Local 19 Hotel, Motel, Restarunt Employees and Bartenders Union

National Labor Relations Board - Board Decisions

Jan 25, 1979

240 N.L.R.B. 240 (N.L.R.B. 1979)

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 19 Hotel, Motel, Restaurant Employees and
Bartenders Union, AFL-CIO and Local 19 Mem-
bers for a Democratic Union and Office and Profes-
sional Employees Union Local 29. Cases 32-CA--
450 and 32-CA 502
January 25. 1979
DECISION AND ORDER
By CHAIRMAN FANNINCG AND MEMBERS JNKINS
ANI) P:N E.LO
On September 15, 1978, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter. Respondent filed ex-
ceptions and a supporting brief, the General Counsel
filed an answering brief, and Local 19 Members for a
Democratic Union, the Charging Party, filed a reply
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Local 19 Hotel, Motel,
Restaurant Employees and Bartenders Union, AFL
CIO, San Jose, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
IRespondent has excepted to certain credibilit. findings made bh the
Administragive law Judge. It is the Board's established polic not to o,er-
rule an Administrative Law Judge's resolutions with respect to credibhlit,
unless the clear preponderance of all ,of the relevant evidence convince us
that the resolutions are incorrect. Siandard I)ri Wall Prodmris., /( . 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d (Cir. 1951). We have carefulls
examined the record and find no basis for reversing his findings.
Respondent also contends that the Administrative Law Judge improperlN
treated the evidence adduced by "supplling] missing evidence" to support
his findings and conclusions and therebs exhibited bias and prejudice
against Respondent. We find this allegation otally without merit LUpon full
and careful consideration of the record, we perceive nothing to, indicate that
the Administrative Law Judge prejudged the case, made prejudicial rulings.
improperly treated the evidence adduced. or demonstrated bias against Re-
spondent in his analysis and discussion of the evidence. or oiheri se
240 NLRB No. 45
APPENDIX
NOTICE To EMPLo()\:LES
PosT BY ORI)ER OF IHE
NAIIONAL LABOR RELAIIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities,
except to the extent that the employees' bar-
gaining representative and employer have a
collective-bargaining agreement which impos-
es a lawful requirement that employees be-
come union members.
In recognition of these rights, we hereby notify
our employees that:
WE WILL No' take pictures of employees en-
gaged in picketing or in other protected concert-
ed activities.
WE WILL Not discharge or otherwise discrimi-
nate against employees with regard to their hire
or tenure of employment or any term or condi-
tion of employment for engaging in activities on
behalf of a labor organization or for engaging in
activity protected by Section 7 of the Act.
WeI WIL.L NO[ refuse to reinstate unfair labor
practice strikers upon their unconditional appli-
cations to return to work and we WILL. NOT refuse
to reinstate any strikers who have not been per-
manently replaced by the time of their uncondi-
tional applications to return to work.
Wt Wll.l. NOI refuse to recognize and bargain
collectively with Office and Professional Em-
ployees Union Local 29. as the exclusive bar-
gaining representative of the employees in the
following appropriate bargaining unit:
All office clerical employees employed at our
1121 E. Santa Clara, San Jose, California, fa-
cility; excluding all other employees, guards,
and supervisors within the meaning of the
Act.
Wit wIL. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights under Section 7 of the Act.
WE WILL. offer Robert Shilling, Esther Adcock,
JoAnne Arvieson, and Lillian Albanoski imme-
diate and full reinstatement to their former posi-
BARTENDERS LOCAL 19 241
tions of employment, dismissing, if necessar,
anyone who may have been hired or assigned to
perform the work that Shilling and Adcock had
been performing prior to October 7, 1977, and
that Arvieson and Albanoski had been perform-
ing prior to October 12, 1977, or, if their former
positions no longer exist, to substantially equiva-
lent positions, without prejudice to their senior-
ity or other rights and privileges previously en-
joyed, and make them and Carol Chace, for the
period October 7, 1977, to February 27, 1978,
whole for any loss of pay they may have suf-
fered as a result of our discrimination.
WE WILL destroy any pictures of picketing em-
ployees taken between October 12 and 26, 1977.
WE WILL, upon request, recognize and bargain,
effective as of October 21. 1977, with Office and
Professional Employees Union Local 29, as the
collective-bargaining representative of the em-
ployees in the appropriate unit described above
respecting rates of pay, wages, hours of employ-
ment, or other terms and conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
LOCAL 19 HOTEL.. MOTEL. RESTAURANT
EMPLOYEES AND BARTENDERS UNION. AFL
CIO
DECISION
STATEMENT OF THE CASE
WILLIAM J PANNIER III, Administrative Law Judge: This
matter was heard by me in Oakland, California, on April
24 through 28, 1978. On December 30, 1977,' the Regional
Director for Region 32 of the National Labor Relations
Board, herein called the Board, issued an order consolidat-
ing cases, consolidated complaint, and notice of hearing,2
alleging violations of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended, 29 U.S.C., §
151, et seq., herein called the Act.
IUnless otherwise stated, all dates occurred in 1977.
2 This was based upon a charge filed in C(ase 32-CA-450 bs Office and
Professional Employee. Union Local 29. herein called Local 29. on October
10. which was amended on December 27. and a charge filed in ase 32
CA-502 by Local 19 Members for a Democratic Union on October 27.
which was amended on December 5. Although afidasits of service "bh
postpaid registered mail" were produced with respect to both original
charges. no return receipt was offered to show receipt b Local 19 Hotel.
