Hotel, Motel & Club Employees' Union, Local 568

National Labor Relations Board - Board Decisions

Jan 25, 1962

135 N.L.R.B. 567 (N.L.R.B. 1962)

HOTEL, MOTEL & CLUB EMPLOYEES UNION, LOCAL 568 567
appearance at a shapeup to the date of the conclusion of the loading of the respective
sh1p.2
Finally, it is recommended that the complaint be dismissed as to all other indi-
viduals alleged therein to have been discriminatorily refused hire.
2In determining the amount of backpay due, of course , as previously recommended the
Board 's policy as set out in P. W. Woolworth Company, 90 NLRB 289, and Crossett
Lumber Co., 8 NLRB 440, should he observed.
Hotel, Motel & Club Employees ' Union , Local 568, AFL-CIO
and Leonard Shaffer Company , Inc., and Arthur A. Kober
Company, Inc. Case No . 4-CC-163. January 25, 1962
DECISION AND ORDER
On August 22, 1961, Trial Examiner Albert P. Wheatley 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 Re-
port attached hereto. Thereafter, the Respondent and General Coun-
sel filed exceptions to the Intermediate Report, and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this proceeding to a three-
member panel [Members Leedom, Fanning, and Brown].
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings,' conclusions, and recommendations of
the Trial Examiner with the following additions and modifications.2
We also agree with the General Counsel that an order directing the
Respondent to cease and desist from engaging in such unfair labor
i In adopting the Trial Examiner ' s findings that the Respondent violated Section
8(b) (4) (1) and (ii) (B) of the Act, Members Fanning and Brown , for the reasons set forth
in International Brotherhood of Electrical Workers , Local Union 861, et al (Plauche
Elect) ic, Inc ), 135 NLRB 250, do not rely on Washington Coca Cola Bottling Works,
Inc, 107 NLRB 299, 303, enfd 220 F. 2d 380, as precedent for the findings herein.
Member Leedom would adhere to the principles of Washington Coca Cola , and relies on
such case as additional precedent for finding a violation of Section 8 ( b) (4) (f) and
(i1) (B) of the Act.
n Although the Trial Examiner found that by its picketing the Respondent engaged In
unfair labor practices within the meaning of 8(b) ( 4) (i) and (ii) (B) of the Act, lie did
not specifically find that by such conduct the Respondent restrained and coerced the
secondary person for unlawful objectives in violation of Section 8(b) (4) (1i) (B). We
believe, as contended by the General Counsel, that such specific finding is warranted, and,
accordingly , find that , in its aforesaid picketing the Respondent restrained and coerced
the named secondary persons in violation of Section 8 (b) (4) (ii) (B) of the Act. Sheet
Metal Workers International Association , Local Union No 299, AFL-CIO, et al. (S M.
Eisner ( deceased ), et at, d/b/a S M Eisner and Sons ), 131 NLRB 1196.
135 NLRB No. 53.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices against the named persons and "any other persons" similarly
engaged is likewise warranted under the circumstances of this case.'
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent, Hotel, Motel & Club
Employees' Union, Local 568, AFL-CIO, its officers, agents, repre-
sentatives, successors, and assigns, shall :
1. Cease and desist from inducing or encouraging any individual
employed by Leonard Shaffer Company, Inc.; Arthur A. Kober Com-
pany, Inc., Wolfson and Schnoll, Inc., Morris Newmark and Bros.,
Inc., Altman Bros., Inc., Allied Plastering Co., Inc., Energy Ele-
vator Company, Henry S. Rau Company, G-M Iron Works, and
Modern Floors, Inc., and any other person similarly engaged at the
Locust Street construction site to engage in a strike or a refusal in the
course of his employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials, or com-
modities, or to perform any services; or from threatening, coercing, or
restraining the above-named persons or any other person similarly
engaged at the Locust Street construction site where an object thereof
is forcing or requiring Leonard Shaffer Company, Inc., Arthur A.
