Hotel Employees Union Local 466

National Labor Relations Board - Board Decisions

Jun 24, 1971

191 N.L.R.B. 528 (N.L.R.B. 1971)

528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hotel, Motel & Restaurant Employees & Bartenders
Union Local 466, AFL-CIO and Yankee Trader,
Inc., d/b/a Treadway Inn at Rochester, New York.
Case 3-CB-1444
June 24, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On January 22, 1971, Trial Examiner James F. Foley
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was engag-
ing in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial Ex-
aminer also found that Respondent had not engaged in
certain other alleged unfair labor practices and recom-
mended that the complaint be dismissed as to them.
Thereafter, the General Counsel filed exceptions to the
Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, the brief, and the
entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, as modified herein.
The General Counsel excepts to the Trial Examiner's
failure to find that the following conduct, established
by the record, was unlawful:
On April 26, a paid organizer of the Respondent,
Pollock, asked O. D. Perry, one of the Employer's
kitchen employees who had crossed the picket line, to
join the picket line. Perry said "No." Then Pollock said
that before they were done with employees who crossed
the picket line, they would be "making beds."'
Although we agree with the Trial Examiner that the picture taking by
DeBerardmis and Radenbaugh did not violate Section 8(b)(1)(A) of the Act,
we do not rely on the Trial Examiner's finding that the photograph incidents
were "pretextual." See Tennessee Packers, Inc., 124 NLRB 1117, 1123 Nor
do we rely on his conclusion that the Union's conduct was "provoked" by
the Employer's photographing of the pickets In our view, the General
Counsel failed to show, by a preponderance of the evidence in this case, that
this conduct by Respondent was coercive
The record indicates that at the time of this remark, Perry, as a kitchen
employee, was earning 25 cents per hour more than the chambermaids
engaged in making beds at the Treadway Inn
191 NLRB No. 81
On May 14, Innkeeper Zitrin told four pickets that
they would have to pay $2 for parking their cars on the
Inn lot. They returned with Litto, business manager
and secretary-treasurer of the Respondent, and as they
approached Zitrin, he raised his camera to take a pic-
ture. Litto shouted, in the presence of the four em-
ployee pickets, that if Zitrin took a picture, Litto would
ram the camera down his throat.
We find merit in these exceptions, and find that the
Respondent Union by the aforementioned conduct of
its agents to, and in the presence of, employees threat-
ened, restrained, and coerced employees in the exercise
of their Section 7 rights in violation of Section
8(b)(1)(A) of the Act.'
CONCLUSIONS OF LAW
We hereby adopt the Trial Examiner's recommended
Conclusions of Law with the following modifications:
In Conclusion 3, delete the words "to threaten."
Add the following new conclusions of law, and
renumber the others accordingly:
5. Respondent, by Joseph Pollock, its paid organizer,
in violation of Section 8(b)(1)(A) of the Act, threatened
employee O. D. Perry with regard to the conditions of
his employment for having crossed Respondent's
picket line.
6. Respondent, by John Litto, its business manager,
in violation of Section 8(b)(1)(A) threatened Innkeeper
Carl Zitrin with bodily harm in the presence of em-
ployees, thereby threatening, coercing, and restraining
employees in the exercise of rights guaranteed to them
in Section 7 of the Act.
' As these incidents were alleged in the amended complaint and all
parties had an opportunity to litigate them, they are properly before the
Board for determination on the merits. The cases relied on by the Trial
Examiner in support of his conclusion that Litto's threat to Zitrin in the
presence of other employees was not before him are distinguishable as there,
unlike the instant case, the General Counsel consistently refused to issue or
amend the complaints. See Sec. 102.17 of the Board's Rules and Regula-
tions, Series 8, as amended; C. H. Guenther & Sons Inc.,d/b/a Pioneer Flour
Mills, 174 NLRB No. 174 Sec. 102.19(c), relied on by Member Brown,
gives a charging party an avenue of appeal from a Regional Director's refusal
to issue a complaint It is not inconsistent with Sec 102 17, which provides
not only for the amendment of complaints by the Regional Director, subject
to appeal to the General Counsel under Sec 102.19, but also for amend-
ments by the General Counsel sua sponte at the hearing Our dissenting
colleague suggests that once the General Counsel has refused to include a
particular allegation in the complaint after an appeal by the charging party,
he is thereafter divested of his statutory authority under Sec 10 of the Act
to include such an allegation in the complaint unless his decision conforms
with Sec. 102.19 The Board's Rules and Regulations were not intended to,
and do not, in fact, so circumscribe the General Counsel's powers with
respect to the issuance and amendment of complaints. The matter of issuing
complaints is within the General Counsel's sole discretion Where, as here,
legally sufficient charges have been filed and fully litigated, it is not the
province of the Board to examine or pass upon the General Counsel's
internal procedures leading to the amendments of complaints, whether
through a successful appeal by the charging party from a Regional Director's
ruling or by the General Counsel's own motion at the hearing.
HOTEL EMPLOYEES UNION LOCAL 466 529
ORDER APPENDIX
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner as modified below and hereby or-
ders that the Respondent , Hotel , Motel & Restaurant
Employees and Bartenders Union Local 466, AFL-
CIO, its officers, agents, and representatives , shall take
the action set forth in the Trial Examiner 's recom-
mended Order , as herein modified.
1. Add the following as paragraphs 1(c) and (d) and
reletter 1 (c) as 1(e):
"(c) Threatening Perry and other employees with
regard to their conditions of employment for crossing
Respondent 's picket line.
