Hotel, Motel & Club Employees' Union, Local 568

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 1060 (N.L.R.B. 1964)

1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT give effect to any checkoff cards, heretofore executed by our
employees , authorizing deductions from their wages for remittance to Local 148.
WE WILL NOT encourage membership in Local 148, or, any other labor
organization of our employees,by conditioning the hire or tenure of employ-
ment or any term or condition of employment upon membership in, affiliation
with , or dues payments to, that organization, or any other labor organization,
except where such conditions shall have been lawfully established by an agree-
ment in conformity with Section 8(a) (3) of the Act.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist Local 485, International Union of Electrical,
Radio & Machine Workers, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing , to engage
in concerted activities for the purposes of collective bargaining or mutual aid
or protection , or to refrain from any or all such activities , except to the extent
that such rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in Section
8 (a) (3) of the Act, as modified by the Labor -Management Reporting and
Disclosure Act of 1959.
WE WILL withdraw and withhold all recognition from Local 148 as collective-
bargaining representative of any of our employees unless and until such labor
organization shall have been certified by the National Labor Relations Board
as the exclusive representative of such employees.
All our employees are free to become, remain , or refrain from becoming or re-
maining, members of any labor organization except to the extent that this right
may be affected by an agreement in conformity with Section 8(a) (3) of the Act.
JOMAR METAL FINISHING CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fifth
Floor , Squibb Building , 745 Fifth Avenue , New York , New York , Telephone No.
751-5500, if they have any question concerning this notice or compliance with its
provisions.
Hotel , Motel & Club Employees' Union , Local 568, AFL-CIO
and Restaurant Management , Inc. Case No. 41-CP-59. June 29,
1964
DECISION AND ORDER
On April 14, 1964, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
violative of 'Section 8(b) (7) (C) of the Act and recommending that
it cease and desist therefrom and take certain affirmative action as set
forth in the attached Decision. Thereafter, the General Counsel and
Respondent filed exceptions to the Trial Examiner's Decision and
supporting briefs, and the General Counsel also filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its power in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Jenkins].
147 NLRB No. 130.
HOTEL, MOTEL & CLUB EMPLOYEES' UNION, LOCAL 568 1061
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiners' Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with certain modifications noted
herein.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, its officers,
agents, and representatives, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order. How-
ever, the following language shall be substituted for paragraph I of
the Trial Examiner's Recommended Order and instead of the attached
notice to the Trial Examiner's Decision marked "Appendix A," the
Respondent shall post the attached notice marked "Appendix I":
1. Cease and desist from picketing, or causing to be picketed, or
threatening to picket or cause to be picketed, Restaurant Management,
Inc., where an object thereof is forcing or requiring Restaurant Man-
agement, Inc., to recognize or bargain with Hotel, Motel & Club
Employees' Union, Local 568, AFL-CIO, as the collective-bargaining
representative of the employees of Restaurant Management, Inc., or
forcing or requiring the employees of Restaurant Management, Inc.,
to accept or select Hotel, Motel & Club Employees' Union, Local 568,
AFL-CIO, as their collective-bargaining representative, in violation
ofSection8(b) (7) (C).
APPENDIX I
NOTICE TO ALL MEMBERS OF HOTEL, M OTEL & CLUB EMPLOYEES' UNION,
LOCAL 568, AFL-CIO, AND THE EMPLOYEES OF RESTAURANT MAN-
AGEMENT, Two.
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 Restaurant Management , Inc., that :
WE WILL NOT picket , cause to be picketed , or threaten to picket
Restaurant Management , Inc., where an object thereof is to force
or require said employer to recognize or bargain with us as the
representative of its employees , or to force or require the em-
1 The modified order prohibits Respondent from picketing in violation of Section
8(b)(7) (C) only.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees of said employer to accept or select us as their collective-
bargaining representative, in violation of Section 8(b) (7) (C)
of the National Labor Relations Act.
HOTEL, MOTEL & CLUB EMPLOYEES'
UNION, LOCAL 568, AFIr-CIO,
Labor Organization.
