Culinary Workers & Bartenders Local 535, Etc.

National Labor Relations Board - Board Decisions

Dec 26, 1961

134 N.L.R.B. 1505 (N.L.R.B. 1961)

CULINARY WORKERS & BARTENDERS LOCAL 535, ETC. 1505
thorized by Section 8(a) (3) of the Act, as modified by the Labor -Management
Reporting and Disclosure Act of 1959.
WE WILL offer John W . Morgan and Lewis E. Pleasant immediate and full
reinstatement to their former or substantially equivalent positions , and make
them whole for any loss of earnings they may have suffered by reason of the
discrimination against them.
HARLEY BAG COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Culinary Workers and Bartenders Union Local 535, affiliated
with the Hotel and Restaurant Employees and Bartenders
International Union , AFL-CIO and Educational Supply Serv-
ice of California . Case No. 21-CP-37. December 26, 1961
DECISION AND ORDER
On July 14, 1961, Trial Examiner Herman Marx issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
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 entire rec-
ord in this case, including the Intermediate Report and the exceptions
and brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified herein.'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Culinary Work-
ers and Bartenders Union Local, 535, affiliated with, the Hotel and
1 We find it unnecessary to our decision here to consider the Board's holding In Chefs,
Cooks, etc ., Local 89, et at. (Stork Restaurant , Inc.), 130 NLRB 543, and, accordingly,
do not adopt the Trial Examiner's references thereto in footnote 8 of-his Intermediate
Report
The Trial Examiner recommended that the Respondent be ordered to cease and desist
from picketing the premises of the Employer with "the" object proscribed by Section
8(b) (7) of the Act. As Section .8(b) (7) forbids picketing where "an object thereof" is
a proscribed one, and is thus not limited in application to picketing conducted solely for a
proscribed object, we shall enter. an order In conformity with the Act
134 NLRB No. 156.
630849-62-vol. 131-9 6
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Restaurant Employees and Bartenders International Union, AFL-
CIO, its officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from picketing, or causing to be picketed, Edu-
cational Supply Service of California, El Centro, California, where
an object thereof is forcing or requiring said Employer to recognize
or bargain with the Respondent Union as the representative of its
employees, in violation of Section 8(b) (7) (C) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its business office and customary membership meeting
place, copies of the notice attached hereto marked "Appendix." 2
Copies of said notice, to be furnished by the Regional Director for
the Twenty-first Region, shall, after being signed by a duly authorized
representative of the said Union, be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to
members of the Union are customarily posted. Reasonable steps
shall be taken by the said Union to insure that such notices are not
altered, defaced, or covered by any other material.
(b) Forthwith mail copies of the said notice to the said Regional
Director at the Regional Office of the National Labor Relations Board
in Los Angeles, California, after such copies have been signed as
provided above for posting by Educational Supply Service of Cali-
fornia, if it so agrees, at places where it customarily posts notices
affecting its employees.
(c) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE To ALL MEMBERS OF CULINARY WORKERS AND BARTENDERS
UNION LOCAL 535, AFFILIATED WITH THE HOTEL AND RESTAU-
RANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION, AFL-
CIO, AND To ALL EMPLOYEES OF EDUCATIONAL SUPPLY SERVICE
OF CALIFORNIA
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our members and em-
ployees of Educational Supply Service of California that:
THE UNDERSIGNED UNION WILL NOT picket or cause to be pick-
eted, Educational Supply Service of California at El Centro,
CULINARY WORKERS & BARTENDERS LOCAL 535, ETC. 1507
California, where an object thereof is forcing or requiring said
Educational Supply Service of California to recognize or bar-
gain with us as the representative of its employees, in violation
of Section 8 (b) (7) (C) of the Act.