"(d) Threatening supervisory and management per-
sonnel with bodily harm in the presence of employees,
thereby coercing and restraining the employees in the
exercise of rights guaranteed to them in Section 7 of the
Act."
2. Substitute the attached Appendix for the Trial
Examiner 's Appendix.
MEMBER BROWN, dissenting in part:
I cannot agree with my colleagues insofar as they
reverse the Trial Examiner and find that the Respond-
ent Union violated Section 8(b)(l)(A) by the incidents
of April 26 and May 14. Rather, I would adopt the
Trial Examiner 's conclusions and rationale as to both.
In connection with the latter , neither Section 102.17 of
the Board's Rules nor C. H. Guenther & Sons, 174
NLRB No. 174, cited by my colleagues in their foot-
note 3 , supports the action they have condoned. For
that section of the rules merely permits amendment of
the complaint at various stages of the proceedings. The
only provision for action after a dismissal has been
sustained is in Section 102.19 (c), permitting a motion
for reconsideration by the General Counsel . And, the
Guenther , decision states only that in a prior case a
complaint was,not issued on a particular incident, but
there is no indication that it was alleged as a violation
after an appeal was taken from the Regional Director's
refusal ' to, issue complaint thereon and the General
Counsel sustained that dismissal , as in the instant pro-
ceeding. In my view , the Respondent was entitled to
rely on the action of the General Counsel, on appeal,
in sustaining the dismissal absent contrary action upon
a proper motion for reconsideration filed with the Gen-
eral Counsel with copies served on the parties , pursuant
to Section 102.19(c).
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT attempt to cause or cause Wil-
mot Castle, or other employers , to discharge em-
ployees Alvino Ray Hines and Donald L. John-
son, or other employees who are employed by both
them and Treadway Inn, because they cross our
picket line.
WE WILL NOT threaten Hines, Johnson, or any
other employees who are employed both by Tread-
way Inn and by Wilmot Castle, or other employ-
ers, with discharge by Wilmot Castle or other em-
ployers to coerce them to cease crossing our picket
line.
WE WILL NOT threaten Perry or any other em-
ployee with regard to their conditions of employ-
ment for crossing our picket line.
WE WILL NOT threaten any supervisory or
management personnel with bodily harm in the
presence of employees thereby threatening , coerc-
ing, and restraining the employees in the exercise
of rights guaranteed to them in Section 7 of the
Act.
WE WIL NOT in any like or related manner re-
strain or coerce employees in the exercise of their
rights guaranteed by Section 7 of the Act.
HOTEL, MOTEL &
RESTAURANT
EMPLOYEES &
BARTENDERS UNION
LOCAL 466,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 4th Floor, The 120 Building, 120 Delaware Ave-
nue, Buffalo , New York 14202, Telephone 716-842-
3100.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES F. FOLEY, Trial Examiner: This case, 3-CB-1444,
was brought before the National Labor Relations Board
(herein called the Board) under Section 10(b) of the National
Labor Relations Act, as amended (herein called the Act), 61
Stat ., 136, 76 Stat . 579, against Hotel , Motel & Restaurant
Employees & Bartenders Union Local 466, AFL-CIO
(herein called Respondent) by a complaint issued August 28,
1970, and amended at the hearing pursuant to a notice of
intention to amend issued October 23, 1970, and an amended
answer filed at the hearing . The amended complaint is pre-
mised on a charge filed May 1, 1970, and an amended charge
filed May 21, 1970, by Yankee Trader, Inc., d/b/a Treadway
Inn, at Rochester, New York (herein called Treadway Inn).
It is alleged in the amended complaint that Respondent
violated Section 8(b)(1)(A) of the Act by threatening em-
ployees of Treadway Inn by photographing employees on
April 23 and 26, 1970; making verbal threats of bodily injury
to employees on April 26, 1970; threatening employees with
loss of employment on April 20, 22 and 25, 1970; threatening
Carl Zitrin, agent and supervisor of Treadway Inn, with
bodily injury or other harm on or about May 14, 1970, in the
presence of employees of Treadway Inn; and on or about June
11, 1970, by an unknown person picketing Treadway Inn for
Respondent with John Litto, secretary-treasurer of Respond-
ent, present assaulting Carl Zitrin in the presence of em-
ployees of Treadway Inn, all because employees of Treadway
Inn refused or failed to observe or honor the picket line
Respondent had established at Treadway Inn or refused or
failed to engage in other union or concerted activities on
behalf of Respondent.
Respondent in its amended answer denied the illegal con-
duct alleged in the amended complaint.
A hearing on the amended complaint and amended answer
was held before me on October 27 and 28, 1970, in Rochester,
New York. The parties were afforded an opportunity to
present evidence , make oral argument , and file briefs. No
party filed a brief.
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF TREADWAY INN, THE EMPLOYER
Treadway Inn maintains, and has done so during all times
material, its principal office and place of business in Roches-
ter, New York, and is engaged in the business of operating
a motel and related services under a franchise agreement.