Dated---- ------------ By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 1700 Bankers Security Building, Walnut and Juniper Streets,
Philadelphia, Pennsylvania, Telephone No. 735-2612, if they have
any question concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter is before Trial Examiner Joseph I. Nachman on a complaint' issued
pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein
called the Act), alleging that since on or about July 6, Hotel, Motel & Club Employees'
Union, Local 568, AFL-CIO (herein called Respondent or Local 568), violated Sec-
tion 8(b) (7) (C) of the Act, by picketing :a restaurant, cocktail lounge, and coffee
shop operated by Restaurant Management, Inc. (herein called RMI or the Company),
with an object of forcing or requiring RMI to recognize or bargain with the Union as
the representative of its employees, or to force or require said employees to accept or
select Respondent as their bargaining representative, which picketing allegedly con-
tinued for more than 30 days without the filing of a representation petition. By its
answer duly filed, Respondent admitted the picketing, the lack of a certification, and
that no representation petition had been filed, but denied that its picketing was for
recognition, contending that such picketing was initially only for the purpose of pub-
licizing that RMI operated a nonunion establishment, and later Changed to protest
the Company's unfair labor practices.
On December 19, the parties entered into a stipulation submitting the case for
decision upon a record consisting of the formal documents, and the transcript of
evidence and the exhibits in an injunction proceeding under Section 10(1) of the
Act, instituted against Respondent in the United States District Court for the Eastern
District of Pennsylvania? In that proceeding the court issued two orders. The
first, dated October 21 (54 LRRM 2337), enjoined all picketing of the Company's
premises, except such as was conducted to truthfully advise the public that the Com-
pany did not employ members of or have a contract with a labor organization. Such
picketing was permitted by the court's order, both on the Market Street side of the
Company's premises as well as on the Commerce Street side, with the proviso that
picketing on Commerce Street cease if it interfered with deliveries to RMI or the
performance of services by employees of third parties. The second order, issued
November 14 (54 LRRM .2533), required the picketing on Commerce Street to
cease because such picketing had interfered with deliveries to RMI, and the per-
formance of services by employees of third parties. Briefs submitted by the Gen-
eral Counsel and Respondent have been duly considered.
1Issued September 13, upon a charge filed August 7. All dates mentioned herein are
1963 , unless otherwise indicated.
2 The proceeding referred to is styled Bernard Samof, Reg. Dir. v. Hotel, Motel and
Club Employees' Union Local 568, AFL-CIO (Restaurant Management , Inc.), 223 F.
Supp. 762.
HOTEL, MOTEL & CLUB EMPLOYEES' UNION, LOCAL 568 1063
Upon the pleadings , stipulations , evidence , and the entire record in the case, con-
stituted as above set forth, I make the following:
FINDINGS OF FACT
1. BUSINESS OF THE EMPLOYER
RMI is engaged in the business of dispensing foods and beverages. Its place
of business involved in this proceeding is in the Penn Center Inn,3 from which it
leases space. In this leased space RMI operates the following facilities: a dining
room and cocktail lounge known as "Singing Waters," 4 and a coffeeshop known as
"Coffee Hour." The operation which began about July 1 was initially on a part-
time basis but, as construction advanced, opened on a full-time basis about July 15.
The complaint alleges, and Respondent admits, that on a projected basis, the annual
gross sales of the establishment involved will be in excess of $500,000, and that it
will receive food supplies originating outside Pennsylvania valued at in excess of
$50,000. Accordingly, I find that RMI is engaged in commerce to an extent required
by the Board for the assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits, and I find that Respondent is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The fiacts
1. Description of the premises
The customer entrance to the space occupied by RMI is on Market Street, and
its premises extend to the rear of the building on Commerce Street. A covered
delivery dock, recessed into the building and leading directly into the kitchen area,
is used exclusively by RMI for the receipt of deliveries, particularly provisions pur-
chased from various suppliers. Across Commerce Street, is the entrance into a
private garage for tenants of a high rise apartment building. Commerce Street is
a narrow one-way street, one block long, with very little pedestrian traffic.
2. Chronology of events
In the latter part of June, Roger Gagnon, general manager of the restaurant in-
volved, was in the banquet room area of the establishment conducting a training
class for employees recently hired in anticipation of the opening. James Clark
and Drew, vice president and business agent, respectively, of Respondent, interrupted
the meeting. After the parties had identified each other, and in answer to Gagnon's
question as to the purpose of the visit, Clark replied, ". . .. that he was interested
in having a labor agreement signed." Gagnon told Clark that such matters were
outside his authority, and referred Clark to Hrabrick, president of RMI. Clark
then asked Gagnon to inform Hrabrick that the Union wished to meet with him,
and that Hrabrick "had better do it as soon as possible, if he knew what was good
for him." Gagnon promised to deliver the message, and Clark and Drew left.5
8 A motel at 20th and Market Streets, in the city of Philadelphia.
4 RMI also has the use of a banquet room where a substantial number of guests desiring
a private room, can be accommodated.
