The Constitution of the
International requires the formation of a joint board when
more than one local exists in the same municipal area.
Many years ago (about 1912), the Union and Local 500
"United Association Pipe Fitters Local Union No 539, 154 NLRB 314,
315
"N L R B v. Mexia Textile Mills, Inc, 339 US 567, 571, G & W
Electric Speciality Co v N L R B, 360 F 2d 873 (C A. 7), Laundry, Dry
Cleaning , Industrial, etc , Drivers, Local 209 IBT (East Bay Dry Cleaners
Assn ), 167 NLRB No 6
"Brotherhood of Painters, Decorators and Paperhangers of America,
Local No 823, 161 NLRB 620, Amalgamated Lithographers of America,
137 NLRB 1663, Sheet Metal Workers, Local 216. 172 NLRB No 6
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were one union . When Local 500 was created, the Joint
Board was formed. In its bylaws, the Joint Board's
purpose is stated to be to "secure unity of action." The
bylaws of the Joint Board provide that it shall have
authority to enter into collective-bargaining agreements
with the employers "on behalf of affiliated local unions."
These bylaws also provide that the Joint Board
(representatives of which are six chosen representatives of
the two locals)' shall have final responsibility and
authority to enforce the wage scales and other terms and
conditions of employment, and that any violation or
grievances "of general application and/or concern" shall
not be settled by any local union without prior consent of
the Board. From the quoted words, as well as from the
testimony of Wright, I find that the Union may settle
alleged violations of contract or grievances unless they are
of general concern - that is, of concern to other locals.
Despite the Union's contention that the Joint Board was a
principal in an agreement in which the Union had no
enforcible right, I find that the Joint Board was in the
position of an agent for locals in its locality in all matters
except those affecting all locals alike.S2 The bylaws of the
Union provide that one purpose of the Union is to
"engage in collective bargaining with employers in order
to establish and maintain equitable wages, hours, and
conditions of employment. ." The Constitution of the
Union's International provides: "All contract proposals
shall, before their presentation, negotiation, enforcement,
or renewal, be approved by the Joint Board . . . and no
agreement or settlement shall be made by or on behalf of
any Local except by consent of the Joint Board...." It is
apparent that the right of locals to negotiate, enforce, or
renew contract proposals is limited only by the
requirement for approval of the Joint Board. The
representatives of the respective locals, in fact, do deal
with employers in presenting grievances and contract
disputes affecting their own members. The representatives
of the locals may (although they normally do not)
negotiate agreements with employers,2J subject to approval
of the Joint Board in the interest of maintaining
uniformity of rates and employment conditions among
locals. In many respects the locals are acting as principals
and not as strangers to the collective-bargaining
agreements even though the Joint Board executes the
formal contracts on their behalf.
On the facts in this case, no remedy is needed against
Local 500. The contract was sought to be applied only
insofar as the Union sought to take advantage of it to
secure future employment for its own members. Hence,
the Union is the proper respondent. A remedy against the
Joint Board alone would not deter the Union from
asserting rights under the contract. Even if the evidence
showed that Williams and Wright assumed to act only for
the Joint Board, the Joint Board also was acting as an
agent for the Union, and the Union would be bound by
"The signers of the collective-bargaining agreement on behalf of the
Joint Board are Wright, who is secretary-treasurer of the Joint Board and
also of the Union, and Gus Mureo, who is president of the Joint Board
and secretary- treasurer of Local 500. The secretary- treasurer is the chief
executive officer. The president of Local 402 is the vice president of the
Joint Board.
"An analogy may be found in the case of an employer association which
negotiates a contract on behalf of its members which is the contract of
each . N.L.R.B.'v. Sterling Furniture Company, 202 F.2d 41 (C.A. 9); Milk
Drivers & Dairy Employees, Local Union 537, 147 NLRB 230.
"Since Wright wears two hats, it might be difficult to determine whether
he is representing the Union or the Joint Board in negotiations in the
absence of a definite prior understanding.
acts of its agents performed on its behalf and would be in
a position to claim the rights created on its behalf. But, in
fact, those same agents, Wright and Williams, were also
the conceded agents of the Union, for Wright is the chief
executive officer (secretary-treasurer) not only of the Joint
Board but also the Union, and Williams is obviously
representing both. Since their efforts were addressed to
securing rights for the Union alone, the Union is bound
by their acts.
