Hotel, Motel, Restaurant Employees

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 1049 (N.L.R.B. 1977)

HOTEL, MOTEL, RESTAURANT EMPLOYEES
Hotel, Motel, Restaurant Employees and Bartenders
Union, Local 737, AFL-CIO and Jets Services,
Inc. Case 12-CP- 193
August 31, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
Upon a charge duly filed by Jets Services, Inc.
(herein Jets), against Hotel, Motel, Restaurant
Employees and Bartenders Union, Local 737, AFL-
CIO (herein Local 737 or Respondent), the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 12, on January 16,
1976, issued and served on the parties a complaint
alleging that Respondent violated Section 8(b)(7)(C)
of the Act by engaging in recognitional picketing at
Jets' food service facilities at the Kennedy Space
Center for more than a reasonable period of time
without filing a representation petition for a Board
election.
A hearing was held on February 18 and 19, 1976,
before Administrative Law Judge Ivar H. Peterson at
which time certain exhibits were received into
evidence and certain stipulations were entered into
on the record. The parties agreed, inter alia, that the
stipulation of facts submitted by the General Counsel
may be retyped and received into evidence as
General Counsel's Exhibit 2. They further agreed
that the stipulation may be substituted in lieu of oral
testimony, subject to approval by the Board. At the
request of the parties, the Administrative Law Judge
referred the proceeding to the Board for decision.
Thereafter, on March 12, 1976, the General
Counsel filed a motion to correct the transcript and
to receive the exhibit into the record with a
stipulation of facts and an addendum signed by the
parties attached. The General Counsel moved that
the Board correct the transcript in certain respects
and that the Board receive General Counsel's Exhibit
2 into the record. He submitted that the parties had
no objection to the granting of the motion.
By order dated April 1, 1976, the Board approved
the stipulation, transferred the proceeding to itself,
and set a date for the filing of briefs. Thereafter,
briefs were filed by the General Counsel, Jets, and
Respondent. The order also granted General Coun-
sel's above-described motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record herein,
including the briefs, and makes the following:
231 NLRB No. 176
FINDINGS OF FACT
I. THE BUSINESS OF JETS SERVICES, INC.
Jets, a Florida corporation with its principal place
of business located in Jacksonville, Florida, provides
food services at various Government installations
throughout the country. During the past year, Jets, in
the course and conduct of its business operations,
received in excess of $1 million for services per-
formed in connection with contracts with the U.S.
Government. During the same period, it purchased
and received goods, materials, and supplies valued in
excess of $50,000, shipped to it directly across the
state lines. Since on or about August 16, 1975, Jets
has operated a concessionaire food service facility at
Kennedy Space Center (hereinafter referred to as
KSC) at Merritt Island, Florida, and projects its
gross revenues therefrom will be in excess of
$750,000 annually. It also projects that during the
same period its purchases of goods, supplies, and
materials for the KSC operation will be in excess of
$50,000 from Florida suppliers who themselves
receive said goods, supplies, and materials directly
from outside the State of Florida.
The parties stipulated, and we find, that Jets is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act. We also find that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. RESPONDENT'S STATUS AS A LABOR
ORGANIZATION
The parties stipulated, and we find, that Respon-
dent is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
During recent years prior to August 16, 1975, ARA
Services, Inc. (ARA), was under contract with the
National Aeronautics and Space Administration
(NASA) to provide food services at KSC. Local 737
was recognized by ARA as the exclusive bargaining
representative for its food service employees. ARA
and Local 737 were parties to successive collective-
bargaining agreements, the most recent of which
became effective May 23, 1974, and was not due to
expire until May 31, 1977. As of August 15, 1975,
there were approximately 34 employees covered by
the contract.
On or about July 17, 1975, Jets, as the result of
competitive bidding, was awarded a "concession-
aire" food service contract at KSC designed to
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replace ARA's contract. ARA's contract with NASA
had been a "mission" contract.' Jets commenced
operations on August 16, 1975.
In December 1974, Jets had informed representa-
tives of NASA that, according to its past experience
involving Government contracts, Jets would expect
to hire 90 percent of ARA's current work force if Jets
was awarded the concession. Local 737 was, in turn,
apprised of this by NASA officials. However, Jets at
no time assumed a contractual obligation to employ
any of ARA's work force at KSC.
On or about July 30, 1975, Thomas Gibbs, vice
president of Jets, received a call from Paul McCast-
land, an International vice president and administra-
tor of Local 737. McCastland stated to Gibbs that he
was calling Lawrence Barnett, president of Jets, to
request an early or immediate meeting to discuss
contract negotiations. Gibbs replied that such a
request was premature and that Jets wanted to wait
until it had met its hiring requirements and had
determined whether Local 737 represented a majori-
ty.