6,Clark denying that he asked Gagnon for a contract, first testified that he told Gagnon
that "quite a few" members of the Union were employed at the establishment, and he
(Clark) "wanted to see if I had any right to represent any of them." He then changed
this by saying that he did not mean "to represent" them, but that he wanted to find out
where his members were working and what they were doing. Clark admitted that he
usually got such information from the employees, and when asked why he went to the
employer for It, again changed his testimony by saying that the purpose of his visit was to
find out if RMI "intended to hire union people or people off the street, or whatever."
I find Clark's testimony in this respect to be contradictory, and therefore credit Gagnon's
version of this incident. Drew did not testify.
1064 DECISIONS OF . NATIONAL LABOR RELATIONS BOARD
On July 6, Respondent began picketing the restaurant with banners reading:
TO THE PUBLIC:'
COFFEE HOUR
DOES NOT-HAVE A
LABOR
AGREEMENT
WITH '
HOTEL, MOTEL & CLUB
EMPLOYEES UNION
LOCAL 568-AFL-CIO 6
For at least more than a week, under circumstances that will hereafter be related,
the picketing which occurred was confined to the customer entrance on the Market
Street side of the restaurant, and until the restaurant fully opened for business about
July 15 the picketing was only during the hours the premises were open for business.
After July 15 and until July 31, when a change took place in the nature of the
picketing, such picketing was from 7 a.m.. to 1 o'clock the following morning.?
On July 7, a plumber foreman working on the construction of the Penn Center
Inn told Hrabrick that the plumbers might have to leave the job because of the
picketing, and suggested that Hrabrick call James O'Neill, president of the Build-
ing Trades Council, who might be of some assistance in bringing about a cessation
of the picketing. Hrabrick telephoned O'Neill who suggested that Hrabrick meet
with representatives of Respondent. O'Neill made the arrangements, and the first
such meeting was held at the Penn Center Inn the morning of July 8. Present for
the Company were Hrabrick and his general manager, Gagnon; for the Union,
Stoltz, Clark, and Drew. O'Neill, as the person who had brought the parties to-
gether, was also present. Hrabrick, Gagnon, Stoltz, and Clark testified herein.8
The Company's version and the Union's version of what took place at this meeting,
and at a subsequent meeting the following day (July 9), are in conflict but, for
reasons hereafter stated, resolution of this conflict is unnecessary for the disposition
of this case.9 Suffice it to say, the picketing which was suspended at some point
Q The entire sign was printed except for the words "Coffee Hour," which were hand-
lettered. The words "Not" and the words "Labor Agreement," are in letters approximately
twice the size of those in the remainder of the sign.
9 According to the witnesses presented by the General Counsel, there was no picketing
on Commerce prior to July 31. Lawrence Stoltz, president of Local 568, testified that he
ascertained that "a great number of people" In cars were using Commerce Street to get
into the garage entrance to the motel, thence inside the building to the lobby, and from
there, still inside the building, to the restaurant, and that to reach such persons, pickets
were placed on Commerce Street beginning about July 15. Stoltz did not claim to have
seen the picketing on Commerce Street. However, Respondent's witness Delvecchlo, testi-
fied that he picketed the restaurant every day from 7 to 10 a.m., and that beginning
about mid-July he picketed both on Market Street and Commerce Street. In view of my
conclusions, hereafter set forth, I find it unnecessary to resolve this conflict.
Neither O'Neill nor Drew testified.
Hrabrick and Gagnon both testified that at these meetings Stoltz refused an offer of
an election and demanded "a labor contract" ; that a form contract was presented by
Stoltz and Clark which contained inter alia , provisions for recognition of the Union, a
union shop, and check-off of dues, and that this was discussed paragraph by paragraph;
that to permit such discussion the Union ceased its picketing on July 8; and that at one
point during this discussion Stoltz told Hrabrick, in effect, that it was up to the latter
to get the employees to join the Union, and that this is done by taking the employees
"into your office and tell them to sign here."