Kober Company, Inc., Wolfson and Schnoll, Inc., Morris Newmark
and Bros., Inc., Altman Bros., Inc., Allied Plastering Co., Inc., Energy
Elevator Company, Henry S. Rau Company, Inc., G-M Iron Works,
and Modern Floors, Inc., or any other person similarly engaged at the
Locust Street Construction site to cease doing business with Locust
Mid-City Club, or forcing or requiring Locust Mid-City Club to recog-
nize or bargain with Hotel, Motel & Club Employees' Union, Local 568,
AFL-CIO.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at Respondent Union's business offices and meeting halls,
copies of the notice attached hereto marked "Appendix." 4 Copies of
said notice, to be furnished by the Regional Director for the Fourth
Region, shall, after being duly signed by the authorized representative
of the Respondent Union, be posted by the Respondent Union im-
mediately upon receipt thereof, and be maintained for a period of 60
consecutive days thereafter, in conspicuous places, including all other
3 Our Order herein is not to be construed as prohibiting lawful primary picketing at the
premises herein involved if they are now occupied by its Locust Mid-City Club employees
4In 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."
HOTEL, MOTEL & CLUB EMPLOYEES UNION, LOCAL 568 569
places where notices to members are customarily posted. Reasonable
steps shall be taken to insure that the notices are not altered, defaced,
or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the Regional
Director for the Fourth Region, for posting, Leonard Shaffer Com-
pany, Inc., Arthur A. Kober Company, Inc., Wolfson and Schnoll,
Inc., Morris Newmark and Bros., Inc., Altman Bros., Inc., Allied
Plastering Co., Inc., Energy Elevator Company, Henry S. Rau Com-
pany, Inc., G-M Iron Works, and Modern Floors, Inc., willing, at all
locations where notices to their respective employees are customarily
posted.
(c) Notify the Regional Director for the Fourth Region, in writing,
within 10 days from the date of this Order, what steps it has taken
to comply with the recommendations herein made.
APPENDIX
NOTICE TO ALL MEMBERS OF HOTEL, MOTEL & CLUB EMPLOYEES' UNION,
LOCAL 568, AFL-CIO, AND TO ALL EMPLOYEES OF LEONARD SHAFFER
COMPANY, INC., ARTHUR A. KOBER COMPANY, INC., WOLFSON AND
SCHNOLL, INC ., MORRIS NEWMARK AND BROS., INC., ALTMAN BROS.,
INC., ALLIED PLASTERING Co., ENERGY ELEVATOR COMPANY, HENRY
S. RAU COMPANY, INC., G-M IRON WORKS, AND MODERN FLOORS., INC.
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 you that :
WE WILL NOT induce or encourage any individual employed
by Leonard Shaffer Company, Inc., Arthur A. Kober Com-
pany, Inc., Wolfson and Schnoll, Inc., Morris Newmark and
Bros., Inc., Altman Bros., Inc., Allied Plastering Co., Energy
Elevator Company, Henry S. Rau Company., Inc., G-M Iron
Works, Modern Floors, Inc., and any other persons similarly
engaged at the Locust Street construction site to engage in a
strike or refusal in the course of his employment to use, manu-
facture, process, transport, or otherwise handle or work on any
goods , articles, materials , or commodities , to perform any serv-
ices, of from threatening, coercing, or restraining the above-
named persons, or any other person similarly engaged at the
Locust Street construction site, with an object of forcing or re-
quiring Leonard Shaffer Company, Inc., Arthur A. Kober Com-
pany, Inc., Wolfson and Schnoll, Inc., Morris Newmark and
Bros., Inc., Altman Bros., Inc., Allied Plastering Co., Energy
Elevator Company, Henry S. Rau Company, Inc., G-M Iron
570 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Works, Modern Floors, Inc., and any other persons similarly en-'
gaged at the Locust Street construction site, to cease doing busi-
ness with Locust Mid-City Club or forcing or requiring Locust
Mid-City Club to recognize or bargain with' us in the absence of
a certification as the bargaining representative of employees of
Locust Mid-City Club.
HOTEL, MOTEL & CLUB EMPLOYEES' UNION,
LOCAL 568, 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.
Employees may communicate directly with the Board's Regional
Office (1700 Bankers Securities Building, Walnut & Juniper Streets,
Philadelphia, Pennsylvania; Telephone Number, Pennypacker -
5-2612) if they have any question concerning this notice or compliance
with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed by Leonard Shaffer Company, Inc., and Arthur A. Kober
Company, Inc., against Hotel , Motel & Club Employees ' Union , Local 568, AFL-
CIO, herein called Respondent, a complaint was issued on March 24 , 1961 , alleging
violations of Section 8(b) (4) (i ) and (ii ) ( B) of the National Labor Relations
Act, as amended , herein called the Act. This proceeding, with all parties repre-
sented , was heard before Albert P. Wheatley, the duly designated Trial Examiner,
in Philadelphia , Pennsylvania , on June 20, 1961 . After the close of the hearing
the General Counsel and the Respondent filed briefs 1 which I have considered in
preparing this report.