Motel, Restaurant Employees and Bartenders Union. AF. (10. herein
called Respondent, of the original charge in C(ase 32- CA 502. Nevertheless.
a return receipt was produced for the first amended charge In that case, and
Respondent concedes the authenticity of the signature thereon. Since the
unfair labor practices alleged in the complaint occurred within the 6-month
period prior to the filing of the first amended charge in (ase 32 ('A 502.
the absence of a return receipt for the originall charge in hat case raises no
material issue.
All parties have been afforded full opportunity to ap-
pear. to introduce evidence, to examine and cross-examine
witnesses, and to file briefs. Based upon the entire record.3
upon the briefs filed on behalf of the parties. and upon my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
I JRISDI(TION
At all times material, Respondent has been a labor orga-
nization affiliated with Hotel and Restaurant Employees
and Bartenders International Union. AFL-CIO, herein
called International, with its principal place of business at
San Jose. California, where it is engaged in organizing un-
represented employees and in representing its members
and other employees in collective bargaining with various
employers concerning wages, hours, and other terms and
conditions of employment. During the past calendar year.
in the course and conduct of its business operations, Re-
spondent received gross income in excess of $500,000 and
paid in excess of $50,000 in dues received from its members
to International, which is located in Cincinnati, Ohio.
Therefore, I find, as admitted in the answer, that at all
times material, Respondent has been an employer engaged
in commerce and in a business affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
At all times material, Local 29 has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues and Contentions
In 1977, Respondent's associationwide collective-bar-
gaining agreement expired on May 31. There were approxi-
mately 20 to 22 employers in the association, employing a
total of between 2,200 ans 2,400 employees represented by
Respondent. The "me-too" agreements with individual es-
tablishments were also scheduled to expire on May 31.
Traditionally, membership declines during contract years,
as the expiration of agreements makes possible the filing of
decertification petitions and as organizing activities are
abated to concentrate on negotiating new agreements. The
year 1977 proved no exception for Respondent in this re-
gard. For, by the end of April, Respondent's membership
had declined from 5,098 on December 31, 1976, to 5,056.
But by May 30, an additional 100 members had been lost.
leaving Respondent's membership at 4,956 in number. By
June 30, membership had declined to a total of 4,789. The
end of each succeeding month showed further reductions:
to 4,665 by the end of July, to 4,408 by the end of August,
to 4,277 by the end of September, to 4.198 by the end of
October, to 4,147 by the end of November, and to 4.121 by
the end of December.
Respondentl' unopposed motion to correct transcrlpl is herebh granted
and the transcrlpt is hereby corrected
BARTENDERS LOCAL 9 .. - . .
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In an effort to reduce expenses. at Respondent's execu-
tive board meeting on August 3, Financial Secretary-Trea-
surer Ron Davis recommended that the organizing com-
mittee consisting of Director of Organizing Robert
Shilling and organizer Esther Adcock, who had been work-
ing in the office at the time, but who had previously been
an organizer and who had continued helping Shilling on a
part-time basis as needed be eliminated, that the clerical
staff be further reduced by eliminating the least senior cler-
ical employee, Carol Chace, and that two of Respondent's
five districts one serviced by Staff Representative Don
Gerber and the other serviced by Staff Representatives Joe
Santamaria and Lillian Albanoski-be consolidated, with
Albanoski being transferred to the office to perform the
work which Adcock and Chase were then performing.
The executive board approved these recommendations.
However, when the issue of these recommendations was
raised at the general membership meetings during the fol-
lowing week, the membership voted to reject them, not-
withstanding the explanation of Respondent's president,
Frank Marolda, that Respondent had been encountering
economic difficulties and could not continue to employ the
existing number of employees. As a result, Respondent's
employment complement continued to consist of Marolda
as president, Davis as both financial secretary-treasurer
and staff representative for one district, Staff Representa-
tives Gerber, Santamaria, Albanoski, Vince Curci, and
Jack Waller, Office Manager Betty Krueger, Director of
Organizing Shilling, and office employees Adcock, Chace,
and JoAnne Arvieson.
On September 1, Adcock contacted Allison Main, Local
29 representative, concerning the possibility of organizing
the four office employees (Krueger, Chace, Arvieson, and
herself). During a luncheon meeting on September 16,
Main gave Adcock authorization cards and all four of the
women signed cards, according to the dates on the cards,
that same day at Respondent's San Jose office. The signed
cards were mailed to Main, who then filed the representa-
tion petition in Case 32-RC-134, seeking an election in a
unit of all clerical and office employees employed by Re-
spondent. The parties stipulated that Respondent received
a copy of the petition from the Board on October 3.
Two nights later, at the monthly executive board meet-
ing, it was decided that Respondent's economic condition
warranted renewal of the approval given previously by the
board to Davis' August recommendations. This decision
was then implemented on October 7 when Shilling, Ad-
cock, and Chace were each given a letter stating:
With deep and sincere regrets, I have to notify you
that effective October 7, 1977, your employment with
Local 19 is terminated.
The unfortunate problem that we have is simply one
of financial difficulty arising from the recent marked
loss of membership in the Local.
Hopefully, when our current contract signing and
negotiations are concluded, we will be able to effect a
reversal in the membership figure, so as to be able to
once again ask you to join our staff. But the immedi-
ate situation is such that the organization simply can-
not take a chance at the immediate moment because
of the extreme potential of financial consequences.
Your dedicated service to the Local and to the peo-
ple we represent has been most appreciated by all.
The General Counsel contends that by doing so, Respon-
dent violated Section 8(a)(3) and (I) of the Act. Respon-
dent, conversely, contends that its decision with regard to
these three employees had in no way been influenced by
Local 29's campaign, but that it had been based exclusively
upon its need to effect a saving in its expenses in light of its
diminished income due to declining membership.