During the 12 months preceding August 28 , 1970, in the
course of its business operations it had a gross revenue in
excess of $500 ,000. During this same period Treadway Inn
received goods valued in excess of $50,000 transported di'
rectly and indirectly in interstate commerce from States of
the United States other than the State of New York. During
the same period , Treadway Inn rented more than 75 percent
of its rental units to guests who remained_for°no ,,morethan
a month or less . Treadway.Ifin is; and has been at all material
times herein, an employpr , engaged `in commerce within the
meaning of Section 2(6) .and :(?) of the Act. Assumption of
jurisdiction will effectuate ,,the°purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background Evidence'
In November 1969 , Respondent began a campaign at
Treadway Inn at least in part for recognition by Treadway
Inn of Respondent as bargaining representative of its em-
ployees. John Litto, business manager and secretary-
treasurer of Respondent for 16 years, was in charge of the
campaign . He had headed many attempts by Respondent in
the past to organize Treadway Inn's employees . Respondent
had not succeeded . Respondent picketed Treadway Inn be-
ginning April 21, 1970, until on or about June 12, 1970.
Employees of Treadway Inn favorable to Respondent's
campaign were on the picket line. John Williams, one of
Respondent 's paid organizers , was in charge of the picketing.
Litto visited the picket line many times, and occasionally
joined the picket line. A paid organizer by the name of Joseph
Pollock was also on the picket line. Pollock carried a sign
bearing the legend that Treadway Inn refused to recognize
and negotiate with Respondent . General Counsel 's witness
Richard McWilliams testified he saw pickets carrying signs
bearing the legend that Treadway Inn was unfair to em-
ployees and the identification of Respondent.
General Counsel does not contend that the picketing was
not peaceful, or that it violated Section 8(b)(1)(A) of the Act.'
He contends Respondent 's agents engaged in conduct during
the picketing that was violative of Section 8(b)(l)(A) of the
Act. This conduct is alleged in the amended complaint. It
consists of photographing of employees who crossed the
picket line and refused to honor it, threats of bodily injury
and loss of employment to employees who crossed the picket
line and refused to honor it and assist the Respondent in its
campaign, and threats of bodily harm to the manager or
innkeeper of Treadway Inn in the presence of employees at
or in the vicinity of the picket line.
B. The Photographing
About 11:30 a.m. on April 23,1970, Richard McWilliams,
a cook employed by Treadway Inn, had what he identified as
a break from his duties . He had signed an authorization card
in January or early February 1970 authorizing Respondent to
act as his collective-bargaining representative . He did not
participate in the picketing which began on April 21, and
crossed the picket line to perform his duties as an employee
of Treadway Inn. There is no evidence that he informed
Respondent he was withdrawing the authorization he gave it
on the card . McWilliams saw Donato DeBarardinis and
Mickey Johnson , whom he identified as personal friends, on
the picket line, and went to the line to greet them . DeBerar-
dinis, a bartender for Treadway Inn, ceased working for it
when the picketing began. He was an employee organizer for
Respondent , and had solicited and obtained for Respondent
the signatures of employees on authorization cards. He was
reimbursed-"by Respondent for expenses incurred in securing
signed authorizations ; andwas,on the Respondent's payroll
from late April to the end of May 1970, when he was on the
picket line. He had solicited and obtained Mc Williams ' signa-
ture on an authorization card . Johnson was a hostess for
Treadway Inn. There is no direct evidence that Johnson
ceased working when the picket began . However, it can be
' The following evidentiary findmg& are made after evaluation of oral and
written evidence and demenaor testimony Credibility conflicts have been
resolved after evaluation of conflicting oral testimony and related written
evidence, and the demeanor of the witnesses giving the oral testimony, in
the context of the record as a whole.
I See N.LR B. v Teamsters Local 639, 362 U.S. 274.
HOTEL EMPLOYEES UNION LOCAL 466
assumed she did, as Business Manager Litto was opposed to
the crossing of the picket line by an employee who had desig-
nated the Respondent to represent him or her, and expected
such an employee to honor it. The picketing was continuous
from early morning into the evening. Johnson's presence on
what was a demand for recognition picket line raises a pre-
sumption that she had signed an authorization card.
McWilliams greeted DeBerardinis and Johnson. DeBerar-
dinis motioned him to join the picket line and he answered
no. Then DeBerardinis asked him to pose for a picture. DeBe-
rardinis had in his hand a Kodak Instamatic camera, and
went through the motions of taking a picture. He then saw
employee Louis Mender approaching Treadway Inn to enter
it and report for work and went through the motions of
taking his picture.
DeBarardinis testified that there was no film in the camera,
and that his taking of McWilliams' and Mender's picture was
pretextual to counteract the picture taking of Carl Zitrin, the
innkeeper or manager of Treadway Inn, from the the begin-
ning of the picketing on April 21, 1970. He also testified that
he had the camera while picketing only on April 23. It is
undisputed that Zitrin appeared daily in the vicinity of the
picket line with a large Polaroid camera in his possession. A
leather strap which Zitrin had around his neck was affixed to
the camera. Zitrin took an average of 50 pictures or more, 1
or 2 a day, during the period of the picketing. McWilliams
testified that he did not know if his picture or Mender's was
actually taken. He never saw a picture of himself or Mender
taken by DeBerardinis. I credit DeBerardinis' testimony that
his picture taking was pretextual, and that he had the camera
while picketing only on April 23.'
On Sunday, April 26, 1970, about 10:30, Business Manager
Litto, Organizer Pollock, and a Doctor Radenbaugh, a prac-
ticing pediatrician who was sympathetic with Respondent's
efforts to obtain recognition, were picketing. Litto was on
' General Counsel contends that the testimony DeBerardmis gave at the
hearing about his use of binoculars, in May or the first part of June, 1970,
during the picketing, to scrutinize the premises of Treadway Inn is in conflict
with his prior recollection of the incident recorded in a statement taken from
DeBerardinis by a representative of the Board's Regional Office on May 26,
1970, and signed by DeBerardinis, and therefore his testimony should not
be credited . I have read the statement carefully and evaluated it and have
evaluated DeBerardims ' testimony. Statements of this nature are usually a
narrative prepared by the Regional Office representative after he has asked
certain questions and the person being interviewed has answered the ques-
tions . This witness was not a witness friendly to the General Counsel and
was not required to give any statement to the Regional Office representative.