CULINARY WORKERS AND BARTENDERS UNION
LOCAL 535, AFFILIATED WITH THE HOTEL
AND RESTAURANT EMPLOYEES AND BAR-
TENDERS INTERNATIONAL UNION, AFL-CIO,
' Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in this proceeding, issued -by the General Counsel of the National
Labor Relations Board (also designated as the Board herein), alleges that a labor
organization named Culinary Workers and Bartenders Union Local 535, affiliated
with the Hotel and Restaurant Employees and Bartenders International Union,
AFL-CIO (herein also called the Union or Respondent), has violated Section
8(b) (7) (C) of the National Labor Relations Act, as amended (73 Stat. 519, et seq.,
29 U.S.C. 151 et seq.; also called the Act herein), by picketing premises of an em-
ployer, Educational Supply Service of California, for a period and objects proscribed
by the said section.' The Respondent has filed an answer which, in material sub-
stance, denies the commission of the unfair labor practices imputed to it in the
complaint.2
Pursuant to notice duly served byy the General Counsel upon the Respondent and
Educational Supply Service of California, the Charging Party in this proceeding, a
hearing upon the issues raised by the complaint and answer has been held before
Herman Marx, the duly designated Trial Examiner, at El Centro, California Each
party entered an appearance at the hearing through counsel and was afforded a full
opportunity to be heard, examine nand cross-examine witnesses, adduce evidence, file
To the extent material here, Section 8 of the Act provides:
(b) It shall be an unfair labor practice for a labor organization or its agents-
( • s s • s r
(7) to picket or cause to be picketed, or threaten to picket or cause to be
picketed, any employer where an object thereof is torcing or requiring an em-
ployer to recognize or bargain with a labor organization as the representative
of his employees, . unless such labor organization is currently certified as
the representative of such employees:
# • R k t # !
(C) where such picketing has been conducted without a petition under
section 9(c) being filed within a reasonable period of time not to exceed
thirty days from the commencement of such picketing' . . Provided . .
That nothing in this subparagraph (C) shall be construed to prohibit any
picketing or other publicity for the purpose of truthfully advising the public
(including consumers) that an employer does not employ members of, or
have a contract with, a labor organization, unless an effect of such picketing
is to induce any individual employed by any other person in the course of
his employment, not to pick up, deliver or transport any goods or not to
perform any services.
2 The complaint is based upon a charge against the Union filed with the Board by
Educational Supply Service of California on January 16, 1961. Copies of the charge and
complaint have been duly served upon the Union It may be noted, too, that the name of
the labor organization appears herein as amended at the hearing in this proceeding.
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
briefs,'and submit , oral argument . I have read -and considered a brief filed with me
by the General Counsel since the close of the hearing . No other party has filed a
-brief.
Upon the entire record, ,and from,my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. ORGANIZATION AND NATURE OF EDUCATIONAL SUPPLY'S BUSINESS;
JURISDICTION OF THE BOARD
Educational Supply.Service of California (also called Educational Supply herein)
is a California corporation; maintains its principal office in Chula Vista, California;
and engages in.the business of operating a restaurant in El Centro, California. The
enterprise -is operated under the name of Bob's Ember Glo, and will be referred to
below as the Ember Glo. The allegations of unlawful picketing involve only that
establishment.
The Ember Glo has an annual gross income of less than $500;000 and thus, as the
General Counsel concedes, its business volume does not meet criteria promulgated
by the Board in Carolina Supplies and Cement Co., 122 NLRB 88, for the assertion
of its jurisdiction over retail establishments. However, a determination whether the
Board should assert jurisdiction here does not turn upon the Ember Glo's business
volume, but upon the organization and operations of Educational Supply, and two
affiliated California corporations, Lygars, Inc., and -Bob's Enterprises, Inc., both of
which have the same office headquarters in Chula Vista (which is near San Diego)
as Educational Supply. Lygars,'Inc., owns and operates a restaurant in Chula Vista,
and Bob's Enterprises, Inc., owns and operates three such establishments, one in
Chula Vista and the others nearby. -in the San Diego area. The aggregate annual
gross income from the five restaurants mentioned above exceeds $1,000,000.