Upon learning of these events, Main sought and ob-
tained authorization of the Santa Clara County Central
Labor Council, herein called Council, to commence strike
activity against Respondent. Though notified that the
Council intended to conduct a hearing on granting strike
sanction to Local 29, Marolda had a conflicting commit-
ment and when his effort to obtain a postponement of the
hearing was unsuccessful, he did not designate an alternate
to act in his stead, but chose to ignore the hearing and to
leave Respondent unrepresented. Thus, on October 12,
picketing commenced at Respondent's facility. It contin-
ued until the close of business on October 21, by which
time the Council, by virtue, in part, of intervention by In-
ternational, had reversed its decision to sanction the strike.
During the picketing, the picket line had been respected
by Office Manager Krueger, by Arvieson, and by Albano-
ski, who, on October 6, had been directed by Marolda to
report to the office regularly to work on a special project
with Davis. Based upon the contention that the picketing
had been occasioned, at least in part, by the unlawful ter-
minations of Shilling, Adcock, and Chace, the General
Counsel contends that the strike had been an unfair labor
practice strike and that as sympathy strikers, Arvieson and
Albanoski must be considered to have been unfair labor
pratice strikers.4 Moreover, as detailed further below, on
one of the days of the strike, Davis had taken photographs
of some of the pickets. The General Counsel contends that
this conduct violated Section 8(a)( ) of the Act.
On October 20, Main dispatched a mailgram to Respon-
dent which stated: "Please advise if possibility of signed
trade union agreement. We would be prepared to pull pick-
ets and leave question of termination with NLRB. I may be
reached (415) 653-9614." Respondent, which received the
mailgram the following day, contends that Local 29 there-
by withdrew any unfair labor practice object which the
strike might previously have involved.
On Monday, October 24, Albanoski and Arvieson, in the
company of a number of others, returned to Respondent's
office. Respondent, however, declined to permit them to
resume working, contending, in this proceeding, that they
had been replaced and that, in any event, their conduct of
4 Krueger is not alleged as a diciminnatee hecause It was determined
during the (eneral (Counsel's nvestigatlon that, its oflfice manager she had
been a supervisor ithin the meaning of Sec (11 of the Act and. accird-
inglN, had not been entitled to) the protection of the Act in the circumstances
presented h the instant cases See tHlarvei8 ifanon Wheel, I,,. dh a
Ilarwi Rort Hotel & Hari(c'v Inn, 236 NlRB 167(, 1671 (1978: J 1)
l.unol-rrd Plmin gi , tleating nd 4ir ( ndit(ioint. lu , and l un1Iford Br,,h-
cr,
t
Ac hntal, ,, 237 NRB 128 130 978)
BARTENDERS LOCAL 19 243
that day and the subsequent 2 days was sufficiently perni-
cious to warrant barring them from reemployment. The
General Counsel, conversely, argues that by failing to rein-
state Albanoski and Arvieson on October 24, Respondent
further violated Section 8(aX 3) and (I) of the Act and. fur-
ther, that the events of October 24-26. detailed below, were
not sufficient to bar them from reinstatement for miscon-
duct.
Also on October 24, Marolda responded to Main's mail-
gram by dispatching one of his own to her. In it. he stated
that Respondent had been prepared at all times to recog-
nize and bargain with any properly selected representative
of its staff in an appropriate unit and he invited Main to
advise Respondent if she was "interested in the alterna-
tives" to an election as a means of establishing Local 29's
representative status. Main did not respond to Marolda's
Mailgram nor did Local 29 contact Respondent for any
purpose following October 24. Nevertheless, the General
Counsel alleges that since October 7. Respondent has
failed and refused to recognize and bargain with Local 29.
thereby violating Section 8(a)(5) and ( I ) of the Act.
Since the issues arise in chronological sequence, for the
most part, they are easily analyzed in the order in which
the events took place.
B. The LarIoffs Terminations of Octoher 7
Respondent's position with respect to the events of Octo-
ber 7, relating to Shilling, Adcock, and Chace. was crystal-
lized early in the hearing by Marolda when testifying as in
adverse witness called by the General Counsel: "Again.
these people were not terminated. These people were laid
off. The reason they were laid off was for economics. No
other reason other than economics." Indeed. there are a
number of factors present in this case which tend to sup-
port Respondent's economic defense. First. 1977 had been
a contract renegotiation year and it is undisputed that
membership traditionally declines during such renegotia-
tion years. Second, as set forth above, Respondent's mem-
bership did decline precipitously after May 31, when its
collective-bargaining agreements had expired. Third, the
financial records produced by Respondent do disclose a
concomitant decline in receipts during the course of 1977.
Thus, Respondent's total receipts for January were
$60,436; for Februar? were $50,258; for March were
$62,190; for April were $53,533: for May were $47.001: for
June were $56,845: for July were $49.421: for August were
$43,685; and, for September were $46,273.5 Fourth. Shill-
ing confirmed that there had been "belt-tightening" prior
to October. Fifth. the work of the clericals had been re-
duced in the months of August and September, as shown
by former Office Manager Krueger's testimony that, while
historically there had been considerable overtime worked
by those employees. only minimal overtime had been re-
quired of them during the months of August and Septem-
ber.
No records on a nmnihkx hani Acre pr...uced for the iont, Aftcis
Septemhber. I he record does shio, hi for the lti n i.ih, of 19'7. .a1,1 f1
the firil 3 da's of ..ltlnu.,r 197. Repdlr nl'I 1 to lI r.eceip tl 1. id I . llllllcd
to $1'9.71h
Sixth, the original decision to lay off employees. and the
selection of Shilling, Adcock. and ('hace as the ones to be
laid off, had been made in August-- almost a month before
Adcock had contacted L.ocal 29. Seventh. the selection of
these employees for laoff had not been illogical inasmuch
as organizing activity had been discontinued due to the
negotiation of new agreements and the need for Respon-
dent to maintain its then-current representation position
by concentrating on prevailing in the elections being con-
ducted as a result of decertification petitions.