Newsome, the representative , did not testify. It is reasonable to assume that
DeBerardims avoided, where possible , disclosing or volunteering evidence
unfavorable to Respondent , of which he was an agent , without making a
false statement . I am satisfied that, as DeBerardmis testified, "a couple of
kids" offered to sell him a pair of cheap binoculars for a quarter, and he
attempted to look in the direction of Treadway Inn through the binoculars
to see if they were working, and found they were broken. I also credit his
testimony that later the same day while he was aware he was being watched
from Treadway Inn he said to O. D. Perry, a witness for General Counsel,
who was standing with him, "They'll make a big thing out of this, watch
O.D ," and looked through a pair of binoculars , he had in his possession and
which he purchased for his child from Kresges for 39 cents I also credit his
testimony that he could see through them only a distance of five feet
General Counsel did not call Perry to rebut this testimony although he had
previously testified for General Counsel on other matters. In crediting
DeBerardinis4 testimony I have considered his demeanor and his oral tes-
timony in the context of the record as a whole. The statement prepared by
Newsome which DeBerardinIs signed does not impeach the latter's tes-
timony. There is no probative evidence before me that Newsome asked him
if he-looked in the direction of Treadway Inn through other binoculars or
at another time, and he denied that he did I find no basis in law , or. fact that
DeBerardiis had an obligation to volunteer to Newsome that there was
another time he looked in the direction of Treadway Inn through 'binoculars.
531
Alexander Street, and Radenbaugh and Pollock were on East
Avenue. Employee O. D. Perry, Benjamin Moyd, Alvino Ray
Hines, and Frank Anselmo were standing on the rear porch
of Treadway Inn. The porch was above the delivery entrance.
The porch and delivery entrance were a short distance from
Alexander Street where Litto was picketing. McWilliams,
who was having a break, was about 5 feet from the others on
the porch. Like McWilliams, Perry, Moyd, Anselmo, and
Hines were kitchen help, and had crossed the picket line and
continued working for Treadway Inn. Litto asked Perry,
Moyd, Hines, and Anselmo to join the picket line because
they signed cards. They and McWilliams said to Litto to cut
out the nonsense, get off the street, and let them go about their
business. After Litto made some remarks to McWilliams, he
asked Radenbaugh, who had appeared on the Alexander
Street side with Pollock, to take a picture. The latter had a
Polaroid camera. Litto said to Radenbaugh, "Doctor take a
picture of these scabs, Zitrin's been taking a hundred a day
of us, we might as well take one of theirs." He referred to
Moyd and Perry as Uncle Tom's and to Anselmo as a stupid
guinea. Perry and Moyd were blacks, and Hines, Anselmo,
and McWilliams were whites. Perry and Moyd turned their
backs on Litto, and he asked them to turn around. McWil-
liams said they did not have to turn around. They did not turn
around. Radenbaugh went through the motions of taking a
picture. No other evidence that a picture was taken was
introduced. Anselmo said to Litto that he had better not take
the picture, and Litto asked Anselmo if he was threatening
him, and Anselmo replied that,he could take his statement
anyway he wanted it.
C. Threats of Bodily Harm
On April 26, after McWilliams and the others said to Litto
to cut' out the nonsense, get off the street, and let them go
about their business, Litto said to McWilliams that he would
push his face in. McWilliams just looked at Litto. McWil-
liams is a tall young man . Litto is middle aged and of medium
height. Litto then said that he would look at things differently
when he was knocked on his rear end. He used the vernacular
instead of the words "rear end." McWilliams continued to
look at him. Then followed the incident of Litto's request to
Radenbaugh to take the pictures of the employees and the
related circumstances as stated above. Moyd and Perry tes-
tified they were not frightened by what occurred in their
presence.
I credit Litto's testimony that prior to the incident in which
Moyd, Perry, Anselmo, and Hines were involved, some re-
marks passed between him and McWilliams. He testified that
as he walked by McWilliams sitting on the wall separating
Alexander Street from Treadway Inn's premises, and smok-
ing a cigarette, McWilliams said to him, "What 's a big shot
like you doing picketing?," he answered "I happen to be a
dumb dago, I don't know better," McWilliams replied "You
said it, I didn't" and he then said "Right, Butch [McWil-
liams''nickname] don't you ever say it to me like you have
been saying it around."
On Saturday, April 25, 1970, about 11 a.m., when McWil-
liams was enjoying a break sitting on the wall separating
Treadway Inn's premises from Alexander Street where Litto
was picketing , McWilliams and Litto had a conversation.
Litto said to McWilliams that he should be out on the picket
line with him, that he had signed a card. McWilliams replied
that he had no use for Respondent, that he had a prior
experience with a union and wanted no part of it. Litto called
him a scab.
General Counsel introduced evidence of an incident that
occurred in the parking lot of Treadway Inn on May 14, 1970,
about . p.m., during which Litto expectorated in Innkeeper
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zitrin's face in the presence of McWilliams, the building
maintenance employee, and other employees including at
least one of the female pickets. The General Counsel, on
August 13, 1970, in ruling on Treadway Inn's appeal from the
Regional Director's refusal to issue a complaint on its charge
and amended charge found that while there were grounds for
the issuance of a complaint this incident was not one of them.