Shortly after this conversation, Gibbs received a
phone call from an admitted business agent of Local
737 who asked if Jets intended to sign the contract
ARA had with Local 737. Gibbs informed the caller
of his earlier conversation with McCastland.
On August 15, 1975, a meeting was held between
the parties and others at KSC. Representing Local
737 were Business Representative Ed Page and
counsel for Local 737. Jets' president, Barnett, and
Gibbs were in attendance for Jets. Jets was not
represented by counsel at this meeting. Representa-
tives of other unions at KSC were also in atten-
dance.2
Counsel for Local 737 informed those at the
meeting that it was reported to him that several
employees of Jets had been fired without being given
a chance to perform for Jets; also, that Local 737 had
been previously informed that Jets was going to hire
90 percent of the ARA work force and that it was
Local 737's opinion that the only reason for the
present employment action by Jets would be to
destroy the Union's majority.
Barnett replied that Jets had no intention of
breaking the Union. Gibbs added that if Local 737
showed it represented a majority of employees Jets
would negotiate a contract with it. Barnett also
stated that a representative of Jets interviewed the
former ARA employees who had applied for jobs
with Jets along with other applicants and that Jets
A "mission" contract is essentially a "cost-plus" contract. A "conces-
sionaire" agreement is not "cost-plus." Rather, the concessionaire's profit, if
any, is determined by what remains of its income from sales deducting all
costs of operations. Jets is obligated to pay the wages and fringe benefits as
set forth in wage determinations issued by the Department of Labor.
I Member Jenkins mistakenly finds that until the August 15 meeting
had hired the best available personnel. He also stated
that he wanted to make clear that Jets had not fired
anyone and that Jets was hiring only the ARA
employees it wanted to employ. Further, the ARA
employees not offered employment were persons
who Jets believed were not qualified or failed to show
the proper motivation to work.
Counsel for Local 737 stated that the Local was not
interested in a contract but in keeping the ARA
employees employed. He added that Jets could not
just fire these employees, many of whom were
longtime employees, and that if the Company were
really sincere about discharging certain employees
for incompetence it should keep the entire ARA
employee complement working, keep the contract in
effect, fire those workers it believed incompetent, and
use the grievance-arbitration procedure to determine
if they actually were incompetent. Barnett said that
this approach was not acceptable to Jets and that
Jets was aware of its legal rights and had made its
decision as to employment.
During the meeting, counsel for Local 737 in-
formed Jets that he had full authority from the
Union including strike action and would use such
authority unless the ARA employees were hired. The
other union representatives stated that they would
not tolerate this type of situation and would boycott
Jets' food service operations. The meeting ended
without a resolution of the dispute.
At no time prior to the August 15 meeting did Jets
directly notify Local 737 of the number and names of
the employees it would employ or that it would not
be employing any of the ARA employees.
ARA employees were interviewed by Jets around
the end of July 1975. All employees who were to be
employed were notified about August 8 or 9. Those
who were not selected received no notification
whatsoever.
On or about August 16, 1975, Jets commenced
operations at KSC with an employee complement of
34, 8 of whom were former ARA employees who had
been represented by Local 737. The remainder were
hired as a result of interviews with local employment
agencies and through other means.
On or about August 18, 1975, Local 737 filed a
charge against Jets alleging violations of Section
8(a)(1), (3), and (5) of the Act (Case 12-CA-6889).
The charge alleged that Jets had unlawfully dis-
charged the former ARA employees who were not
employed by Jets on August 16, 1975, and that Jets
has refused to bargain since on or about August 16,
Respondent had no reason to believe that Jets would not be hiring virtually
all of the then employed cafeteria workers. Our colleague apparently relies
on this fact to support his conclusion that Jets' dealing with Respondent was
less than even-handed. The fact is, however, that the August 15 meeting was
called specifically to allow Respondent an opportunity to protest to Jets its
decision not to rehire the former ARA employees.
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HOTEL, MOTEL, RESTAURANT EMPLOYEES
1975. Local 737 presented no evidence in support of
the charge and subsequently withdrew it on or about
September 10, 1975.
On August 18, 1975, Local 737 commenced
picketing Jets. Pickets carried signs stating: "Hotel,
Motel, Restaurant Employees and Bartenders
Union, Local 737, AFL-CIO-On Strike-
Against-Jets Food Services-Unfair."