All the outstanding capital stock,of Educational Supply is owned by one individual,
Robert R. Crowther, who is its 'president and general manager. He is also president
and general manager of the two-other corporations, and jointly with his wife owns
70 percent of the stock of one, and 69 percent of the shares of the other.
Two other supervisors, both subordinate to Crowther, participate in the manage-
ment of all five restaurants, one supervising the dining room facilities of all and
the other their kitchens. Although both are paid from the funds of Bob's Enter-
prises, Inc., each restaurant contributes a "proportional share" of their salaries.
Each restaurant also has a dining room and kitchen supervisor. These take orders
in their respective operational spheres from tlae general dining room and kitchen
managers, as the case may be. The local supervisors hire the help needed for the
work subject to their authority. There has been some interchange or transfer of
employees between the Ember Glo and one or another of the other restaurants.
The five restaurants are subject to personnel and operational policies directed
from the Chula Vista office, and established, in the main , -by Crowther, who, it is
clear, has, and uses, power to exercise centralized control over the operations of all
five restaurants. For example, 'he prescribes the rates of pay of the employees,
determines the operational hours of the establishments, thus, in effect, setting hours
of employment in all of them, and has developed, and maintains, menus common to
all. That the operations of the restaurants are extensively integrated is also evi-
denced by the fact that the payroll of each,restaurant is prepared in the common
Chula Vista office; that the accounts of each are paid from that headquarters; and
that all the restaurant employees are subject to a uniform vacation policy and
covered by one group insurance plan.
In summary, by reason of Crowther's property interest in the three corporations,
his centralized direction and control of the restaurants they respectively operate, the
personnel and business policies common to all the restaurants, and the integrated
nature of the operations of these enterprises, the three corporations, at least for
the purpose of applying the Board's jurisdiction, are, and have been at all times
material to the issues, a single employer within the meaning of Section 2(2) of the
Act. Dearborn Oil and Gas Corporation, et al., 125 NLRB 645, 647; Chemical
Express, 117 NLRB 29, 30; Cam=Brese Corp. d/b/a Owl Drug Store, 128 NLRB 552.3
Thus, it is appropriate to determine whether the 'Board has, and should assert,
jurisdiction over the subject matter of this proceeding on the basis of the business
volume and operations of any or all of the corporations. Cam-Brese Corp., supra.
Bearing that in mind, there can be no doubt that the corporations engage in inter-
3 Crowther has title in his own name -to, and operates, a restaurant in Bonita, Cali-
fornia. I see no need to determine whether he and the three corporations constitute a
single employer. -
CULINARY WORKERS & BARTENDERS LOCAL 535, ETC. 1509
state commerce, for one or another of them purchases supplies for use in the
restaurants from suppliers located outside California . The supplies so purchased
are shipped into that State to the buyer . In 1960; such supplies included printed
menus with an aggregate purchase price of approximately $3,000, and soap valued
at about $12 ,000. Moreover , during the same year , the, three corporations pur-
chased food products ( for use in the restaurants ), valued , in the aggregate , at more
than $50,000, from a California supplier who had purchased and received such
products from sources located outside California.
By reason of the interstate purchase and shipment of the menus and soap, and
the purchase of the food ' products from the California supplier, as described above,
the three corporations have been , at all times, material to the issues , engaged in
interstate commerce , and in operations affecting such commerce , within the meaning
of the Act; and the Board, accordingly , has jurisdiction over the subject matter of
this proceeding . As the gross income of the three corporations from the operation
of the restaurants exceeds $1',000;000 annually, it meets the business volume criterion
promulgated by, the B'oard1 for the assertion of its jurisdiction over retail, enterprises.
Such assertion here will, effectuate the policies of the Act. Carolina Supplies and
Cement Co., supra.