The Regional Director was instructed to issue a complaint on
other matters but not on this incident. The allegation that the
incident was unlawful was added to the complaint as para-
graph 6(c) by the notice of intention to amend and by the
amendment of the complaint at the hearing. Respondent did
not oppose the addition of the paragraph 6(c) but opposed the
introduction of evidence in support of it. It relied on the
ruling of the General Counsel of August 13, 1970.
In view of the General Counsel's ruling on August 13,
1970, that the incident could not be included in the complaint
as conduct violative of Section 8(b)(1)(A), I find that this
incident is not before me as conduct violative of Section
8(b)(1)(A).4 I have considered it, however, as background
evidence intended to show employee animus by Respondent
in connection with the proper allegations of the amended
complaint. The full text of the incident follows in the next two
paragraphs.
About 2 p.m., on May 14, four female employees of Tread-
way Inn appeared in the parking lot in two automobiles. The
automobiles were parked in the parking lot, and the four
employees proceeded to the picket line and picketed. McWil-
liams went to Innkeeper Zitrin and told him about the parked
automobiles. There were signs in the parking lot that a fee of
$2 would be charged for cars illegally parked in the parking
lot. There is no evidence indicating whether the female em-
ployees picketing had or had not parked their cars when
performing duties for Treadway Inn as employees, or if they
did park there, under what conditions.
Zitrin had two cars parked behind the parked cars of the
female pickets to prevent the driving of their cars from the
lot. A $2 parking ticket was placed on each of the cars. When
the female pickets returned to the cars they were told that
there was a parking charge of $2 for each car. They left. While
leaving, one said she was going to make a telephone call. One
returned shortly afterwards with Business Manager Litto. As
they approached Zitrin and the others involved in the inci-
dent, Zitrin raised his camera to take a picture. Litto shouted
to him that if he took a picture he would ram the camera
down his throat. Zitrin snapped the picture. Litto asked Zi-
trin to let the girls take the cars out of the lot. He replied there
was a $2 fee for parking and that the fees had to be paid before
the cars could be moved. Litto then spit in his face. There was
more conversation. The parking fees were paid, the cars be-
hind the cars of the pickets were removed, and the pickets'
cars were driven away.
On April 26, 1970, O.D. Perry, one of the Treadway Inn's
kitchen employees who had crossed the picketline and con-
tinued to work, had a conversation with Organizer Pollock.
It appears the conversation was held about the time Pollock
and Doctor Radenbaugh appeared on Alexander Street from
picketing on East Avenue and when Perry, Moyd, Hines,
Anselmo, and McWilliams were on the porch at the rear of
Treadway Inn, a short distance from Alexander Street, as
related and found above. Pollock asked Perry to come down
from the porch and join him on the picket line. Perry said
* See Sec 3(d) of the Act, and Local 295, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, 178 NLRB 52; Times Square Stores Corp., 79 NLRB 361; Welling-
ton Mills Division v. N.L.R.B., 330 F 2d 579 (C A. 4), enfg. m part 141
NLRB 819.
"No." Then Pollock said that before they were done with the
employees who crossed the picket line they would be making
beds. Perry's job in the kitchen was to see that employees in
about half the area of the kitchen performed their duties and
performed them properly. He had never made beds either at
Treadway Inn or elsewhere. Female employees identified as
maids or chambermaids made them. Perry's wages were 25
cents more per hour than maids received. Tips that maids
received were not considered in determing the 25 cent differ-
ential.
About 8 a.m., Friday, June 11, 1970, two pickets picketing
for Respondent on Alexander Street spoke to the driver of a
vehicle about to make a meat delivery to the kitchen of Tread-
way Inn. The driver unloaded the delivery at the delivery
entrance which lead to the kitchen. McWilliams overheard
one of the pickets say to the driver that he could not make
the delivery, and to call his union boss. The driver made a
telephone call, and then unloaded the delivery at the entrance
to the premises . Zitrin arranged to have the delivery brought
into the kitchen. He then went to where the pickets were and
commenced to take their picture. They said to him not to take
a picture. One of them said he was going to call the police.
Zitrin snapped a picture of the remaining picket. This picket
then pushed Zitrin against the wall enclosing the Treadway
Inn premises, and pushed his knee into the lower part of
Zitrin's body. Litto testified there were two pickets picketing
for Respondent that morning. He recalled one with the iden-
tification of Seneca. Jim. He also testified he was informed of
the incident later in the morning by one of the pickets. Litto
was picketing on East Avenue away from the incident when
it occurred. There is no probative evidence that Litto was
aware of the incident when it was taking place or that he or
Williams, the picket captain, authorized the picket's conduct
even though it was provoked by Zitrin.
D. Threats of Loss of Employment
On April 22, 1970, Litto wrote and sent a letter to Louis
Gottsdorf, business representative, District No. 6, Interna-
tional Association of Machinists, AFL-CIO, in which he
stated that Respondent had information that three of the
members of District No. 6 were violating the picket line at
Treadway Inn. He named Lavino Hines, employed 6 years by
Treadway Inn as a baker. He was employed at the time as a
sandblaster part time by Wilmot Castle, a firm whose em-
ployees were represented by Local 2312 of the Machinist
Union. He began this part-time employment in the early part
of April 1970 and was still a probationary employee when
Litto wrote and sent the letter, which was received by the
Machinists ' union . He also named Donald Johnson, regularly
employed by Wilmot Castle as an assembler, and employed
part time by Treadway Inn as a banquet waiter. Litto also
stated in the letter that he was sure that Gottsdorf would
advise Hines, Johnson, and the other employee of proper
union principles, and would take the necessary action to in-
sure their compliance with the trade union action to be taken
in Respondent's fight with Treadway Inn. Hines and Johnson
crossed the picket line at Treadway Inn and continued to
work.