On September 18, 1975, Local 737 filed a charge
against Jets, alleging violations of Section 8(a)(1) and
(3) of the Act (Case 12-CA-6924). Respondent
asserted that by discharging 30 or more employees
because of their support for Local 737 Jets intended
to and did destroy its majority status. A cover letter
accompanying the charge requested a Steel-Fab
bargaining order if the facts so warranted. (Steel-Fab,
Inc., 212 NLRB 363 (1974).) However, the letter also
stated that the language of the charge should not be
construed as alleging an 8(a)(5) allegation. After
presentation of evidence by both sides, the charge
was withdrawn on October 3, 1975.
On September 18, 1975, Jets filed a charge in Case
12-CP-191, alleging that Local 737 was violating
Section 8(b)(7)(C) of the Act by picketing without
having filed a petition for a period longer than 30
days.
The picketing which began on August 16, 1975,
continued without interruption until October 2, 1975.
Throughout the picketing Local 737 distributed a
handbill to the public urging individuals not to eat at
KSC cafeterias "unless and until these people
[former ARA employees] are put [black to work
Upon notification by Region 12 that the Regional
Director had determined that reasonable cause
existed to believe that the picketing by Local 737 was
with an object proscribed by Section 8(b)(7)(C),
Local 737 immediately halted its picketing on
October 2, 1975.
Thereafter, Local 737 entered into an informal
settlement agreement later approved by the Regional
Director. As a result thereof, Local 737 voluntarily
agreed to cease all picketing of Jets for 21 days from
October 2, 1975. In compliance therewith, Local 737
in fact ceased picketing for the stated period, and
posted all required notices. To date the settlement
agreement has not been set aside.
A number of phone calls between counsel for Jets
and Local 737 ensued concerning the possibility of
settling their dispute, including one conversation on
October 14, 1975. During that conversation, counsel
for Local 737 raised the issue of the possible
implementation of a pretrial hiring list. Counsel for
Jets stated that he had not discussed that possibility
with Jets and was unsure as to how Jets would
receive such a proposal. However, he stated that he
would communicate the substance of their discussion
to his client. Counsel for Jets then stated that he
would need to know how many former ARA
employees still wanted to work for Jets and would
therefore be the subject of the preferential hiring list.
Counsel for Jets indicated that he would like to have
this information before discussing the topic with Jets.
Counsel for Local 737 answered that he was unaware
of the number of former ARA employees still
desiring employment with Jets but that he would
contact Ed Page, who would be able to ascertain the
requested information and thereafter advise counsel
for Jets. At no time in that conversation did either
party mention that recognition of Local 737 by Jets
was or was not required as a condition of settlement.
On October 21, 1975, counsel for Local 737 sent
Harold Gooch, chief of the labor relations section of
NASA at KSC, a mailgram informing him that Local
737 would picket Jets beginning Friday, October 24,
1975. The advance notice was given to allow NASA
time to establish reserve gates.
On October 24, 1975, counsel for Local 737 sent
Jets a mailgram stating that the sole object of the
picketing was to protest the discharge of former
ARA employees represented by Local 737 and that
picketing would cease when those employees were
rehired. The mailgram also disclaimed any other
object of the picketing.
Beginning on October 24, 1975, Local 737 picketed
Jets at gate 2 of KSC with the signs identical to those
described above except for the deletion of the word
"against."
On November 4, 1975, counsel for Local 737 sent
counsel for Jets a letter advising him that Local 737
was willing to discuss terms for settlement of the
dispute.
On December 10, 1975, counsel for Jets sent a
letter in response to the above-noted letter. Therein
counsel for Jets stated that, in response to his client's
question concerning its obligation to negotiate with
Local 737 if it agreed to hire the remaining former
ARA employees, counsel had informed Jets that he
felt constrained to advise it that such an obligation
was contemplated as part of any settlement in this
matter. In any event he said the NLRB would hold
that Jets would have such an obligation after it had
hired a substantial number of the former ARA
employees.
On December 22, 1975, Jets filed the charge in the
instant case alleging that the picketing which
commenced on October 24, 1975, violated Section
8(b)(7)(C) of the Act (Case 12-CP- 193).
Throughout the second period of picketing, from
October 24, 1975, through January 12, 1976, Respon-
dent distributed handbills that were similar in
content to the one previously described.
1051
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 10, 1976, counsel for Local 737
informed counsel for the General Counsel that the
picketing would cease and that Local 737 would
litigate the merits of Case 12-CP-193 befo e the
Board. On January 12, Local 737 ceased its picketing
of Jets.
At no time during the picketing commencing on
October 24, 1975, and ending January 12, 1976, did
the picketing result in the interruption of any
deliveries.