IL THE LABOR ORGANIZATION- INVOLVED*
The Union is, and has been at all material times, a labor organization within
the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory findings
Crowther purchased the Ember Glo in his own name on January 1, 1960. The
record does not establish that he has ever transferred- title in the restaurant to Educa-
tional Supply, but there can be no doubt that Educational Supply took over the
operation of the restaurant at one point or another (apparently in or about April
1960) prior to the commencement of the picketing involved in this proceeding and
was the operator of the establishment, and employer of its personnel, throughout
the picketing period .4
On January 7, 1960, the Union, through one of its officers, Louis J. Rees, wrote
a letter to Crowther, addressed to him at the Ember Glo, expressing the belief that
it represented a majority of the restaurant's employees; offering to submit proof of
its representative status at a meeting with the California State Conciliation Service;
and proposing bargaining negotiations if the belief of representation proved to be
correct 5
On January 11, 1960, an El Centro attorney named C. L. Dickenson (also spelled
Dickinson in the record) replied by letter, stating that he had been authorized by
Crowther to attend a meeting with the State conciliation service, but expressing the
view that such a meeting was premature at that point because "the sale and transfer
of the business is still in escrow," and had not yet been "consummated." 6
During the course of the next few months, Rees called at the Ember Glo a number
of times with a view to establishing, contact with, Crowther, but was informed on
each occasion that Crowther was not there.
In or about the middle of August 1960,' a business representative of the Union
named Greenstone, whose duties include the organization of employees and partici-
pation in contract negotiations on behalf of the Union called at the Ember Glo,
introduced himself to the dining room manager, Rolla Gracey, and asked for
Crowther. Gracey replied that Crowther was in Chula Vista or San Diego. Green-
As regards the operation of the Ember Glo by Educational Supply, one may note that
Crowther transferred its liquor license to the corporation In, April 1960 ; that the
restaurant's proceeds are deposited to the account of the corporation ; and that the
latter pays the wages of the restaurant's employees; and the establishment's bills.
5 The Respondent presented evidence, through Rees, to the effect that at the time
Crowther acquired title to the Ember Glo, all of its employees were members of the
Union ; and that a collective-bargaining agreement, affecting such employees, between the
labor organization and the prior owners had not yet expired. This evidence, in my
judgment, does not materially affect any issue in this proceeding.
° It is a matter of no importance whether title to the restaurant passed to Crowther on
January 1, 1960, as he testified, or whether the sale had not yet been "consummated" as of
January 11, 1960, the date of Dickenson's letter. The relevant point to bear in mind is
that Educational Supply began to operate the Ember Glo at some point before the picket-
ing began, and was the operator of the enterprise, throughout the picketing period.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stone stated that he had come to the restaurant to discuss "a labor contract which
was coming up" (meaning , plainly, to discuss the Union 's wish to enter into a con-
tract affecting the Ember Glo's employees). Gracey said that he had no authority
in the matter, and Greenstone stated that "there is one (a contract) coming up, and
we (the Union) expect or anticipate no trouble, because they (the employer of the
Ember Glo's help ) will either sign or else."
In August 1960, the Union decided to picket the Ember Glo, but before putting
the decision into effect asked approval of such a course by the Central Labor
Council of Imperial Valley, with which the Union and other labor organizations in
the El Centro area are affiliated; and requested the Council to "intercede in our
behalf with the management of the Ember Glo to set up a meeting." Accordingly,
upon the Union's initiative, a meeting of a grievance committee of the Council was
held in El Centro on the morning of August 28, 1960, to act on the Union's requests.
Crowther was asked to come to the session but did not appear. The meeting was
attended by representatives of the Union and agents of other labor organizations,
including one Charley Thomas, secretary of a Carpenters' local in the El Centro
area. It may be noted, in that connection, that a general contractor named Hender-
son Construction Company was engaged , on the day of the meeting, and had been
engaged for some period prior thereto, in erecting an addition to the Ember Glo;
and that construction workers, including a carpenter, were employed on the project.