Upon the entire record and observations of witnesses , I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS INVOLVED
Respondent , in connection with a dispute with Locust Mid-City Club, a private
dining club at 13th and Spruce Streets in Philadelphia , Pennsylvania , picketed a site
several blocks away where an independent contractor and his subcontractors were
engaged in the construction of a new club building for the Locust Mid-City Club
and caused a complete stoppage of work. The record reveals that more than
$50,000 worth of materials and supplies came to this construction site from-points
and places outside of Pennsylvania and that the general contractor engages in ex-
tensive work in States other than Pennsylvania and that such out-of -State business
is in excess of $300,000.
Respondent 's contention that this matter should be dismissed on jurisdictional
grounds is hereby rejected on the basis of Sheet Metal Workers International Associ-
ation, Local Union No. 299, AFL-CIO, et al. (S. M. Kisner (deceased), et al. d/b/a
S. M. Kisner and Sons), 131 NLRB 1196, and Plumbers Union of Nassau County
Local 457, etc. (Jerry Bady, d/b/a Bomat Plumbing and Heating), 131 NLRB 1243.
II. THE LABOR ORGANIZATION INVOLVED
Hotel, Motel & Club Employees ' Union , Local 568, AFL-CIO, is, and at all times
material herein has been , a labor organization within the meaning of Section 2(5)
of the Act.
I The briefs were received In due course on July 28, 1961.
HOTEL, MOTEL & CLUB EMPLOYEES UNION, LOCAL 568 571
III. THE UNFAIR LABOR PRACTICES
The Facts
Locust Mid-City Club (herein called Locust) at the time of the events involved
herein operated a private dining club at 13th and Spruce Streets in Philadelphia,
Pennsylvania. Respondent picketed at this location for a number of years (since
1956). The purpose of the picketing was to force Locust to recognize and bargain
with Respondent.
Prior to the events involved herein Locust acquired a new location at 1612-16.
Locust Street (several blocks away from the 13th and Spruce Streets address noted
above) and undertook to have a new building constructed thereon. Locust con-
tracted with Leonard Shaffer Company, Inc., and Arthur A. Kober Company, Inc.,
as joint venturers, for the construction work. At the time of the events involved here-
in, completion of the new building was scheduled for on or about April 1, 1961. The
general contractors subcontracted a substantial portion of the work involved and
at the time of the events involved herein the subcontractors working at the construc-
tion site were Wolfson and Schnoll, Inc., Morris Newmark and Bros., Inc., Altman
Bros., Inc., Allied Plastering Co., Energy Elevator Company, Henry S. Rau, Inc.,
G-M Iron Works, and Modern Floors, Inc.
At no time material herein has Respondent had any dispute with the general
contractors or with the subcontractors. As noted above, there was a dispute of
longstanding between Locust and Respondent.
While construction was going on and the building was about 96 to 97 percent
completed, Respondent, on March 6, 1961, inaugurated a picket line at the construc-
tion site on Locust Street? The picket signs at this location bore the same legend
as did the signs carried by the pickets at 13th and Spruce Streets, to wit: Employ-
ees of Locust Club on strike. At the time of the picketing at the construction site
the general contractors were in complete control of the premises involved and no
employee of Locust had performed any work at that site, or even been assigned
duties there. Locust employees were then working at the 13th and Spruce Street
location.
As a result of the picketing at the construction site individuals employed by the
general contractors and subcontractors refused to perform services for their respective
employers, consequently the entire project was shut down until the picketing at
the construction site was enjoined on March 27, 1961. In addition, truckdrivers
approaching the construction site stopped and spoke to the pickets and then drove
away without making the deliveries scheduled to be made.
On or about May 1, 1961, construction work at the Locust Street site was com-
pleted and Locust moved into this new building and began normal functioning
there. Shortly thereafter the injunction heretofore mentioned was modified so as
to permit picketing at this location and the picketing then resumed almost
immediately.