Stoltz and Clark denied that they requested recognition or a contract. They testified,
in substance, that they told Hrabrick that the Union did not represent a majority of the
employees, had no right to ask, and did not ask for a contract, in fact that it would not
accept a contract if one was tendered ; that it was Hrabrick who suggested that the
Union's lack of majority could be cured by the Company hiring the remainder of its per-
sonnel needs through the Union, and thus enable the Union to acquire majority status and
demand recognition, and that this was the reason for the July 8 and 9 meetings . Stoltz
admitted, however, that the purpose of the meetings with management was "to find ways
and means to remove the picket line," and that "if all of the people were members of the
Union, I would have the right to represent them, and a contract was signed . . . that the
line would be removed . . . . " Clark admitted that his reason for wanting a meeting with
management officials of RMI was to find out "if they were going to be, represented by the
Union," and "if they were going to have a labor agreement." At another point , however,
HOTEL, MOTEL & CLUB EMPLOYEES' UNION, LOCAL 568 1065
during the aforementioned negotiations was admittedly resumed . on July 11, when
the negotiations failed to produce a resolution of the problem.
At 5 p.m. July 31, the picket signs theretofore used by Respondent were changed
to read:
SINGING WATERS
EMPLOYEES
ON
STRIKE
We request your cooperation
HOTEL, MOTEL & CLUB
EMPLOYEES UNION
LOCAL 568 AFL-CIO 10
Stoltz admitted that this sign was used from July 31 until September 9 and that
during that period the Union picketed both the Market Street and Commerce Street
entrances to the premises of RMI.11 Stoltz also admitted that with this change in
the picket signs he reported the facts to the Teamsters Joint Council and secured the
latter's approval of the picketing so that Teamsters making deliveries to RMI would
respect Respondent's picket lines; as Stoltz put it, he changed to the "strike" sign
because the building trades and teamsters "are a little bit cautious, and they won't
respect publicity picket lines, but they do respect strike lines." Stoltz testified that his
purpose in changing the picket sign, was to protest the Company's alleged unfair
labor practices in discriminatorily discharging nine employees.12
Immediately following the change in the picket signs, as above set forth, truck-
drivers employed by persons doing business with the Company refused to make
deliveries to the restaurant because of the presence of pickets bearing the "strike"
legend.13 There were many instances of this between August 1 and September 9.
A few examples will suffice.
1. Drivers for a private garbage collection firm refused to pick up garbage and
rubbish at the normal time of about 9:30 a.m. To get the work done, it was ar-
ranged for the collections to be made between 5 and 6 a.m.. This allegedly posed
a problem for the Company because they had no one on the premises at that hour
to see that the work was properly done.
Clark testified that he had no purpose in attending those meetings ; that he went there
"just as a curiosity" ; and there was "nothing we wanted to accomplish" ; that he and
Stoltz "were just wasting our time." Clark also admitted that the picketing was resumed
on July 11, because Hrabrick would not agree to hire people from the Union and thereby
prevented the Union from becoming the majority representative.
"The first line of the signs is hand-lettered. The rest of the sign is printed in black
letters, except that the word "STRIKE" is in red, and is over three times as large as any
other portion of the sign.
"From September 9, when hearing on the 10(1) petition began before the district court,
and until October 22, when the first decision by the district court issued, the Union, in
compliance with its commitment made to the court, voluntarily suspended all picketing.
On October 22 Respondent resumed its picketing on both Market Street and 'Commerce
Street with the first sign set forth above, and this continued until November 14, when
the court enjoined all picketing on Commerce Street. Since November 14, picketing has
presumably continued on Market Street with the first sign.
12 These alleged unfair labor practices are the subject of a charge filed with the Regional
Office (Case No. 4-CA-3073), a copy of which is in the exhibit file. The record does not
indicate what disposition, if any, has been made of this charge. The charge was executed
August 14 and filed with the Region August 16 and recites that the alleged discriminatory
discharges occurred on July 27 or 28.
11 The record discloses only two specific instances of what the General Counsel contends
were refusals to deliver before July 31: (1) Prior to the full opening of the restaurant on
July 15, drivers were to deliver seating equipment through the Market Street entrance,
and they refused to do so because of the pickets. At the request of the Company, the
drivers made the deliveries through the dock entrance on Commerce Street. The Company
contends that it was inconvenienced by this because it was-necessary to bring the furni-
ture through the kitchen, and that this interfered with workmen installing kitchen equip-
ment necessary to put the kitchen in operation. (2) In mid-July, a driver for an inter-
state freight carrier refused to deliver a milk dispenser required by law in the operation
of a restaurant , because "consignee on strike ," and returned the shipment to its terminal.