The upshot of the meeting was a decision by the committee, as Harry Downey,
a business agent of the Union, who attended, testified, that "the picket line be put
on at the Ember Glo," and the committee instructed Thomas at the meeting to
inform the membership of his organization of the committee's decision.
Within an hour after the meeting, Thomas went to the construction site at the
Ember Glo and spoke to Henderson's job superintendent, one Leo French, who is
a member of the Carpenters' local represented by Thomas. The latter informed
French that picketing of the Ember Glo would begin at noon that day, and told the
job superintendent to convey the information to "all of the subcontractors of their
employees." French remonstrated that the construction workers were not in the
employ of the Ember Glo. Thomas then asked French if he wished "to work behind
the picket line." French replied that he preferred not to do so, but asked what
would happen if "we were to continue on." Thomas answered that French "could
possibly be subject to a fine (presumably by the Carpenters' local) if someone pre-
ferred charges." That appears to have ended the conversation, and Thomas left
Shortly thereafter that morning, French conveyed the information on the jobsite
to a carpenter and two laborers in Henderson's employ at the project, and to em-
ployees of subcontractors working there, telling them that they could do as they
wished, but that he would have to leave.
The Union posted a picket or pickets on the street "outside" the Ember Glo on
the morning of August 28, shortly after French spoke to the construction workers.
The picket or pickets carried a sign or signs bearing one or another of the following
legends: "This House On Strike"; "Unfair To Organized Labor"; "This House Not
Union, Local 535, AFL-CIO." Although it does not appear which of these legends
was used on August 28, it is clear that no other was employed at any time during
the picketing involved in this proceeding, and that each was used at some point
during the picketing period.
French noticed the picketing about 11:30 on the morning of August 28, and there-
upon he informed all the construction workers at the project of the activity, and
instructed the carpenter and the laborers in Henderson's employ to collect their
equipment and tools. Work on the project was suspended about noon of August 28,
French and the carpenter leaving the project site about noon, and the laborers de-
parting soon thereafter. (It may reasonably be inferred that the subcontractors'
employees also left the project on August 28 before the end of their normal work-
day, although the record does not establish the time of their departure.)
The Union continued to picket the Ember Glo in substantially the manner de-
scribed above over a period of about 6 months, discontinuing the picketing on or
about February 24, 1961. The construction work resumed soon after the picketing
ceased.
On or about September 15, 1960, Dickenson and Crowther, representing the
management of the Ember Glo, held a meeting in Dickenson 's office with representa-
tives of the Union, consisting of Rees, Downey, and an individual named McDonough.
The meeting was arranged upon Dickenson's initiative, and, although the evidence
of what was said there has a sketchy appearance at various points, it is evident from
the context of circumstances and Rees' account that Dickenson 's aim was to seek
discontinuance of the picketing . (As Rees put it, albeit vaguely, Dickenson said that
-he "thought possibly we could sit down , and discuss . something which might be
of mutual advantage to both of us concerning the pickets and so on and so forth.")
CULINARY WORKERS & BARTENDERS LOCAL 535, ETC. 1511
It is also evident that the union representatives went to the meeting with a view to
negotiating a collective-bargaining agreement affecting employees at the Ember Glo.
Rees conceded as much in his testimony, for he admittedly brought to the meeting
a form of agreement used by the Union, and testified that the Union's representa-
tives came to the meeting with the anticipation that they would discuss "the pos-
sibility of negotiating the contract." There was, in fact, some discussion regarding
contract negotiations. During the course of the meeting, Rees expressed the beliet
that the Union represented the Ember Glo employees, and said that the Union
"would always stand willing to negotiate"; Dickenson asked whether the Union
would have any objection to "a vote" by the employees to determine whether the
organization represented them; McDonough replied that since the Union already
represented the employees, he could see no "sense" in an election "unless (it) was
a means to an end" or, in other words, that the management agree that "if an
election (were) held, . . . there (would) be a bargaining session"; and at one point
or another, Crowther stated that he had "no intention of negotiating a contract."