Eighth, both Marolda and Davis denied possessing an`
knowledge of the campaign to secure representation b\ l.o-
cal 29, and there is no direct evidence of such knowledge
by Respondent's officers prior to receipt of the petition.
Moreover. there is no direct evidence that either Marolda
or Davis had been aware of Adcock's conversations with
Main or that they had known the identities of the office
employees who had signed cards authorizing Local 29 to
represent them. Ninth. Shilling did not participate in Local
29's campaign. While he did contact the Board's regional
office to ascertain if Local 29 had filed a petition, he did so
at the behest of Adcock. who did not disclose to him the
reason for the call prior to asking him to make it. and he
had simple relayed to her the response which he had re-
ceived from the Board agent to whom he had spoken.
Thus, his activity had been purely informational and in no
sense of the word can it be said that he sympathized with
or supported the office employees' efforts to obtain repre-
sentation by Local 29. Tenth, seemingly Marolda would
have felt that Shilling and Adcock would not favor repre-
sentation of the office employees, for in June or July theN
had come to him and had disclosed that one of the office
employees might be attempting to organize her colleagues.
Finally, there is no evidence, nor does it seem likely. that
Respondent would have been opposed to the concept of
representation of employees by a labor organization and
there was no animus expressed by Respondent to represen-
tation of its office employees by Local 29. To the contrary.
Marolda expressed pleasure and support for their represen-
tation at the October 5 executive board meeting and, as set
forth above, invited Main to contact him to explore "alter-
*,atives" to an election as a means of demonstrating Local
29's representative status.
Nevertheless. a series of factors are present which tend
to demonstrate that Respondent's defense should not be
credited because it was not the true reason for its actions of
October 7 regarding Shilling. Adcock, and Chace. First.
Marolda's testimony that the three employees were laid off.
not terminated, is contradicted directly the wording of
his own letters to them, quoted above, in which he notified
each of their "termination." The use of this word can hard-
Iv be characterized as inadvertent, since Marolda acknowl-
edged that "I discussed with my attorneys regarding the
layoff and that's the language the) came up with." It is
hardly likely that Respondent's attorneys would fail to ap-
preciate the distinction between termination, which would
render Adcock and Chace ineligible in anN election con-
ducted as a result of local 29's petition. and layoff, which
would not necessarily preclude them from being eligible to
vote in such an election. See Ra-Rich Alanullicltring ( orplo-
rotionL 120 N I.R B 1444. 1447 (1958): lit'crcontinental Maln-
BARTENDERS LOCAL 9
_ . . _ . .
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ufacluring Company, Incorporated, 192 NLRB 590, fn. 4
(1971). Accordingly, the use of the term "termination" in
the October 7 letters directly contradicts Marolda's testi-
mony regarding the nature of the personnel action effected
by Respondent on October 7.
Second, both Marolda and Davis testified that prior to
the October 5 executive board meeting, they had discussed
the matter of Respondent's declining membership and fi-
nances as the reason for recommending the personnel ac-
tion taken with respect to Shilling, Adcock, and Chace.
Both also testified that it had been Davis who had initiated
the recommendation. Thus, Davis testified, "[w]e discussed
it prior to, [the executive board meeting] because I recom-
mended it to him." Yet, this portrayal of Davis' attitude is
not consistent with a contemporaneous event. It is undis-
puted that in September Office Manager Krueger had ap-
proached Davis and had asked if she could hire part-time
help to aid in preparing a membership survey requested by
Respondent's insurance company. Neither at that time nor
later, when Krueger renewed her request shortly before the
October 5 executive board meeting did Davis mention that
any financial problems would be posed by her request to
hire additional, albeit part-time, personnel. Instead, he had
simply replied that board approval would be needed before
her request could be granted. But, had Davis been con-
cerned with Respondent's financial position, as was por-
trayed at the hearing in this matter, it surely would have
made no sense for him to have misled Krueger, who was
one of Respondent's supervisors, after all, into believing
that her request might be approved.
Third, both Marolda and Davis testified that Respon-
dent had been losing money at the time of the October 5
executive board meeting. Thus, referring apparently to the
months of August and September, Davis testified that he
had told the board that the loss in "one of those two
months in that period [had been] approximate [sic] $7.000."
But analysis of the financial records produced at the hear-
ing shows no basis for such an assertion. To the contrary.
these records disclose some basis for cautious optimism
prior to the October board meeting. For while Respon-
dent's receipts had declined during the course of 1977, as
set forth above, its receipts for September had been $2,588
greater than those received in August. Moreover. a break-
down of the figures for the various categories of receipts
during those 2 months shows improvement in September
over August in the important categories of dues ($1,206
increase), application fees ($516 increase), and reinstate-
ment fees ($868 increase).
By contrast, Respondent's belt-tightening campaign ap-
pears to have been quite effective by the end of September.
Its total salaries, wages and other employee expenses had
dropped from $39,291 in June to $31,874 in July. to
$28,445 in August, and to $27,372 in September. More sig-
nificantly, the salaries category shows that in August
$22,035 had been expended, but that only $16,703 had
been spent in September for salaries. Consequently, a 24-
percent saving in salaries had been effected in the month
immediately preceding the October executive board meet-
ing, and no showing has been made as to why it would
have been deemed necessary. economically, to terminate
additional personnel.
Most significantly, these figures show that rather than
having lost money during August and September, as Davis
testified. Respondent's receipts had exceeded its expenses
in both months. In fact, the dues receipts alone had ex-
ceeded expenses in those months: $38,501 received for
dues in August and $39,707 for dues in September.