The Company took care of this situation'by obtaining a dispenser from another source.
The Company also claims that the other drivers refused to deliver through the rear door
on Commence Street prior to "July 31 . However , We details of such refusals , and the effect
thereof, if any, upon the Company , is not shown by the record.
1066 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
2. There were several instances where drivers for motor carriers of freight re-
fused to cross the ' picket line to deliver shipments. In each instance the Company
obtained the goods by going to the carriers' dock and picking up the shipment that
the driver had refused to deliver. The incidents involved drivers employed by Trans-
american Freight Lines, Continental Freight Lines, and Highway Express. In one
such instance the driver for Continental Freight Lines, after talking to the picket,
refused to unload although his truck was standing on Commerce Street, by the load-
ing dock. General Manager Gagnon told the driver if he would push the goods
to the tailgate of the truck, employees of the restaurant would unload. The delivery
was accomplished in that way.
3. Meats, groceries, and other provisions are purchased from various suppliers
who deliver to the restaurant. Normally, the driver places the goods at the door of
the pantry, refrigerator, or deepfreeze, according to the nature of the commodity.
Some commodities are delivered rather infrequently, and others as frequently as
2 or 3 times a week. During the period mentioned there were numerous instances
where drivers of such suppliers refused to deliver to RMI. However, delivery of
the goods was obtained in virtually every instance. In some cases the drivers would
stop on Commerce Street, push the goods to the tailgate of the truck, and RMI
would direct its employees to unload and place the goods in the appropriate storage
facility. In such instances the RMI employees assigned to this work were taken
from other duties. In other instances, drivers for suppliers refused to stop at the
premises of RMI. In such cases the supplies were obtained by an official of RMI
picking them up at the premises of the supplier, or executive personnel of the
supplier making the delivery to the premises of RMI. Because executive personnel
of the supplier had. to make such deliveries when they could, usually in the late after-
noon or early evening, this, at times, caused delay in receiving the goods.
In the interval between, the suspension of the picketing on September 9 and its
resumption on October 22,14 drivers of the suppliers made their deliveries in normal
fashion, as,they had prior to July 31. However, when the picketing was resumed
on October 22, drivers again refused to make deliveries to RMI. Deliveries were
effected, however, apparently in all instances by (a) drivers stopping on Commerce
Street, pushing the goods to the tailgate of the truck, from which point they were
unloaded by employees of RMI; (b) management personnel of suppliers delivering
to the premises of RMI; (c) RMI personnel picking up supplies at the premises of
the supplier; or (d) RMI personnel going to the docks of carriers to pick up
shipments.15
3. Discussion and conclusionary fiindings
(a) The statutory provisions
The Board's interpretation of Section 8(b)(7)(C)16 of the Act, including the
quoted proviso, is that Congress thereby framed a general rule covering all picket-
14 The resumed picketing, as above pointed out, was with the so-called informational
sign used prior to July 31.
15 What the situation has been since November 14, when the court enjoined all picketing
on Commerce Street, the record does not disclose.
19 Section 8(b) (7) (C) makes it an unfair labor practice for a labor organization or its
agents:
(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed,
any employer where an object thereof is forcing or requiring an employer to recognize
or bargain with a labor organization as the representative of his employees, or forc-
ing or requiring the employees of an employer to accept or select such labor organiza-
tion as their collective bargaining representative, unless such labor organization is
currently certified as the representative of such employees:
# # 4 * M t
(C) where such picketing has been conducted without a petition under sec-
tion 9(c) being filed within a reasonable period of time not to exceed thirty days
from the commencement of such picketing: . . . Provided further, 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 em-
ployed by any other person in the course of his employment , not to pick up, de-
liver or transport any goods or not to perform any services.
Nothing in this paragraph ( 7) shall be construed to permit any act which would
otherwise be an unfair labor practice under this section 8(b).