Conclusions
The issue for decision herein is whether the facts set forth above warrant a find-
ing and conclusion that Respondent's conduct at the construction site was with an
object proscribed by Section 8(b) (4) (i) and (ii) (B) of the Act. If it was, then the
Act was violated, otherwise it was not. There is no direct affirmative evidence that
Respondent's picketing at the construction site was with an object proscribed by
the Act-there rarely is in such situations. Nevertheless, the fair inference from
the entire record is to the effect that this was Respondent's objective. This becomes
apparent when it is realized that Respondent was seeking to force Locust to recog-
nize and bargain with it, but that the conduct involved took place at a site not under
the control of Locust and where none of Locust's employees were working or even
assigned duties. In such a situation it seems reasonable to infer, and I do so infer,
as the courts and this Board have on many occasions,3 that an object of such conduct
was to force the secondary employers to cease doing business with the primary em-
2 Respondent previously had caused a brief shutdown of construction work by picketing
the construction site In January 1961. The picketing was abandoned after several hours,
apparently when a meeting between Respondent and Locust was arranged When the
meeting with Locust produced no adjustment of the dispute and work on the new club
building neared completion, Respondent reinstated its picket line at the construction site.
3 See, inter alia, Local 761, International Union of Electrical, Radxo and Machine
Workers, AFL-CIO v. N L.R.B c6 G.E. Company, 366 U.S. 667; Moore Drydock Company,
92 NLRB 547; and Washington Coca Cola Bottling Works, Inc., 107 NLRB 299, 303,
enfd . 220 F. 2d 380.
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer (Locust) to force the primary employer to recognize and bargain collectively.
Respondent urges that no further action be taken in this matter in view of the
fact that the construction work has been completed and Locust is now carrying on
its normal business at the former construction site . It is settled however, that an
unfair labor practice proceeding is not mooted by either the termination of the
particular incident giving rise to the violation or by the discontinuance of the total
,course of unfair conduct (N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 567-
568; N.L.R.B. v. Pool Manufacturing Co., 339 U.S. 577; and N.L.R.B. v. Local 74,
United Brotherhood of Carpenters & Joiners of America, A. F. of L., et at. (Watson's
-Specialty Store ), 341 U.S. 707, 715). '
IV. THE REMEDY
Having found that'Respondent has engaged in unfair labor practices in violation
of the Act, I recommend that Respondent , to effectuate the policies of the Act, cease
and desist therefrom and take the affirmative action hereinafter specified.
CONCLUSIONS OF LAW
In summary, I find and conclude
1. The evidence adduced in this proceeding satisfies the Board 's requirements
for the assertion of jurisdiction herein.
2. Leonard Shaffer Company , Inc., Arthur A. Kober Company , Inc., Wolfson
and Schnoll , Inc., Morris Newmark and Bros., Inc., Altman Bros., Inc., Allied
Plastering Co., Energy Elevator Company , Henry S. Rau Company , Inc., G-M Iron
Works, and Modern Floors , Inc., are engaged in commerce or in an industry affect-
ing commerce within the meaning of Section 8(b) (4) of the Act.
3. Hotel , Motel & Club Employees ' Union , Local 568 , AFL-CIO, is a labor organi-
zation within the meaning of the Act.
4. By inducing and encouraging employees of Leonard Shaffer Company, Inc.,
Arthur A. Kober Company, Inc., Wolfson and Schnoll , Inc., Morris Newmark and
Bros., Inc., Altman Bros., Inc., Allied Plastering Co., Energy Elevator Company,
Henry S. Rau Company , Inc., G-M Iron Works , and Modern Floors, Inc., to engage
in a strike or a refusal in the course of their employment to perform services with an
object of forcing or requiring Leonard Shaffer Company , Inc., Arthur A. Kober
Company, Inc., Wolfson and Schnoll , Inc., Morris Newmark and Bros., Inc., Altman
Bros., Inc., Allied Plastering Co., Energy Elevator Company , Henry S. Rau Com-
pany, Inc., G-M Iron Works , and Modern Floors , Inc., to cease doing business with
Locust Mid -City Club and forcing or requiring Locust Mid -City Club to recognize
or bargain with Hotel , Motel & Club Employees ' Union , Local 568 , AFL-CIO, in
the absence of a certification of said Union as the bargaining representative of Locust
Mid-City Club employees, Respondent engaged in unfair labor practices within the
meaning of Section 8(b) (4) (i ) and (ii ) (B) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Artesian Ice and Cold Storage Co. and United Packinghouse,
Food and Allied Workers , AFL-CIO, Petitioner . Case No.
17-RC-3563. January 25, 1962
DECISION ON REVIEW AND ORDER
On September 14, 1961, the Regional Director for the Seventeenth
Region issued a Decision and Direction of Election in the above-
entitled proceeding, finding that a contract between the Employer and
General Teamsters, Chauffeurs and Helpers Union Local No. 460,
affiliated with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein called the In-
135 NLRB No. 63.