On April24, 1970, during the night shift at Wilmot Castle,
Richard Hudson, Hines ' foreman at Wilmot Castle, and
Bruce Cooper, a steward for Local 2312 at Wilmot Castle,
had a conversation with Hines in Hudson 's office about Lit-
to's letter to Gottsdorf. Hudson said they had received a letter
from Respondent that he should not be allowed to work there
as he was breaking some law. Hines asked what law he was
breaking, and Hudson said they did not know offhand but
would check into it. Hines asked what he should do, and
HOTEL EMPLOYEES UNION LOCAL 466
Hudson said to go back to work, and if it got any worse he
might get laid off.
The next day, Saturday, April 24, 1970, Hines had a con-
versation with Litto at the corner of Alexander Street and
East Avenue. Hines opened the conversation by saying to
Litto "John, what are you trying to do to me?," and Litto
answered "Well, you should be on the picket line with me."
Hines had signed an authorization card and had solicited and
obtained signatures on four others . Hines replied to Litto by
saying "Are you going to pay me?," and he replied "no."
Then Hines said, "Who's going to feed my family?" and Litto
said that was not his problem. Litto also said he knew about
Johnson, his buddy, being employed at Wilmot Castle, and
had them both in a position that would result in their losing
their jobs at Wilmot Castle. Hines asked him how he knew
he was working at Wilmot Castle, and Litto answered that all
unions stick together, they are one operation. Hines asked
him what connection a factory union had with a restaurant
union , and Litto said they were all put together in one big
organization.
When at work at Wilmot Castle, Johnson was shown Lit-
to's letter to Gottsdorf, or a copy, by Johnny Kieffer, the chief
steward for Machinists' Local 2312, in the presence of Don
Cotton, the president of Local 2312. Either Kieffer or Cotton
asked him why he worked at Treadway Inn while employees
of Treadway Inn who were union members were picketing.
He answered that the pickets did not work at Treadway.
Kieffer or Cotton replied that he had no right to cross the
picket line. Johnson said that Treadway Inn was not union,
and the pickets were members of a restaurant union picketing
themselves. Either Kieffer or Cotton replied that they would
look into the situation some more.'
ANALYSIS, FINDINGS, AND CONCLUSIONS OF FACT
AND LAW
I find and conclude that what appeared to be the photo-
graphing of employees McWilliams and Mender on April 23,
1970, by DeBerardinis was pretextual only, and the pretex-
tual conduct was provoked by the continuous photographing
by Innkeeper Zitrin of Treadway's employees picketing or
striking or of Respondent' s agents picketing. Zitrin's photo-
graphing was more than the gathering of evidence in connec-
tion with the filing of a charge or charges to be filed against
Respondent. It gave the impression that pictures taken were
to mark or identify the persons photographed for use against
them when they sought employment or other benefits from
persons or places which Treadway Inn could influence. In
any event, the pretextual photographing was friendly.
McWilliams posed for it in response to DeBerardinis request
that he do so. I find that the photographing by Doctor Raden-
baugh on April 26 was provoked by Zitrin's photographing
and by the conduct of Treadway Inn's employees on April 26.
This conduct consisted of the acrimonious colloquy between
McWilliams and Litto, initiated by McWilliams, when they
first met on the morning of April 26 and the reply a few
minutes later by Perry, Moyd, Hines, Anselmo, and McWil-
liams to Litto's request that they, join the picket line since
they signed authorization cards, that he cut out the nonsense,
get off the street, and let them go about their business. There
is no evidence of photographing by Respondent other than
the photographing on April23 by DeBarardinis and on April
26 by Radenbaugh at Litto's request. The photographing was
not part of the Respondent's conduct to obtain recognition
from Treadway Inn as bargaining representative of its em-
' There is no evidence that any further action was taken against Hines
and Johnson with respect to their employment by Wilmot Castle.