HOTEL, MOTEL & CLUB EMPLOYEES' UNION, LOCAL 568 1067
ing conducted with an object of recognition or organization, carried on for more
than the prescribed period without the .filing of a representation petition, and then
excepted from the general proscription a particular .kind of picketing which, al-
though for an organizational or recognition objective, was addressed primarily to
the public, was truthful in nature, and did not to any significant extent interfere with
deliveries or the rendition of services by employees of any other employer. See
Charles A. Blinne d/b/a C. A. Blinne Construction Company, 135 NLRB 1153;
Leonard Smitley, et al., d/b/a Crown Cafeteria, 135 NLRB 1183, order sustained
on review, 327 F. 2d 351 (C.A. 9). Accordingly, to constitute a violation of Section
8(a) (7) (C), the evidence must establish that: (1) the picketing union is not cur-
rently certified as the representative of the employees of the picketed employer;
(2) the picketing had a recognition or organizational objective; 17 (3) was con-
ducted for more than 30 days (or under some circumstances a shorter period)
without a representation petition being on file; and (4) the picketing was not for
the purpose of truthfully advising the public that the picketed employer does not
employ members of or have a contract with the Union or, although for that purpose,
it had, the effect of inducing employees of other employers to refuse to perform
services.
In the instant case, Respondent admits the lack of current certification, and that
the picketing continued for more than 30 days without a representation petition.
Respondent's defense is predicated on the thesis that none of the picketing had
a recognition or organization object, but even if such object be found, its picketing
was protected by the publicity proviso in Section 8(b)(7)(C) and that such re-
fusals to make deliveries as did occur did not have the requisite actual impact upon
the business of RMI. Additionally, Respondent argues that its picketing after July
31 is in any event protected because of the unfair labor practices by the employer.
I proceed to a consideration of these contentions, and shall discuss separately the
picketing which occurred prior to July 31, and that which occurred on and after
that date.
b. The picketing prior to July 31
(1) Its object
The signs carried by Respondent's pickets during this period proclaimed that RMI
"does not have a labor agreement with" the Union. This is substantially in the
language of the proviso. While the object of picketing can ordinarily be determined
only by considering all the circumstances bearing upon that question, the Board
has held that picketing with a sign bearing a legend of the type above mentioned
is evidence of a recognition objective. See Crown Cafeteria, supra, at 1185; Ameri-
can Federation of Grain Millers, Local Union No. 16 (Bartlett and Company, Grain)
141 NLRB 974, 979. To this must be added the fact that approximately a week
prior to the commencement of the picketing, Clark called on Gagnon for the stated
purpose of "having a labor agreement signed." In addition, Stoltz admitted that
"if all of the people [employed by RMI] were members of the Union, I would
have a right to represent them, and a contract was signed," the picketing would cease.
These facts impel the conclusion, and I find, that an object of Respondent's picket-
ing of RMI prior to July 31 was recognition.18
(2) The effect of the publicity proviso
I find nothing in the evidence, or in the manner in which this picketing was con-
ducted, to indicate that it had any purpose other than to advise the public that
RMI did not have a contract with the Union. Picketing for such a purpose is
precisely what the proviso protects, provided the picketing does not have the effect
of causing employees of other employers to refuse to perform services. While
there was one failure to make a delivery and a few others had to be changed in a
manner which probably caused the Company some inconvenience, all deliveries
were eventually made. There is no evidence that during this period the Union
17 Picketing which does not have a recognition or organizational object is not proscribed
by Section 8(b) (7). See cases cited supra, and John F . LeBus , Regional Director v.
Building and Construction Trades Council of New Orleans and Vicinity , et al . ( Houston
Contracting Co.), 199 F. Supp . 628, 632 (D.C. E. La.).
le The finding of a recognition object based on these admitted facts is the reason I find
it unnecessary to resolve the conflict in the evidence as to what transpired, at the
July 8 and 9 meetings between representatives of the Union and representatives of man-
agement. See footnote 9, supra.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resorted to union procedures available to it to induce other labor organizations
and their members to refrain from delivering to or otherwise performing services
at the premises at RMI. All provisions received from suppliers during this period
were made at the rear entrance , with some suppliers delivering .several times a week,
yet there is no evidence that any employee of these suppliers refused during this
period to perform services. Upon these facts, I must and do conclude that the
occasions when drivers refused to deliver through the Market Street entrance were
isolated and had no real impact on the operation of the Company's business, and
hence that Respondent's picketing during this period did not lose the protection
of the proviso in Section 8(b) (7) (C).