B. Discussion
Section 8(b)(7)(C) of the Act makes it unlawful for
a labor organization, inter alia, to picket an employer
with an object of requiring the employer to recognize
or bargain with the labor organization, where the
picketing has been conducted without a petition
under Section 9(c) being filed within a reasonable
period of time not exceeding 30 days. While
Respondent stipulated that it picketed Jets for more
than 30 days after the commencement of picketing
on October 24, 1975, without filing a petition as
provided by Section 9(c) of the Act, it denies that the
picketing had a recognitional or bargaining objective
and therefore that the picketing was unlawful. It
argues that its conduct prior to the commencement
of the October 24 picketing is not determinative of
proscribed object and that picketing to secure the
reinstatement of the discharged ARA employees is
not by itself picketing for a recognitional object in
violation of Section 8(b)(7)(C).3 On the other hand,
the General Counsel contends that Respondent's
recognitional object in picketing is established by the
fact that it sought the mass reinstatement of 26
employees it represents in a unit of 34 employees, 8
of whom are former employees of ARA represented
by Respondent, and by the events which preceded
the settlement agreement entered into in October
1975.
The object of picketing in an 8(b)(7)(C) situation is
primarily a fact determination. Therefore all ele-
ments of proof relevant to the issue are important.4
This includes events which preceded the October
1975 settlement agreement. Such events are relevant
in assessing Respondent's postsettlement conduct.5
On July 30, Jets' vice president, Gibbs, received a
request from International vice president and admin-
istrator of Respondent, Paul McCastland, regarding
the early commencement of contract negotiations
between Jets and Respondent. On the same day
Gibbs received a phone call from an admitted
:1 Respondent does not contend that the picketing is within the protection
of the second proviso to Sec. 8(bX7XC).
4 Shell Chemical Company, a Division of Shell Oil Company v. N.L.R.B.,
495 F.2d 116 (C.A. 5, 1974).
" Cf. Northern California District Council of Hod Carriers and Common
business agent of the Respondent inquiring whether
Jets intended to sign the same contract Respondent
had negotiated with ARA. After it had become
evident that Jets was not planning to adopt the
collective-bargaining agreement its predecessor had
negotiated with Respondent, a meeting was sched-
uled for August 15, 1975, to allow both parties an
opportunity to define their positions and possibly
resolve their differences. At this meeting, counsel for
Respondent stated that Respondent was not interest-
ed in a contract but was only concerned with the
retention of all former ARA employees. He also
stated that, if Jets did indeed believe that members of
the ARA work force who were not hired were
incompetent, the least Jets could do was to keep all
ARA employees working, keep the contract in force,
discharge those claimed to be incompetent, and use
the grievance-arbitration procedure to determine if
they really were incompetent. Unable to reach an
accord, Respondent commenced the picketing of Jets
on August 16, 1975, and on August 18 filed a charge
with the Board charging Jets with violations of
Section 8(a)(l), (3), and (5) of the Act, the latter
involving an alleged refusal to bargain since on or
about August 16, 1975. The charges were subse-
quently withdrawn before the presentation of evi-
dence. On September 18, the Respondent again filed
a charge, this time alleging that Jets had violated
Section 8(a)(1) and (3) of the Act. In a letter
accompanying the filing of the charge, Respondent's
counsel emphasized the fact that nothing contained
in the charge should be construed as an allegation of
an 8(a)(5) violation. Rather, the charge was framed
so as to put the Board on notice that, if the facts
warranted, the Union was desirous of a Steel-Fab
bargaining order.6
The above-described conduct which preceded the
October 1975 settlement clearly indicates that at least
one object of the picketing between August 16 and
October 2, 1975, had a recognitional or bargaining
objective. We so find.
The General Counsel further contends that the
picketing which commenced October 24, 1975, for
the admitted purpose of seeking the mass reinstate-
ment of former ARA employees further evidences
the recognitional object of that picketing. While he
disclaims any contention that picketing for the
Laborers of America, AFL-CIO, et al. (Joseph Mohamed, Sr., an Individual,
d/b/a Joseph's Landscaping Service), 154 NLRB 1384, fn. 1 (1965), enfd. 389
F.2d 721 (C.A. 9, 1968). Respondent requests that the Board overrule this
decision. We decline to do so.
6 Steel-Fab, Inc., 212 NLRB 363 (1974).
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HOTEL, MOTEL, RESTAURANT EMPLOYEES
reinstatement of a discharged employee is per se
picketing for a recognitional objective,' he does
contend that since Respondent's picketing was for
the mass reinstatement of former ARA employees
the effect of the picketing if successful would be the
reestablishment of Respondent's earlier majority
status and would require Jets to recognize and
bargain with Respondent. Accordingly, he asserts the
picketing had a recognitional objective. We find
merit in this contention.