Fourth, like Davis, Marolda also testified to declining
finances and membership prior to the October meeting. As
shown above, his testimony with respect to the financial
decline was flatly contradicted by the very records that
Respondent chose to produce at the hearing. While his tes-
timony was accurate generally regarding the membership
decline, he chose to embellish the degree of that decline.
testifying that Davis "had indicated we dropped over 200
members in September which he discussed in the October
5th meeting." The actual decline, as shown in section III,
A, supra, was only 131 members in September. Further, the
minutes of that meeting, prepared by Davis and thus self-
serving in view of their recitation of the report made to
secure agreement to the termination of the three employ-
ees, show that, in fact, it had been Marolda who had made
the report on the decline in membership. Moreover, ac-
cording to those minutes, while there had been mention of
a ecline "of approximately 200 members," that figure per-
tained to an anticipated loss in October when, in fact, Re-
spondent lost only 41 members.
Fifth, had Respondent lost more members in October, it
would not have been surprising. By selecting Shilling and
Adcock, Respondent terminated its only two employees
who were responsible on other than an ad hoc basis for
organizing. This activity then became the responsibility of
the staff representatives, who, in addition to doing what-
ever organizing activity they had time for, were responsible
for visiting restaurants to service members, ensuring com-
pliance with collective-bargaining agreements by em-
ployers, checking to be certain that all employees of such
employers had become members of Respondent following
completion of their probationary periods, and aiding in
Respondent's picketing activities. Moreover, Albanoski
was transferred from staff representative work to working
in the office and Gerber was moved to the office to per-
form dispatching work on October 10. Thus, the comple-
ment of staff representatives was reduced by two in num-
ber following the October 7 terminations. In view of the
fact that Davis was Respondent's financial secretary-trea-
surer, as well as a business agent, this means that following
the terminations, only three full-time staff representatives
(Santamaria, Curci, and Waller) were available, notwith-
standing the increased responsibilities for conducting orga-
nizing activities that were bestowed upon them.
Sixth, Marolda took one additional step that was incon-
sistent with an effort to obtain additional members. In
1975, International had provided a monthly subsidy, deno-
minated defense fund, which was principally designed to
subsidize organizing activity by Respondent. The last
month for which this subsidy was provided was the month
of October, and Marolda conceded that he had agreed to
its cessation "because we were dropping membership since
May on and I really couldn't justify it." Yet, in April, Re-
spondent had made a deliberate and conscious decision to
reorient its activities by eliminating further organizing ac-
BARTENDERS LOCAL 19 245
tivities so that its efforts could be directed to negotiating
new collective-bargaining agreements and to combating
losses of membership in elections conducted pursuant to
decertification petitions. In short, since it was a contract
year, and inasmuch as Respondent had ceased temporarily
further organizing efforts, it should hardly have been sur-
prising that its membership had declined. Marolda conced-
ed that this had been a traditional occurrence. But, so far
as the record discloses, Marolda never bothered to point
that fact out to International. Of course, a continued de-
cline in membership following the terminations would
serve to fortif) Respondent's position that they had been
economically, not unlawfully, motivated.
Discussion of Respondent's temporary abatement in its
organizing activities leads to consideration of a seventh in-
firmity in Respondent's defense. It was conceded by Mar-
olda that agreement on the association collective-bargain-
ing agreement had been reached in June. In August.
printing of copies of that collective-bargaining agreement
had been completed. Albanoski testified that, upon receipt
of the printed agreements. she had gone to the independent
nonassociation employers in her district who usually went
along with what had been agreed to by the association.
There is neither contention nor evidence to support a con-
tention that her procedure and experience in this respect
was unusual. Nor is there evidence of any significant num-
ber of independents who had not agreed to and signed
agreements by the end of September. Consequently. by the
October 5 executive board meeting. the objects for which
Respondent had suspended organizing activity had been
attained. New agreements had been negotiated and execu-
ted. Those agreements served to bar the filing of additional
decertification petitions. Thus. Respondent's personnel
were relieved of further need to divert their efforts to at-
tempting to retain representative status at locations where
Respondent had been the historic representative. In sum,
by October, the factors which had led to the suspension of
organizing efforts had ceased to prevail. Indeed, this ap-
pears to have been recognized by Marolda himself. For in
the summer, he had alerted Adcock not to become too
comfortable in the job of dispatcher as, with the conclusion
of negotiations, she would be going back to organizing.'
Nevertheless, on October 7, Respondent terminated the
two employees whose specialty had been organizing.
Eighth, even assuming arguendo that there had been
some basis for terminating its organizers, the selection of
Shilling for termination was not as logical as it appears at
first blush. Prior to becoming director of organizing, Shill-
ing had been a staff representative, assigned to district 2.
No complaints were voiced regarding his performance in
that capacity. To the contrary, following the resignation of
the then-director of organizing. Edward W. Finnegan, in
April of 1976, it had been Shilling who had been selected
This finding of fact is based upn the testimonies of Schilling Iand Ad-
Lock. Marolda also described the same on erslrl,aion Li the one nI shliLt
the? testified that Ithis comment h ad been made h\ him Marolda did Inoi
dens specifically having made he commenl Indeed he agreed haIt the
subject had been raised. tesliLing hat AdLock had nquired boht lthe oIh-rl
niting and Ihat he had replied that Respondent .ia, currenril iI ng l.l-
tions and wo uld hse Ito gel I he . llir.tls c1 tlled A-t rdilig I find til lit
he did make the commtentl altrlbutled o him bh
x
Shllhny alld 1111\1t ,
by Marolda to replace him.7 Shilling had then been re-
placed as staff representative for district 2 by Gerber. who
was still serving as staff representative for that district on
October 7. despite the undenied fact that, on several occa-
sions, Marolda had been critical of Gerber's performance.