Accordingly, I find and conclude that Respondent's picketing of RMI prior to
July 31 was not violative of Section 8(b) (7) (C) of the Act.
c. The picketing on and after July 31
(I) Its object
As set forth above , Respondent on July 31 changed its picket signs to proclaim
that the employees of RMI were "on strike" and requested "cooperation ." After
this change in the picket sign , Respondent at no time communicated with the
Company to advise the latter of any change in the purpose of the picketing. Al-
though Respondent claims that its picketing on and after July 31 was to protest
the alleged discriminatory discharge of employees , it is of some significance that
Respondent did not communicate this fact to the Company , or ask the Company
to take any action with respect thereto . While the discharges may have provided
Stoltz with an excuse , I find and ' conclude on the basis of the entire record that his
reason for changing the picket signs, at least in part , was that the conferences with
management failed to produce the recognition the Union sought, and the picketing
prior to July 31, had not, as Stoltz admitted , provided the desired pressure because
building trades 19 people and teamsters "won't respect publicity picket lines,"
whereas an "on strike" sign, to which Respondent resorted , would be "more effec-
tive" because building trades and teamsters "do respect strike lines ." Accordingly,
I find and conclude that an object of Respondent 's picketing on and after July 31
was, and continued to be, to obtain recognition from RMI , within the meaning of
Section 8 (b)(7). Cf. Bartlett and Company, Grain, supra,.979-980..
(2) Application of the 8 (b)(7)(C) proviso to this picketing
For recognitional or organizational picketing to be privileged by the proviso re-
ferred to, it must be "for the purpose of truthfully advising the public that an
employer does not employ members of or have a contract with 'a labor organization."
Jack Picoult, 144 NLRB 5. The picket signs here were not so limited; on the
contrary , they proclaimed the existence of a strike against the employer . The area
patrolled was not limited to the Market Street entrance where the public would
normally enter the premises to do business with the Company , but extended to the
Commerce Street dock where very few, if any , members of the public walk, and
where its principal , if not its entire, effect would be on truckdrivers making de-
liveries to RMI . In at least one instance a driver in the presence of the picket stated
that he was told by the picket that RMI was "on strike." 20 In these circumstances,
I find and conclude that this picketing was not for the limited purpose of com-
municating to the public that RMI did not employ members of or have a contract
with Respondent . On the contrary , it was, as Stoltz admitted he intended it Ito be,
a "signal" to organized labor. Local 3, International Brotherhood of Electrical
Workers (Jack Picoult , et al., d/b/a Jack Picoult ), 144 NLRB 5. Moreover, even
if it be assumed that picketing during this period was within the terms of the
Section 8 (b) (7) (C) proviso, the protection thereof was lost by the substantial
number of work stoppages by drivers who refused to make deliveries to RMI be-
cause of the picketing.
Respondent 's contention that the failure of drivers to make deliveries to RMI
did not have "the effect" contemplated by the proviso because the goods were in
each instance ultimately obtained by RMI , I reject as without merit. San Diego
• 10 Some construction at Penn Center Inn, where RMI occupies space, was still in prog-
ress and required the services of building trades employees.
20 Although all the pickets were selected by and under the control of Respondent, it
offered no testimony to rebut this statement, nor explained why such testimony was not
available to it.
HOTEL, MOTEL & CLUB EMPLOYEES' UNION, LOCAL 568 1069
County Waiters and Bartenders Union Local 500 (Joe Hunt's Restaurant), 138
NLRB 470. In that case where drivers refused to deliver liquor and beer to a
restaurant because of the presence of pickets carrying informational signs and the
restaurant owner had to pick up such commodities at the dealer or at a service
station two blocks away, the nearest point to which the drivers would deliver, the
Board disposed of the identical contention thus [at p. 471]:
It is clear that the picketing compelled the Employer to modify its method
of doing business with suppliers whose products were essential to its daily
operations and that the picketing has disrupted and interfered with the Em-
ployer's business. Accordingly, we find that the impact on the picketed Em-
ployer's business was sufficient to constitute "an effect" within the meaning
of Section 8(b) (7) (C).
I likewise reject Respondent's contention that its picketing after July 31 cannot
be held to be violative of Section 8(b)(7)(C) because it was in protest of alleged
unfair labor practices on the part of RMI. I have heretofore found that an object of
Respondent's picketing during this period was recognition. The fact, if it be a fact,
that Respondent may have had other objectives, entirely legal, or that RMI may have
engaged in unfair labor practices, does not immunize Respondent's unlawful conduct.