So far as the record shows, the meeting does not appear to have produced any
fruitful result.
The Union was not at the time the picketing began, nor at any time thereafter,
within the meaning of the Act, the certified representative of any individuals em-
ployed at the Ember Glo, and had not filed a representation petition under Section
9(c) of the Act with respect to such employees either before the picketing com-
menced or at any time within 30 days after it began.?
B. Concluding findings
The basic issue presented for decision by the foregoing findings is whether the
picketing was for an object proscribed by Section 8(b)(7)(C) of the Act.8 With
respect to the object, Rees would have it in his testimony that he ordered the "picket
line" because; he "felt there was no other way I could contact Mr. Crowther," and
that, "the picket line would persuade him (Crowther) to talk" to the Union. One
may agree with this, but the question still remains what it was that the Union wished
to "talk" about, and as to that, the evidence, taken as a whole, leaves me in no
doubt that the "talk" the Union desired was the negotiation of a collective-bargaining
agreement affecting the Ember Glo employees.
That aim appeared almost as soon as Crowther acquired the restaurant, as evi-
denced by the letter of January 7, 1960, albeit it conditioned the bargaining pro-
posal it contains upon verification of the Union's representative status. More to the
point, only about 2 weeks before the picketing began, Greenstone came to the
Ember Glo to discuss "a labor contract," and expressed confidence to Gracey that
the Ember Glo management would sign an agreement, stating that it would "either
sign or else." This, in the context of events, was but another way of saying that the
management would either sign "a labor contract" with the Union "or else" suffer
the consequence of picketing. One may fairly conclude from the tenor of Green-
stone's remarks that the Union no longer adhered to the condition that it establish
its representative status as a prerequisite to "a labor contract" with the Ember Glo
management . And it is evident that when Crowther signified his refusal to deal
with the Union by not appearing at the meeting of the Central Labor Council's
grievance committee, the picketing was undertaken to bring him to terms. More-
over, the object of the picketing may be inferred from the circumstances surrounding
the meeting in Dickenson's office, and from the tenor of the discussion there. As
'So far as appears, no petition has ever been filed by the Union under Section 9(c)
with respect to any persons employed at the Ember Glo
BA Board majority has held that an employer's refusal to bargain, in violation of Sec-
tion 8(a) (5) of the Act, does not justify picketing by an uncertified union for the period
and objects proscribed by Section 8(b) (7) (C) Cihefs, Cooks, etc, Local 89, et al, 130
NLRB 543 Without implying that the Ember Glo management's bargaining attitude hti
material here , one does not reach the principle of the cited case , for the evidence does
not establish that the management violated the Act In that connection, I note, in pass-
ing, that on January 18, 1961, the Union's counsel filed a charge in Case No. 21-CA-4264,
alleging that Educational Supply had violated Section 8(a) (5) of the Act by refusing to
bargain with the Union regarding the Ember Glo's employees; and that the Regional
Director of the Twenty- first Region of the Board thereafter refused to issue a complaint
on the charge on the ground that an investigation of the charge did not yield sufficient
"evidence of violation " Upon review of that disposition under Section 102 19 of the
Board's Rules and Regulations , Series 8, the General Counsel
Director's action.
sustained the Regional
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
noted earlier, Dickenson's aim was to secure a discontinuance of the picketing, and
the Union's representatives came to the meeting with a view to negotiation of an
agreement. In other words,'the picketing and the Union's bargaining aim were inter-
locked subjects; and that this was so is established by Rees' own testimony, for he
admitted that had the management signed the contract he had in his possession at
the meeting, the picketing would have been discontinued. This is as much as to say
that recognition of the Union by the management, and a contract between the two,
were, in the Union's view, a quid pro quo for cessation of the picketing. That being
the case, it is reasonable to conclude that the picketing was launched to compel the
Ember Glo management to recognize and bargain with the Union. I hold, in short,
that such recognition and bargaining were the objects of the picketing.