In fact, on one such occasion, the criticism had pertained
to Gerber's use of dues money that he had collected as the
source of. in effect, an interest-free loan until the date for
receipt of his paycheck arnved. Nevertheless, despite
Shilling's request of Marolda on October 7 that he be re-
turned to the position of staff representative for district 2,
Marolda chose to retain the oft-criticized Gerber and to
bid farewell to the promoted Shilling. 8
In an effort, seemingly, to avoid the averse implication
between terminating Shilling while retaining Gerber. Mar-
olda testified initially that Shilling had been "made an or-
ganizer because Mr. Shilling didn't want to work as a staff
representative." This was denied by Shilling, who testified
that he had never said that he did not want to work as a
staff representative and had never expressed displeasure
with the job. Rather. Shilling testified that, at the time that
he had been appointed director of organizing, he had said
only that he preferred being an organizer. That Shilling's
testimony to the effect that he had only expressed a prefer-
ence for being an organizer over being a staff representa-
tive, but had never said that he did not like working in the
latter classification, was accurate was shown by Marolda's
own recitation of Shilling's specific comment. For. having
characterized Shilling's purported comment. Marolda then
testified that "le told me that he would rather work as an
organizer." (Emphasis supplied.) Similarly. Marolda later
testified that Shilling had said that "he preferred to orga-
nize than to be a business agent." (Emphasis supplied.) At
no point did Marolda relate any specific comment by Shill-
In a Irar.sparent effort ,I minimize the adserse mpact of this oblous
promlit. %Marolda testified that the title director of organzing had no
meanitll because he himself. "as the head of the organizalion am the
direclor of organizing "Aside from the inherent illogic of an assertion
that a meaningless title had been perpetuated after Finnegan's reslgnation
and the absence of ans logical explanation for doing so. there is no evidence
that Mlarolda. had engaged in organizing actilllles or that he had coordinat-
ed the organizing allitles of een a single estahlishment during Shilling'
enure as director of rganlillion
Despite the fact that. as quoted at the beginning of this subsecton. the
asserted nlitlie fr the terminltionns had been solel a matter of economics.
in it, brief. Resppondent s\nthesizes the critical comments regarding
Shilling',. sork a, director of otganizing and brands his sork Ithat capurl-
ti ., Ihalng been unsalrsfactort, . based upon the purported paucit of es-
tabhlhnments otrg.niced during his tenure Of curse. if oine accepts
larold.a', testnimns. referred ito in n 7 abose. that he tIMarotdia) had been
resporsible for being director of organizing. it hardl' seems reaslonable to,
cilltpla.Iitl bitIt Shilling in connectlion ith the aseredls insufficient numn
her of clihlihnilents rgalnized He>ond this. It Is hardl; surprising that the
orgncamilg departmenint ould ha.e been the "least productixe." ai, .arld
testified. dJuring the mrinls preceding the terminations. sinte. as set forh 1,
icllits es hd been suspendedl scice the pring there , sortme eidence that
Shilling did not perforni .lliicther 1i an icceptable lesel hen he had beein
,isigned to negtiale . c le,ie-harga.ining agreemnent ith ne of the n-
dependenit etphl,,ers et. s.i far ais the record discloses. this appears i0
h,e been . ne, rle fr hint that ,f negotiator and hrdi, reflects .ad-
ersel ipin lls .ihlitN I{o function a an organizer sloreiser. Shilling had
beei directlor f rganilng ice Juls 1976 mnd. ciordingli. had ,cCupied
that psoition f .Ipprtlirislicl 10 iotlhs b the tinie of the uspeniiln of
orlaill ing ctinles eCt ReCspndcHe i: nleser look itni .,litl) to reprilmand or
rerl.iLc hiti Surelc it Is no,u II1 difficult straiils hen it mnakes t .Ireunitint
bascd upon tli1 caliber f his ork p.irtltl.lirs hlcrl hat v.Ls nilt the
crisell .ssiClined for hls ItIrllll.l inll
BARTENDERS LOCAL 19
-
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing that could be construed as being tantamount to a state-
ment of not wanting to be, or not wanting to do the work
of, a staff representative.
Ninth, perhaps the most significant infirmity in Respon-
dent's defense arises from the August effort to lay off Shill-
ing, Adcock, and ('hace. At the executive board meeting
that month, before the printed contracts had been pre-
pared and circulated among the employers for execution, it
had been decided to lay off these three employees. How-
ever, in general membership meetings the following week,
that decision was overruled. Thereafter, Respondent had
abided by the decision of its membership. Although its
membership declined by more than 250 members and its
receipts dropped by almost $6,000 in August. Respondent
made no effort, so far as the record discloses, to again raise
the matter of these three employees in September. It did
not seek to implement the layoff decision of the executive
board made in August. It did not again consider the matter
at its September executive board meeting. It did not again
bring the issue before its general membership meetings. It
simply abided by its members' decision to retain these
three employees.
Accordingly, prior to the October executive board meet-
ing, it appears that the events of September had led Re-
spondent to regard the matter as dormant. The collective-
bargaining agreements had beeen signed and, accordingly.
organizational activity could presumably resume. Respon-
dent's receipts, particularly its dues collections, had im-
proved in September. Davis had not rejected Krueger's re-
quest for part-time help but had tacitly led her to believe
that he did not oppose the hiring of additional personnel to
complete the survey requested by the insurance company.