In Gazette Printing Company, 175 NLRB 1103
(1969), a recently certified union struck in support of
its contract demands. The strike continued beyond
the certification year. The employer filed an RM
petition. In response the union filed a disclaimer of
interest and ceased picketing. The employer there-
upon requested leave to withdraw its petition. Three
days later the union resumed picketing with signs
stating that the employer was unfair. The union
claimed that the renewed picketing was no longer in
support of its bargaining demands but to compel
reinstatement of the striking employees. The Region-
al Director dismissed the RM petition upon the basis
of the union's disclaimer. In finding the disclaimer
ineffective and in directing an election, the Board
said (175 NLRB at 1104):
We view it as highly significant in this case that
the Union was not picketing for reinstatement of
one or a small number of employees, but for a
mass reinstatement of all strikers. Since the
strikers were union adherents, the immediate
consequences of mass reinstatement would have
been the reestablishment of the Union's earlier
majority status. Under these circumstances, we do
not believe that the Union, in pressing for a mass
reinstatement, can realistically be said to have
I Local 259. International Union, United Automobile. Aircraft and
Agricultural Implement Workers of America, UA W. AFL CIO (Fanelli Ford
Sales. Incr. , 133 NLRB 1468 (1961).
. Cf. International Longshoremen's and Warehousemen's Union Local No.
( Watera)y Terminals Company), 193 NLRB 477, 486 (1971).
It should be noted Respondent's refusal to employ former ARA
employees was not unlawful. This is not a case therefore of a union
picketing to secure the reinstatement of discriminatorily discharged
employees.
4 Contrary to our dissenting colleague we find that "the fact that
reinstatement might have additional consequences and eventually result in
recognition of Respondent" is a factor that is crucial to the proper
disposition of this proceeding and strikes at the very essence ofan 8(bX7XC)
violation. In Fanelli Ford Sales, Inc., 133 NLRB 1468, the Board stated:
It maN not be gainsaid, of course, that picketing for an employee's
reinstatement may in some circumstances be used as a pretext for
attaining [representation I of all the employees in a certain unit.
Although the Board dismissed the 8(bX7(XC) complaint in that decision, it
did so only because the record failed to provide additional evidence that the
respondent's picketing was for an unlawful object. The Board. then, as now.
recognizes that picketing for the reinstatement of employees is not per se
unlawful,
However. that is not the case here. Our dissenting colleague would have
had only a future, but not a present, object of
recognition.
In finding that the Union took actions inconsis-
tent with its disclaimer, we do not rely only on the
Union's continued picketing for mass reinstate-
ment which, if achieved, would immediately have
given the Union majority status. We also think it
significant that from June 1967, until October 24,
1968, the Union had continuously picketed in
support of bargaining demands. The Board has
stated that if there is recognitional picketing
immediately prior to the alleged shift in purpose,
it will view the alleged shift in purpose with "some
skepticism." This is particularly true where, as
here, the Union resumes picketing after a very
brief hiatus.
For all these reasons, we find that the post-
October 28 picketing had an immediate recogni-
tional objective, notwithstanding the Union's
disclaimer.
In view of all the circumstances, including Respon-
dent's presettlement conduct and the stated object of
the picketing, we find that the picketing which
commenced on October 24, 1975, had an immediate
recognitional object.8 As it continued for more than
30 days without the filing of a representation
petition, we further find that Respondent thereby
violated Section 8(b)(7XC) of the Act. 9
CONCLUSIONS OF LAW
I. Jets Services, Inc., is, and at all times material
has been, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Hotel, Motel, Restaurant Employees and
Bartenders Union, Local 737, AFL-CIO, is a labor
us view Respondent's conduct in a vacuum and totally disregard the first
period of picketing which clearly possessed a recognitional object evidenced
by no less than: (I) Respondent's request to continue in effect the ARA
collective-bargaining agreement; (2) the filing of a charge which included,
inter alia. allegations of violations of Sec. 8(aX5) of the Act; and (3)
Respondent's request for a Steel-Fab bargaining order. To ignore the events
occurring only weeks before the commencement of the second picketing
would be to ignore the realities of the situation. Respondent, by its conduct
during August and September. manifested a patent and continuing desire to
reestablish its status as the unit's bargaining representative. Respondent
sought to achieve this end through the coerced rehiring of all former ARA
employees. In light of its previous conduct, the resumption of picketing on
October 24 calls into question the true motive behind Respondent's decision
to return to the picket line. Respondent's rapid abandonment of its proposal
to implement a preferential hinng list in lieu of mass reinstatement
convinces us that Respondent indeed contemplated a return to the status
quo.