The General Counsel has asserted that the theory of the
case is based not on the illegal contract but is based on an
"ad hoc" agreement between the Union and the
Corporation. This theory, I judge, was adopted to avoid
the defense that only the Joint Board was the party to the
contract. I notice that the General Counsel in his brief,
however, also cites cases to support the theory of a
reaffirmation or attempted enforcement of an illegal
agreement. I see no reason for distinguishing between an
ad hoc agreement and an assertion of right under an
agreement designed to create direct rights in the Union. In
either event, the limitation of Section 10(b) is inapplicable
here, and I find that it is immaterial that the Joint Board
is not a party, for whether under the theory of an ad hoc
agreement or reaffirmation, I find that the Union was
asserting contract rights which would be violative of
Section 8(e) of the Act.
The Union contends that the contract was one for
protection of unit work and for maintenance of area
standards. Protection of unit work is no defense here,
however, because the Corporation never hired the
employees used by caterers before November 12, 1967,
and, except for the kitchen manager, it hired none after
that date. Hence, there is no fairly claimable unit work.2a
The restriction upon "subleased" work to caterers is,
therefore, a mere attempt to acquire new work, if not also
a restriction upon any dealing with caterers who do not
have agreements with the Union. The Union's objection to
Bob's and its pressure upon the Corporation to exclude
Bob's from the list of caterers authorized by the
Corporation to do business at the Concourse had nothing
to do with protection of the work of the kitchen manager,
even if a one-man unit could be recognized. Since there
was no unit work to be protected, the object of the Union
in attempting to enforce certain provisions in the
collective-bargaining agreement likewise cannot be said to
be to protect area standards either. But even if that could
be argued, the circumstances here disclose that protection
of area standards was not the objective of the Union.
Williams' letter of October 20, 1967, expressly requires
compliance with Section 2(d) and Section 10 of the
contract. Section 10 prohibits subcontracting of work
unless otherwise provided in the contract. Section 4(c) of
the contract provides that the corporation should not
engage any person by contract to perform any part of the
work covered by the classification described unless such
person "shall have continuous agreements with the
Union." Section 2(d) provides that all subleased work,
including all catering, should be performed by employees
in the bargaining unit set forth in the contract. Assuming
that the latter clause might be legal if the Corporation
were the employer of employees such as those employed
by caterers, the Corporation never had employees
designed to be protected by this clause. It is, therefore,
designed, not to prevent subcontracting and not to protect
unit work, but to benefit its union members generally or
to compel caterers to sign the Union's contract. That the
";'' '.et Metal Workers Union , Local 216 , 172 NLRB No. 6.
CULINARY ALLIANCE LOCAL 402 169
Union's intention goes beyond an effort to preserve work
for its members is evident, and its design to use pressure
to cause caterers to sign its contract is evident from its
rejection of any proposal for the hire of union members
through the Union's hiring hall by caterers who had no
collective-bargaining agreement with the Union. Yet, the
Union withdrew its objection to the listing of those
caterers who signed such an agreement in 1968, thus
revealing clearly that the Union's target was to get
caterers to sign contracts with it, not to protect unit work
or even to hire its members. The Union admittedly knew
nothing about the wages, hours, or working conditions of
Bob's employees. Despite the Union's assertion, therefore,
that it was concerned with maintenance of area standards,
it demonstrated that the only standards it was interested
in were those provided in its own collective-bargaining
agreement. I find, therefore, that by agreeing with, and
insisting upon compliance therewith by the Corporation
that the Corporation would either not permit Bob's to
cater at the Concourse or would permit it to cater only
with an implied threat of picketing which would be
violative of Section 8(b)(4)(ii)(b) of the Act, the Union has
engaged in conduct proscribed by Section 8(e) of the Act. 2S
By agreeing to such restriction upon doing business with
Bob's, the Corporation, likewise, has violated Section 8(e)
of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth above, in
section IV, taken in connection with the operations
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
Since I have found that the Respondents have engaged
in unfair labor practices , I shall recommend an order that
they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Although it is customary to require , as a part of the
affirmative remedy, the posting of a notice , this is not
appropriate in the case of the Corporation , because it has
no employees in an appropriate unit on whose behalf it
could enter into a collective-bargaining agreement with the
Union . The affirmative remedy as to the Corporation will,
therefore , be limited to giving notice to caterers
authorized and, by capability , qualified , to serve banquet
type meals at the Concourse that it will not enter into, or
give effect to, any agreement with the Union whereby it is
required to refrain from doing business with any of them
or whereby it would be restrained from doing business
with any of them.