Then, suddenly, the executive board decided to terminate
Shilling, Adcock, and Chace. Only this time, they were not
retained on the payroll to enable the matter to be brought
before the general membership. Within 48 hours of the
board meeting, the decision was implemented.9
While, as found above, certain factors are present in this
case which tend to support Respondent's economic de-
fense, the impact of many of these factors is negated by
others listed above. Several matters tending to undermine
Respondent's defense were left unexplained. Others were
inconsistent with objective considerations. Neither Marol-
da nor Davis appeared to be attempting to be candid in
relating his motives and the events which had transpired in
this matter. Rather, as is shown by several examples men-
tioned above, they appeared concerned only with tailoring
their recitations of events to fortify Respondent's position.
Therefore. I do not credit the defense advanced by Re-
spondent.
Whether r not Resprondentits hbOl;la required It to hllill ieilltlher[
appros al before terminating these enmplo)ees hegs the quetion 11 del.laed
implementing its decision in Augul uitil he lneCiherhl 1 p nicetilles ii
which the decision wa brhuht bhelre Ihe mlemher.hip I[ri its collslJdelilio
it did not do so in October (onsequenl. .ithout regail td the htl.['i
requirements. the significant point is that prior Io the petilon. Rcsponilldc
had delayed final action until the memblhership had had :in pprlit\ t
vote in the nmatter. but thll after the pcl iltl hd heen filed. tile ,iliie
decision had been inplemenled hurriedlx anid ithouiul hrtilen i t tihe
mehibers' altenlion a31 he ()toher Ilinlhership nicerigs No epl.llliltl].
wa;s advanced bh Respondents uvinleses to expl.inl e dillffereie II tlhe
procedure followedl il the two occa.islons.
Since the economic defense advanced by Respondent
has been found not to be the true reason for the termina-
tions of October 7. the fact that Respondent has chosen to
present a false defense can be fairly construed as an effort
to conceal the true motivation and, further, as the basis for
inferring that Respondent's true motivation was unlawful.
Here, the decision to terminate Shilling, Adcock, and
Chace was made 2 days after receipt by Respondent of a
copy of Local 29's petition. The proximity of the two
events "...strongly suggests a causative relationship be-
tween the two and is, as we have said, sufficient to establish
a prima facie case .... " Union Camp Corporation. Build-
ing Products Division 194 NLRB 933 (11972), enfd. 463 F.2d
1136 (5th Cir. 1972). Particularly is this so where, as here.
the terminations were precipitous and contrary to Respon-
dent's need and ability to resume organizing activity fol-
lowing negotiation and execution of the 1977 collective-
bargaining agreements. In addition, the decision to termi-
nate employees as an economic measure was inconsistent
with the improved financial position in which Respondent
found itself at the end of September.
It is accurate that there is no direct evidence that Re-
spondent had been aware of the identities of those who had
advocated representation by and signed authorization
cards on behalf of Local 29. Yet the petition disclosed the
group of employees whom Local 29 desired to represent
and the precipitous nature of the terminations would serve
as a warning of what could happen to those who did sup-
port Local 29. See Hambre tiombre Enterprises. Inc., dh;/;a
Panchito's. 228 NLRB 136. 137 (1977). enfd. 581 F.2d 204
(9th Cir. 1978). Consequently, it was not necessary for Re-
spondent to terminate the strongest proponents of Local
29, for the terminations would serve to make the point as to
what could happen to them if they persisted. Further, dur-
ing his summer conversation with Adcock and Shilling,
Marolda bragged about having sources from which he had
learned of the organizing campaign which another employ-
ee was suspected of conducting. Seemingly, such.sources
would still exist only a few months later. Finally, Krueger
was aware of the campaign and, even though she had
signed a card for Local 29, her knowledge can be imputed
i) Respondent. Montgomery Ward & CompanY. Incorporat-
ed, 115 NLRB 645. 647 (1956), enfd. 242 F.2d 497, 502 (2d
Cir. 1957); Stewart & Stevenson Services, Inc., 164 NLRB
741, 743 (1967). enfd. 414 F.2d 232 (5th Cir. 1969); Munro
Enterprises, Inc.. 210 NLRB 403, fn. 3 (1974).
Notwithstanding all of the above, however, the crux of
this matter turns on the nature of Respondent, for as a
labor organization, it presumably would not be hostile to
the concept of representation of employees or to the pro-
cess of collective bargaining. Indeed, both at the October 5
executive board meeting and in his October 24 mailgram,
Marolda expressed a favorable attitude toward the idea of
the office employees being represented. On the other hand.
it is unlikely that at official of his long experience in the
union movement would publicly proclaim hostility toward
representation of Respondent's employees. Not only could
this affect him adversely with Respondent's members, but
it is unlikely that he would fail to appreciate the signifi-
cance that such comments could have in any unfair labor
BARTENDERS LOCAL 19 247
practice proceedings brought against Respondent during
the course of Local 29's campaign.
His expressions of willingness to participate in an exped-
ited election were somewhat less than gracious in light of
the termination of two-thirds of the employees in the unit.
Similarly, his offer to Main to explore "alternatives" to an
election, as a means whereby Local 29 could establish its
majority status, was not as magnanimous as it appears on
its face. For. by October 24. all of the employees who had
signed authorization cards for Local 29 had been dis-
charged or replaced. The only people working in the office
were ones who had not been employed there during Sep-
tember and who had commenced work in the face of pick-
eting by Local 29. Accordingly. it was a safe bet not only
that they had not signed cards during the period prior to
the filing of the petition in Case 32-RC 134. but also that
they would not be favorably disposed to representation by
Local 29. Consequently, the fact that Marolda made public
statements favoring the representation of the office em-
ployees and expressing willingness to expedite the election
and to bargain with Local 29 as their representative is
hardly dispositive of his true feelings in the matter.