533
ployees. Respondent did not violate Section 8(b)(1)(A) by the
pretextual photographing of DeBaradinis or the photograph-
ing by Doctor Radenbaugh.b
Litto's reference to McWilliams on April 25, 1970, as a
scab and his references on April 26, 1970, to Perry, Moyd,
Hines, Anselmo, and McWilliams as scabs, to Perry and
Moyd as Uncle Toms and to Anselmo as a stupid guinea are
not threats within the meaning of Section 8(b)(1)(A). They
are protected by Section 8(c) of the Act.7 They were not
enmeshed with conduct that caused them to become coercive
and restraining conduct within the meaning of Section
8(b)(1)(A).8
I find and conclude that the statement by Litto to McWil-
liams on the morning of April 26, 1970, that he would smash
McWilliams' face in, and that he would look at things differ-
ently when he was knocked on his rear end, was provoked by
the acrimonious conversation, initiated by McWilliams, be-
tween him and Litto when they first met on the morning of
April 26; the reply of McWilliams, Perry, Moyd, Hines, An-
selmo, and McWilliams that he cut out the nonsense, get off
the street, and let them go about their business to Litto's
request that they join him on the picket line because they
signed cards, and McWilliams' remark to Litto that Perry
and Moyd did not have to turn around when the latter asked
Perry and Moyd to turn around after they had turned their
backs as Radenbaugh was about to take a picture. Litto's
remark was not part of Respondent's efforts to obtain recog-
nition but was a spontaneous response by Litto in the heat
generated by the ad hominem remarks that passed between
the employees who crossed the picket line and Litto. Litto's
threat in any event was an idle one. McWilliams, a tall young
man, merely stared down Litto, a middle aged man of
medium height. It was a David and Goliath situation, but
here Litto had no slingshot or other weapon. At most it
would engender amusement on the part of McWilliams and
the other employees. There is no evidence before me of
strong-arm tactics by Respondent or its agents that would be
triggered by remarks of this nature' by Litto or other agents
of Respondent. In the context in which it was made Litto's
remark was not a threat or conduct that restrained or coerced
employees within the meaning of Section 8(b)(1)(A) in con-
nection with their rights in Section 7 of the Act.' For the same
reasons, I also find and conclude that Litto's spitting in Inn-
keeper Zitrin's face on May 14 when Zitrin restrained the
female pickets from driving their automobiles from Treadway
Inn's parking lot and took a picture of Litto and one of the
female pickets as they approached Zitrin filled with indigna-
tion at his impounding of the automobiles, is not background
evidence showing the illegality of the conduct in issue before
me. This expectoration was not part of Respondent's 'efforts
to obtain recognition from Treadway Inn as bargaining repre-
sentative, but a response to Zitrin's ad hominem conduct, and
made in the heat of the ad hominem situation.
Respondent's picketing was primary activity, and at least prima facie
protected. See N.L.R.B. v Teamsters Local 639, 362 U.S. 274 The photo-
graphing and pretextual photographing being provoked by Treadway Inn
and nonstriking employees are not attributable to Respondent as illegal
conduct. H. N. Thayer Company, 99 NLRB 1122, enfd. 213 F.2d 748 (C.A.
1), cert. demed 348 U.S. 883; Sea Land Service, Inc., 146 NLRB 931, enfd
356 F.2d 955, 967 (C.A. 1), cert. denied 385 U'S. 900; Intl Ladies Garment
Workers Union, AFL-CIO, 130 NLRB 614, 615.
Central Massachusetts Joint Board, Textile Workers ofAmerica, AFL-
CIO, 123 NLRB 590, 602-604; International Longshoremen's and Ware-
housemen's Union, CIO, at aL 79 NLRB 1487, 1505; United Shoe Workers
of America, CIO., at aL, 80 NLRB 225, 242.
Cf. Youngdahl v. Rainfair, Inc., 355 U.S. 131, 138.
Cases cited fn. 6.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find and conclude that Respondent did not engage in
conduct violative of Section 8(b)(1)(A) of the Act-by the
conduct of a picket about 8 a.m. on June 11, 1970, inattempt-
ing to wrest Zitrin's camera from him when he took his
picture, and in doing so pushing Zitrin against Treadway
Inn's wall separating its property from Alexander Street, and
pushing his knee into the lower part of Zitrin's body. There
is no evidence that Litto or any other responsible agent was
present when the incident occurred or that they had any
knowledge that the picket's conduct would occur or that
Respondent by any responsible agent encouraged or ratified
such conduct.
It is true that the picket along with another picket talked
to the driver of a truck about to make a delivery to the kitchen
of the Treadway Inn, which is on the Alexander Street side,
and after the talk the driver left the delivery at the beginning
of the driveway to the kitchen, and Treadway Inn employees,
on Zitrin's instruction, carried the delivery to the kitchen.
When Zitrin began preparation to take a picture, one of the
pickets asked him not to take the picture, and when he con-
tinued his preparation the picket left after saying he was
going to call the police. When Zitrin snapped the picture of
the remaining picket the latter attempted to wrest the camera
from Zitrin, and in doing so pushed him against the wall and
pushed his knee into him. It was a spontaneous response to
another instance of Zitrin's continuous photographing from
the time the picketing began on April 21, 1970. There is no
probative evidence that this conduct was part of the efforts
of Respondent and its agents to obtain recognition from
Treadway Inn. The issue before me is whether the Respond-
ent comitted a violation of Section 8(b)(1)(A) by the conduct
of the picket. The issue whether the Respondent committed
a violation of Section 8(b)(7) is not before me.
I find and conclude that Litto's letter of April 22, 1970, to
Business Representative Gottsdorf of District No. 6 of Inter-
national Association of Machinists, in which he stated that
Hines, Johnson, and one other person employed by Wilmot
Castle and also employed by Treadway Inn were violating
Respondent's picket line at Treadway Inn, and,' asked the
Machinists' Union for their cooperation in forcing Hines,
Johnson, and the other employee to cease crossing the picket
line at Treadway Inn, and to join the strike, attempted to set
in motion a chain of action that would result in the discharge
of Hines and Johnson by Wilmot Castle if they refused to join
Respondent's picket line at Treadway Inn and refused to
cease working for Treadway Inn. I also find and conclude
that Litto, on April 25, 1970, in a conversation with Hines
threatened him and Johnson with the loss of their jobs at
Wilmot Castle if they did not join Respondent's picket line
at Treadway Inn and refuse to work for Treadway Inn. I find
and conclude that this conduct of Respondent violates Sec-
tion 8(b)(1)(A) of the Act.'°
I find and conclude that Respondent did not violate Section
8(b)(1)(A) of the Act by Organizer Pollock's statement to O.