The judicial determination of an 8(bX7XC) violation requires a thorough
examination of the totality of the circumstances surrounding the alleged
violation. Building Service Employees Union. Local No. 87, AFL-CIO
(Liberit House/Rhodes), 223 NLRB 30(1976). Therefore. after consideration
of all the events discussed in this proceeding, we find that Respondent's
picketing subsequent to October 24 possessed an unlawful object in
violation of the Act.
1053
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization within the meaning of Section 2(5) of
the Act.
3. By picketing at Jets Services, Inc.'s food service
facilities at the Kennedy Space Center, Merritt
Island, Florida, from October 24, 1975, to January
12, 1976. without having filed a petition under
Section 9(c) of the Act, with an object of forcing or
requiring Jets to recognize and bargain with the
Respondent as the collective-bargaining representa-
tive of the employees of Jets, the Respondent has
engaged in unfair labor practices within the meaning
of Section 8(b)(7)(C) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall recommend
that it cease and desist therefrom and take certain
affirmative actions designed to effectuate the policies
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Hotel, Motel, Restaurant Employees and Bartenders
Union, Local 737, AFL CIO, Orlando, Florida, its
officers, agents, and representatives, shall:
I. Cease and desist from picketing, or causing to
be picketed, or threatening to picket the Jets Services,
Inc., Kennedy Space Center food service facilities in
Merritt Island, Florida, with an object of forcing or
requiring Jets to recognize Respondent as the
collective-bargaining representative of Jets' employ-
ees, at a time when Respondent is not certified as
such representative and where such picketing has
been conducted without a petition under Section 9(c)
being filed within a reasonable period of time not to
exceed 30 days from the commencement of such
picketing.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at each of its offices and other facilities
copies of the attached notice marked "Appendix."1 0
Copies of said notice, on forms provided by the
Regional Director for Region 12, after being duly
signed by an authorized representative of the
Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained
"' In the event that this 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Mail forthwith to the aforesaid Regional
Director for Region 12, signed copies of said notice
for posting by Jets Services, Inc., if it is willing, in
places where notices to its employees are customarily
posted.
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBER JENKINS, dissenting:
I disagree with my colleagues' findings of a
violation of Section 8(b)(7)(C) and would dismiss the
complaint. I am persuaded that the facts, which are
stipulated, demonstrate (I) that Respondent's picket-
ing did not have a recognitional objective, and (2), in
any event, that the picketing was within the scope of
the proviso to Section 8(b)(7)(C) because its purpose
was to advise consumers that the Employer had
discharged and refused to reemploy its members."
Construction Laborers International Union of North
America, AFL-CIO, Laborers Local 1140 (Lanco
Corporation), 227 NLRB 1247 (1977).
My colleagues find that the picketing which
commenced on October 24, 1975, had a recognitional
object (1) because one object of Respondent's earlier
picketing between August 16 and October 2, 1975,
was recognitional, and (2) because the picketing was
for the mass reinstatement of former ARA employ-
ees who would have constituted a majority if hired
by Jets. Neither of these grounds for decision is
tenable. The circumstances surrounding Jets' dis-
charge of 26 of 34 of ARA's former employees and
Respondent's picketing in protest thereof preclude
the object of the earlier picketing from being imputed
to the later, particularly in light of the terms of the
settlement of the charge arising out of the earlier
picketing. As to Respondent's effort to have all the
discharged employees rehired, seeking mass rein-
statement alone does not establish a recognitional
objective. Affirmative evidence of a purpose beyond
mere reinstatement is required to prove a violation of
Section 8(b)(7)(C). Not only is such evidence lacking
in the present case, but the stipulated facts disprove
an unlawful purpose.
" It is stipulated that the picketing did not result in the interruption of
any deliveries.
1054
HOTEL, MOTEL, RESTAURANT EMPLOYEES
Even if Respondent's August-September picketing
had a bargaining objective, the circumstances sur-
rounding that picketing prevent the conclusion that
the later picketing commencing October 24 also had
a prohibited recognitional objective. Prior to Jets'
taking over the cafeteria operations on August 16,
1975, Respondent had been the collective-bargaining
representative of the cafeteria employees at the space
center. When Jets became the low bidder in early
1975, Respondent was notified by NASA officials
that Jets had indicated to NASA that it would
probably employ 90 percent of the existing cafeteria
force. With Jets' indication that it would hire 90
percent of the current work force, it was entirely
appropriate for Respondent to contact Jets, which
clearly would have been a successor employer,
regarding acceptance of the existing ARA collective-
bargaining agreement or negotiation of a new
agreement.