Finally, assuming, arguendo, that the legends on the signs were truthful informa-
tion, such veracity did not place the picketing beyond the proscription of Section
8(b) (7) (C). The immunity given by the section to "picketing . . for the pur-
pose of truthfully advising the public . . . that an employer does not employ
members of, or have a contract with, a labor organization" is inapplicable where
the "effect" of such picketing is to induce employees, in the course of their employ-
ment, "not to pick up, deliver or transport any goods or not to perform any services."
The evidence establishes such an "effect" beyond cavil. Thomas, it is plain, in
bringing tidings of the projected picketing to the construction site was an instrument
of the Union and of the Central Labor Council to bring about a cessation of work
on the project upon commencement of the picketing, but whether or not one takes
that view of Thomas' role, the fact remains, and I hold, that the picketing induced
employees engaged, in the course of their employment, in the construction of the
addition to the Ember Glo "not to perform ... services." 9
The sum of the matter is that the object of the picketing was to force or require
the employer of the Ember Glo employees to recognize and bargain with the Union
as the representative of such employees; and that in view of the object of the picket-
ing, its duration without the filing of "a petition under (S)ection 9(c)" within the
time prescribed by Section 8(b) (7) (C), and the Union's lack of certified status
to represent the employees, the Union by engaging in, or causing, the picketing vio-
lated Section 8(b) (7) (C).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union set forth in section III, above, occurring in connection
with the operations of Educational Supply 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.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Educational Supply Service of California is, and has been at all material
times, an employer within the meaning of Section 2(2) of the Act.
2. Educational Supply Service of California, Lygars, Inc., and Bob's Enterprises,
Inc., as found above, constitute, and have constituted at all material times, a single
employer within the meaning of Section 2(2) of the Act.
3. Culinary Workers and Bartenders Union Local 535, affiliated with the Hotel
and Restaurant Employees and Bartenders International Union, AFL-CIO, as found
above, is, and has been at all material times, a labor organization within the meaning
of Section 2 (5) of the Act.
4. The said Union is not, and has not been at any material times, certified as the
representative of a unit of employees of Educational Supply Service of California
9 There is some suggestion in the record that a trucking firm "ceased to make de-
liveries" to the Ember Glo during a portion of the picketing period ; and testimony that on
one occasion during the picketing period Gracey telephoned the place of business of one of
the subcontractors, speaking to an unidentified person, and asked that the firm undertake
the repair of a gas leak at the Ember Glo. The person who answered the phone stated
that "because of the existing picket line, he couldn't come." The evidence regarding,
the deliveries and the telephone conversation is, in my judgment, insufficient to warrant a
finding that the picketing had the "effect" of inducing any employee not to make the,
deliveries in question, or to repair the gas leak. Hence, I base no results in this pro-
ceeding on such evidence.
OVERNITE TRANSPORTATION COMPANY 1513
appropriate for the purposes of collective bargaining within the meaning of Section 9
of the Act.
5. By picketing with the object of forcing and requiring Educational Supply
Service of California to recognize and bargain with the said Union, as the repre-
sentative of individuals in the employ of Educational Supply Service of California,
as found above, the said Union has engaged in unfair labor practices within the
meaning of Section 8(b) (7) (C) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Overnite Transportation Company and Jake W. Christopher
and James B. Cheek. Cases Nos. 11-CA-1734--1 and 11-CA-
1734-2. December 26, 1961
DECISION AND ORDER
On October 12, 1961, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the Intermediate Report at-
tached hereto. He also found that the Respondent had not engaged in
other unfair labor practices and recommended dismissal of the com-
plaint as to them. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report, the exceptions, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
However, as South Carolina has a right-to-work law, we shall delete
from paragraph numbered 1(c) of that Order, and from the notice to
be posted, the words "except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8(a) (3)
of the Act."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding against Overnite Transportation Company, herein also called
the Respondent or the Company, involves Section 8 (a) (1) and ( 3) allegations, and
134 NLRB No. 159.