D. Perry who crossed the picket line and refused to join it that
Respondent would have the male kitchen employees who
crossed the picket line and worked behind it making beds
before Respondent was through with them. It was a flippant
remark by someone not authorized to make statements of
policy for Respondent. At most it was an idle threat and
ludicrous on its face. The male kitchen personnel were not the
type of employees who would be assigned by the management
'" BSOIW,, Local 444 (Gust K. Newberg Construction Co.), 174 NLRB
1104; Senco, Inc. et al and International Ladies Garment Workers Union,
AFL-CIO, 177 NJ RR 882; International Union ofDistrict 50, United Mine
Workers of America (Clement Brothers Company Inc.),,and International
Union of Operating -Engineers, Local 92¢, 165 -NLRB 698.
of Treadway Inn or any motel of hotel to the jobs of making
beds. They would resent suck an assignment. Such an assign-
ment would affect adversely the business of the hotel. Since
these kitchen employees sided with Treadway Inn in its con-
test with Respondent, Treadway would not assign them to
work they would not do, especially when the assignment
would cause an unfavorable reaction from its guests.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with the operations of the employer
named in section I, above, have a close, intimate, and substan-
tial relation to trade, traffic and commerce among the several
States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
THE REMEDY
In order to effectuate the policies of the Act, I find that it
is necessary that Respondent be ordered to cease and desist
from the unfair labor practices found and from like or related
invasions of the employees rights set out in Section 7 of the
Act, and to take certain prescribed affirmative action.
Upon the basis of the foregoing findings of fact, and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The employer Treadway Inn is an employer within the
meaning of Section 2(2) of the Act, and is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Hotel, Motel & Restaurant Employees &
Bartenders Union Local 466, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent, in violation of Section 8(b)(1)(A) of the
Act, attempted to cause Wilmot Castle, employer of Alvino
Hines and Donald Johnson, also employed by Treadway Inn,
to threaten to discharge Hines and Johnson if they continued
to cross Respondent's picket line at Treadway Inn and work
behind it, or if they refused to join the picket line and Re-
spondent's strike against Treadway Inn, and attempted to
cause Wilmot Castle to discourage Hines and Johnson in
reprisal for their continuing to cross Respondent's picket line
at Treadway Inn and working behind it and for refusing to
join Respondent's picket line at Treadway Inn and Respond-
ent's strike against Treadway Inn.
4. Respondent, by John Litto, its business manager, in
violation of Section 8(b)(l)(A) of the Act, threatened Hines
and Johnson directly with the loss of their jobs at Wilmot
Castle for crossing Respondent's picket line at Treadway Inn
and working behind it for Treadway Inn, and for refusing to
join Respondent's picket line at Treadway Inn and Respond-
ent's strike against Treadway Inn.
5. Respondent has not violated Section 8(b)(1)(A) of the
Act by,the other conduct alleged as violations in the amended
complaint, and the amended complaint insofar as it alleges
this conduct should be dismissed.
6. The aforesaid conduct found to be unfair labor practices
are unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions of fact and
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
HOTEL EMPLOYEES UNION LOCAL 466
ORDER"
Respondent, Hotel, Motel & Restaurant Employees & Bar-
tenders Union Local 466, AFL-CIO, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Attempting to cause or causing Wilmot Castle or other
employers to discharge employees Alvino Ray Hines and
Donald L. Johnson or other employees who are employed
both by them and by Treadway Inn because they cross Re-
spondent's picket line at Treadway and work behind it for
Treadway Inn, or refuse to join Respondent's picket line at
Treadway Inn and refuse to work for Treadway Inn while
Respondent is on strike against it.
(b) Threatening Hines, Johnson, and other employees who
are employed by Treadway Inn and also by Wilmot Castle or
other employers with discharge by Wilmot Castle or the other
employers to coerce them to cease crossing Respondent's
picket line at Treadway Inn and working for Treadway Inn,
or to join Respondent's picket line at Treadway Inn or Re-
spondent's strike against Treadway Inn.
(c) In like or related manner restraining or coercing em-
ployees in the exercise of their rights guaranteed by Section
7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the purposes of the Act:
(a) Post in conspicuous places in Respondent's business
offices, meeting halls and all places where notices to members
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
535
are customarily posted, copies of the attached notice marked
"Appendix."" Copies of the notice, on forms provided by the
Regional Director for Region 3, shall, after being signed by
Respondent's authorized representative, be posted by it im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter in conspicuous places. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Sign and mail to the Regional Director for Region 3
sufficient copies of the said notice to be furnished by him for
posting by Treadway Inn or Wilmot Castle, if they are will-
ing, at places where they customarily post notices to their
employees.
(c) Notify the Regional Director for Region 3 in writing
within 20 days from the date of the receipt of this Decision
and recommended Order what steps Respondent has taken to
comply herewith.13
It is recommended that unless on or before 20 days from
the date of the receipt of this Trial Examiner's Decision and
Recommended Order the Respondent notifies the Regional
Director in writing that it will comply with the foregoing
recommendations the National Labor Relations Board issue
an order requiring the Respondent to take the action afore-
said. It is further recommended that the amended complaint
be dismissed insofar as it alleges violations of the Act not
specifically found to be violations.
" In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing, within 20 days from the date of this Order, what steps Respondent
has taken to comply herewith."