Until the August 15 meeting, Respondent had no
reason to believe that Jets would not be hiring
virtually all of the then employed cafeteria workers.12
Less than 24 hours before Jets was to take over
operations, Respondent first learned that only eight
former employees were to be employed, with almost
75 percent of the existing complement being in effect
discharged. Although Jets was under no legal
obligation to notify or discuss with Respondent its
hiring plans, the fact that it misled Respondent and
the ARA employees by its representation to NASA
officials and never advised anyone otherwise until
the day before it commenced operations justified the
suspicion on the part of Respondent and the
discharged employees that Jets was intent upon
destroying the union majority. In these circumstanc-
es, picketing and filing unfair labor practice charges
to preserve its representation status and protect the
discharged employees in accordance with what it in
good faith believed to be its legal rights cannot
properly be considered evidence of an unlawful
objective in its subsequent picketing.
Respondent ceased picketing and withdrew its
unfair labor practice charges against Jets when it was
satisfied that it could not sustain its claims of
violations of its bargaining rights and its members'
employment rights. It entered into the October 2,
1975, settlement agreement when it was advised by
the Regional Office that reasonable cause existed to
believe that the picketing was for an object proscrib-
ed by Section 8(b)(7)(C). The settlement agreement
made clear that Respondent intended to picket to
protest Jets' discharge of the ARA employees, after a
12 I am at a loss to understand my colleagues' assertion in fn. 2 of their
Decision that this statement is incorrect. The parties stipulated that
"[T ]hose ARA employees who were not selected for employment were given
noi notification of any sort by Jets.... At no time prior to the August 15,
suitable hiatus, by its provision that Respondent
would cease picketing for a period of 21 days after
October 2.
After expiration of the prescribed 21 days, Respon-
dent commenced picketing to protest the discharges
and made clear its limited purpose, disclaiming any
recognitional object. On October 22, Respondent
sent NASA officials a mailgram advising that
picketing would commence on October 24, and that
the picketing:
. . . will be for sole object of protesting dis-
charge of former ARA employees represented by
Local 737. Picketing will cease when those
employees are rehired by Jets. Local 737 dis-
claims any other object in conducting picketing.
On October 24, Respondent also sent Jets a similar
mailgram again disclaiming any object other than the
purpose of protesting Jets' failure to hire the former
ARA employees.
Against this background, the inference of an
unlawful object in the later picketing because of the
asserted dual purposes of the earlier picketing is
clearly unwarranted. Both the courts and the Board
have rejected the presumption of a continued
unlawful object in the absence of evidence to support
the presumption. It was rejected by the U.S. Court of
Appeals for the Second Circuit in N. LR.B. v. Local
50, Bakery and Confectionery Workers International
Union, AFL-CIO [Arnold Bakers, Inc.], 245 F.2d
542, 547 (1957), and by the Board in Local 344, Retail
Clerks International Association AFL-CIO (Alton
Myers Brothers, Inc.), 136 NLRB 1270, 1273 (1962);
Building and Construction Trades Council of Philadel-
phia and Vicinity, AFL-CIO (Altemose Construction
Co.), 222 NLRB 1276, fn. 2 (1976). See also San
Francisco Local Joint Executive Board of Culinary
Workers, etc., A FL-CIO (A BP Enterprises, Inc. d/b/a
Perry's), 207 NLRB 199, 204 (1973). Thus, although a
union's object is initially unlawful when it subse-
quently renounces the unlawful object in favor of a
lawful one, there is no presumption that the original
object continues. Unlike Gazette Printing Conpanv,
supra, relied on by my colleagues, where the union
had engaged in recognitional picketing and resumed
picketing for an allegedly different purpose after a
hiatus of only 3 days, the circumstances of the
present case present a rational explanation for the
different purposes of the earlier and later picketing.
See Waiters & Bartenders Local 500, et al. (Mission
Valley Inn), 140 NLRB (1963).
1975 meeting did Jets directly inform Local 737 of the number and identity
of the employees it would employ. or that it would not he employing 90
percent of the ARA employees."