CONCLUSIONS OF LAW
1. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent Corporation and Bob's are employers
within the meaning of Section 2(2) of the Act.
3. The Corporation and Bob's are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
4. By agreeing that the Corporation should not list
Bob's as a caterer authorized to use the facilities of the
Corporation and by agreeing that Bob's might be listed, if
at all, only with a warning that it might be picketed, the
Respondents have engaged in, and are engaging in, unfair
labor practices within the meaning of Section 8(e) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record in this
proceeding, I recommend that:
A. The Respondent Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from entering into, or giving effect
to, any agreement with the Union or any other labor
organization by which the Respondent Corporation is
required to, or agrees to, refrain from doing business with
Bob's or any other employer engaged in commerce within
the meaning of the Act which is prohibited by Section 8(e)
of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
Notify Bob's that it will not agree with the Union, in
violation of Section 8(e) of the Act, to cease doing
business with any caterer nor will it designate any caterer
in a list of authorized caterers as one which does not have
an agreement with the Union or as one who might be
picketed.
B. The Respondent Union, its officers, representatives,
successors, and assigns, shall:
1. Cease and desist from entering into any agreement
or implementing or attempting to enforce any agreement
made with the Corporation or with any other employer
within its territorial jurisidction over whom the Board
could and would assert jurisdiction which requires any
such employer to cease doing business with, or restricts
him from doing business with, any other person in
violation of Section 8(e) of the Act.
2. Take the following affirmative action, which I find
will effectuate the policies of the Act:
(a) Post at its meeting place and hall in San Diego,
California, copies of the notice attached hereto as an
"Appendix."" Copies of said notice, to be furnished by
the Regional Director for Region 21, shall, after being
duly signed by an authorized representative of Respondent
Union, be posted by the Union immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered with any other
material which makes them partially or totally obscure or
illegible.
"Brotherhood of Painters. Decorators and Paperhangers of America,
Local Union No. 823, 161 NLRB 620; Sheet Metal Workers, Local 150,
170 NLRB No. 116, Calorator Manufacturing Corp., 129 NLRB 704;
Truck Drivers Union Local No. 413, IBTCWHA, 140 NLRB 1474,
1485-86.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Upon receipt of copies of said notice, mail to the
said Regional Director signed copies thereof for mailing
to all caterers whose names have been on any of the
Corporation's list of approved caterers.
(c) Notify the Corporation that it will not require the
Corporation to refrain from listing any caterer or to
qualify the listing of such names of caterers with a note
that such caterer does not have a contract with the Union
or does not employ union members or might be picketed.
C. Both Respondents shall notify the Regional Director
for Region 21, in writing, within 20 days from the date of
this Decision and Recommended Order of what steps each
has taken to comply herewith.27
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 21, in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith."
APPENDIX
NOTICE To ALL MEMBERS
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
A Trial Examiner of the National Labor Relations
Board has held that we have violated Section 8(e) of the
National Labor Relations Act by agreeing with, and
insisting upon compliance by, the San Diego Civic
Facilities Corporation that that Corporation should not
.authorize Bob's Enterprises , Inc., as a caterer, to do
business at the San Diego Community Concourse at all
or, in any event , without an implied threat of a picket
line, although there were no employees in a
collective -bargaining unit whose work required protection.
WE WILL NOT engage in such conduct in the future
with the San Diego Civic Facilities Corporation or with
any other employer subject to the jurisdiction of the
National Labor Relations Board and within our
jurisdiction so as to prevent Bob's Enterprises or any
other employer whose operations affect commerce
among the several States of the United States from
engaging in the catering business at the San Diego
Community Concourse.
Dated By
CULINARY ALLIANCE AND
HOTEL SERVICE
EMPLOYEES UNION
LOCAL 402
(Labor Organization)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions they may communicate
directly with the Board's Regional Office, Eastern
Columbia Bldg., 849 South Broadway, Los Angeles,
.Calif., 90014, Telephone 688-5229.