Charles A. Blinne d/bla C. A. Blinne Construction Company, 135 NLRB 1153,
1163; International Typographical Union (The Greenfield Printing and Publishing
Co.), 137 NLRB 363, 364; J. W. Mays, Inc., 145 NLRB 1091.21
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, it will be
recommended that it be required to cease and desist therefrom, and take certain
affirmative action necessary to effectuate the policies of the Act. -
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. RMI is an employer engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
3. By picketing RMI on and after July 31, with an object of forcing or requiring
RMI to recognize or bargain with Respondent as the representative of the employees
of RMI, although Respondent was not currently certified as the representative of
said employees, without a petition under Section 9(c) of the Act having been filed
within 30 days after the commencement of such picketing, Respondent has engaged
in unfair labor practices proscribed by Section 8(b) (7) (C) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Respondent's picketing of RMI prior. to July 31 was not violative of Section
8(b) (7) (C) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in the case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that Hotel , Motel & Club Employees'
Union, Local 568 , AFL-CIO, its officers , agents, representatives , successors, and
assigns, shall:
1. Cease and desist from picketing , or causing to be picketed , or threatening to
picket or causing to be picketed , Restaurant Management , Inc., where an object
thereof is to force or require Restaurant Management , Inc., to recognize or bargain
with Hotel, Motel & Club Employees ' Union , Local 568, AFL-CIO, or any other
labor organization , as the collective-bargaining representative of the employees of
Restaurant Management , Inc., or to force or require the employees of Restaurant
Management ,, Inc., to accept or select Hotel , Motel & Club Employees ' Union, Local
21 Respondent's reliance on Fanelli, Ford Sales, Inc., 133 NLRB, 1498, on the facts of this
case, is misplaced. In Fanelli the Board found that the sole object of the picketing was to
secure reinstatement of a discharged employee. As I have found, the object of Respond-
ent's picketing was not so limited, hence Fanelli Ford has no application. See District 65,
Retail, Wholesale & Department Store Union (Eastern Camera & Photo Corp.), 141 NLRB
:991, footnote 15.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
568, AFL-CIO, or any other labor organization , as their collective -bargaining repre-
sentative , unless and until Hotel , Motel & Club Employees ' Union , Local 568, AFL-
CIO, or such other labor organization , is, at the time of such picketing , currently
certified as the collective-bargaining representative of such employees.
2. Take the following affirmative action which , it is found ,. will effectuate the
policies of the National Labor Relations Act, as amended:
(a) Post in conspicuous places in its business offices and meeting halls in Phila-
delphia, Pennsylvania , and all other places where notices to members are customarily
posted , copies of the attached notice marked "Appendix ." 22 Copies of said notice,
to be furnished by the Regional Director of the Fourth Region of the National Labor
Relations Board (Philadelphia , Pennsylvania ), shall, after being signed by its
authorized representative , be posted by it immediately upon receipt thereof, and
maintained by it for 60 days thereafter . Reasonable steps shall be taken to insure
that said notices are not altered , defaced , or covered by any other material.
(b) Sign and forthwith mail to the aforesaid Regional Director such additional
copies of the aforesaid "Appendix ," as said Regional Director may request , for post-
ing by Restaurant Management , Inc., said employer being willing , at the latter's
restaurant premises in Philadelphia , Pennsylvania , known as "Singing Waters," where
notices to employees thereof are customarily posted.
(c) Notify said Regional Director in writing within 20 days from the date of this
Decision what steps it has taken to comply herewith 23
22 If this Recommended Order is adopted by the Board , the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of a Trial Examiner" in the
notice . If the Board 's Order is enforced by a decree of the United States Court of Appeals,
the notice will be further amended by the substitution of the words "a Decree of the
United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order."
23 In the event this Recommended Order be adopted by the Board , this provision shall
be modified to read: "Notify said Regional Director , within 10 days from the date of this
Order, what steps it has taken to comply herewith."
Standard Candy Company and American Bakery and Confec-
tionery Workers , Local 128, affiliated with American Bakery
and Confectionery Workers' International Union , AFL-CIO.
Case No. 26-CA-16.3. June 29, 1964
DECISION AND ORDER
On April 8, 1964, Trial Examiner Reeves R. Hilton issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
147 NLRB No. 116.