1055
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I believe my colleagues are also in error in finding
merit in the contention that "picketing... for the
mass reinstatement of former ARA employees" had
a recognitional objective because "the effect of the
picketing if successful would be the reestablishment
of Respondent's earlier majority status and would
require Jets to recognize and bargain with Respon-
dent." The purpose of the picketing, as clearly
announced by Respondent, was to achieve reinstate-
ment of the discharged employees. Respondent's
picketing would have ceased if ARA, without
recognizing or, indeed, exchanging a word with
Respondent, had reinstated the discharged employ-
ees. The picketing was obviously directed solely at
obtaining reinstatement. Fanelli Ford Sales, Inc., 133
NLRB 1468 (1961). The fact that reinstatement
might have additional consequences and eventually
result in recognition of Respondent does not alter the
purpose of the picketing.
Section 8(b)(7)(C) does not prohibit picketing to
protest the discharge of employees. Such picketing is
entirely lawful and picketing for this lawful purpose
cannot per se be rendered unlawful because, if
successful, Respondent's prior majority might be
reinstated. In Gazette, supra, the Board made clear
that in finding a recognitional objective it did "not
rely only on the Union's continued picketing for
mass reinstatement which, if achieved, would imme-
diately have given the Union majority status." The
Board relied on other evidence, which is lacking here,
of the continuation of its original recognitional
picketing.
The evidence in the present case, in fact, affirma-
tively demonstrates that the picketing which began
on October 24 did not have an immediate recogni-
tional objective. Respondent had made known to
Jets its willingness to settle the dispute by the
establishment of a preferential hiring arrangement.
Such an arrangement obviously would not reestab-
lish the prior majority and completely undermines
my colleagues' reliance on reestablishment of majori-
ty status as the basis for finding a recognitional
objective. On October 14, more than a week prior to
the resumed picketing, Respondent's counsel indicat-
ed to Jets' counsel a willingness to resolve their
differences through the use of a preferential hiring
list.
My colleagues refuse to attach any significance to
this October 14 proposal because Respondent's
October 24 mailgram to Jets, which stated that the
sole object of the picketing was to protest the
discharge of the ARA employees, further stated that
the "picketing will cease when those employees are
hired by Jets." This mailgram in no way evidences a
withdrawal of Respondent's previously expressed
willingness to settle for a preferential hiring list.
Obviously, Respondent would not be expected to
recede from its initial position in the absence of
movement toward a settlement. In addition, my
colleagues overlook the letter of Respondent's
counsel to Jets' counsel of November 4 which again
clearly indicated that preferential hiring would be a
solution. 3 Reliance on a request for reinstatement in
these circumstances, as evidence of a recognitional
objective, is unwarranted.
Although Respondent does not make the claim, it
is clear that its picketing was protected by the
proviso to Section 8(b)(7)(C) which excludes from its
scope "any picketing or other publicity for the
purpose of truthfully advising the public (including
consumers) that an employer does not employ
members of. . . a labor organization." It has been
stipulated that no deliveries to Jets were interrupted.
It is apparent that the purpose of the picketing was to
apply economic pressure by discouraging consumers
(the other employees at the space center) from
patronizing Jets' food service facilities. At the
meeting of August 15, which was held when it was
first discovered that most of the ARA employees
were not being rehired, representatives of other
unions at the space center were present, voiced their
opposition to the way in which Jets was treating the
former ARA employees, and stated they would
boycott Jets' food service operation. Throughout the
period of picketing commencing on August 18 and
ending on October 2, Respondent distributed to
members of the public, in conjunction with its
picketing, handbills which urged them not to
patronize the cafeterias. Similar handbilling accom-
panied the October 24 picketing. Respondent's
obvious purpose to appeal to the consumers at the
space center because its members had been dis-
charged by Jets is within the clear compass of the
proviso and insulates Respondent from the finding of
a violation even if its picketing be deemed recogni-
tional.
The complaint should be dismissed.
'1 This letter demonstrates my colleagues' obvious error in relying on the
Union's "rapid abandonment of its proposal to implement a preferential
hiring list in lieu of mass reinstatement." There is nothing to indicate that
the position made clear in its letter of November 4 was thereafter modified
or abandoned.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket, or cause to be picketed, or
threaten to picket the Jets Services, Inc., food
service facilities at the Kennedy Space Center,
1056
HOTEL, MOTEL, RESTAURANT EMPLOYEES
Merritt Island, Florida, where an object thereof is
to force or require Jets Services, Inc., to recognize
and bargain with us as the representative of
employees employed by Jets Services, Inc., at a
time when we are not certified as such representa-
tive and where such picketing has been conducted
without a petition under Section 9(c) being filed
within a reasonable period of time not to exceed
30 days from the commencement of such picket-
ing.
HOTEL, MOTEL,
RESTAURANT EMPLOYEES
AND BARTENDERS UNION,
LOCAL 737, AFL-CIO
1057