Undoubtedly, Respondent, like other labor organiza-
tions, supports the principles of representation and collec-
tive bargaining. Yet the "do as I say and not as I do"
attitude is not foreign to labor organizations. It is not un-
precedented for a labor organization to oppose representa-
tion of its own employees. See, e.g., Retail Store Employees
Union, Local 444, Retail Clerks International Association,
161 NLRB 1358 (1966); International Ladies Garment
Workers' Union. AFL-CIO, 142 NLRB 82, 112-113 (1963),
enfd. as modified 339 F.2d 126 (2d Cir. 1964).
When he appeared as a witness, Marolda impressed me
as one who would not lightly brook opposition to or inter-
ference with his own conception of how things should be
handled. An illustration of this attitude was his reaction to
the Council's unwillingness to postpone its emergency
meeting, called to consider Local 29's request for emer-
gency strike sanction in light of the October 7 terminations,
because of his conflicting prior commitment. Marolda was
obviously aware of the significance of the problem which
had given rise to that meeting and, also, of the serious
nature of the allegation which had occasioned the request
for sanction. Yet, when he failed to get his own way re-
garding the postponement, he designated no one to appear
in his stead, but rather simply ignored the meeting, leaving
it to Respondent's International to later straighten out the
matter. Given this basic intransigent attitude, it is hardly
likely that Marolda would welcome interference with his
control over the operations of Respondent's office by a
collective-bargaining representative of the employees em-
ployed there. Indeed, Respondent's financial difficulties
had led to the institution of cost-savings measures during
1977, and, given Marolda's experience as a union official,
he would well appreciate the potential for interference with
his authority that an active bargaining agent would pose
when such measures adversely affected the office employ-
ees whom that agent represented."
10 For example. the office emplosees are alaried lith the result hat.
while the, had worked overtime prior to qSugusil they vwere ntt granted
premium overtime pav for those houllr. . a.lne It Res,pondent, hu tone
In sum, from Marolda's point of view, there was ample
reason, albeit prohibited by the Act. for aborting Local
29's campaign to represent Respondent's office employees.
The timing of the terminations. both from the standpoint
of receipt of a cop) of the petition bh Respondent and
from the standpoint of completion of the contract negotia-
tions which had led to suspension of organizing activity,
supports the conclusion that the terminations had been un-
lawfully motivated. Moreover, for the reasons enumerated
above. it is evident that the economic defense advanced by
Respondent was not applicable to the circumstances con-
fronting Respondent in October and was not the true rea-
son for the termination decision. Rather, that defense was
advanced as pretext in an effort to obscure the true reason
for the terminations. That Respondent felt it necessary to
advance such a pretextual reason fortifies the General
Counsel's argument that the true reason for these termina-
tions had been an unlawful one.
Respondent, however, argues that the termination of
Shilling was inconsistent with a finding of illegality, for he
was neither an office employee nor active in Local 29's
organizing campaign.' l Nevertheless, such an argument
overlooks the circumstances confronting Respondent in
October. It had been seeking a valid basis to support the
legality of the terminations which it made to defeat Local
29's campaign. As an experienced union official, Marolda
uadoubtedly was alert to Respondent's vulnerability to an
unfair labor practice finding in view of the proximity of the
terminations to receipt of the petition. Consequently. as its
economic defense shows, Respondent attempted to conceal
its unlawful motivation by simply transposing the decision
of August to October. That is, it reaffirmed the earlier deci-
sion of August, made prior to completion of the printing
and execution of the new collective-bargaining agreements,
and implemented it in early October, even though. as
found above, the contracts had by then been executed and
Respondent was by then free to resume organizing activi-
ties. By this device, Respondent hoped to construct a de-
fense that would withstand scrutiny based upon the fact
that the August decision had preceded commencement of
Local 29's organizing campaign. Shilling, of course, had
teen encompassed by that August decision. In fact, how-
ever, in concentrating on this point, Respondent lost sight
of the fact that, as found above, other circumstances had
changed. leaving the termination decision, though reason-
able in August. without relationship to Respondent's situa-
tion in October.
Consequently, Shilling's termination had been but one
facet of an overall scheme designed to undermine Local
29's campaign. While he had not been personally involved
in that campaign, he became a pawn in Respondent's over-
which Iocl 2'4. were it t become the representatise f those eiploees.
miht e ll eek to hare ended
It is not necessar) to reach the argumenis of he (ieneral ( nuisel and
(hlrging PartN hbased upon Shillings s)mpathies for he poitiorn of the
clericall emiploees and hi, efforts to aid them in ohialiniln reprecenllttil in
the past Suffice to s;a that his tactivties n this regard were. in the fi al
analsis. i m inimal Moreo er. his consersatlon with Shilling In June or Jul
concerniing Soub.'s suspected organi.ing actuilt whould nmore likels hase
left Maroldla with he belihef that Shilling was not disposed f.Iorubh l tio.ard
represenlalln.n f the clerical emploees an Iipresolt w hich Shillhig ac-
know lcd ged hing intended to create
BARTENDERS LOCAL 19 7
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all strategy and his termination would not have occurred
but for that effort to prevent Local 29 from organizing the
office employees. Therefore, his termination violated Sec-
tion 8(a)(3) and () of the Act.
C(. The Strike by Local 29
Upon learning from Adcock of the terminations, Main
contacted the vice president of the Council to discuss ob-
taining emergency strike sanction. On October 9. she con-
firmed this request by letter to the Council, pointing out,
"The urgency of this matter was instigated by the termina-
tion of two employees who are party to an upcoming
NLRB election." On October I 1, the Council conducted a
hearing on her request. At this hearing, testified Main. "I
made the presentation from the Union's point of view re-
garding why we felt we needed strike sanction based on the
terminations, the issue of the office manager, the one-per-
son unit." Adcock and Chace were questioned about the
events which had occurred at the time of their termina-
tions, and the Council then granted strike sanction to Lo-
cal 29. Picketing commenced the following morning at Re-
spondent's San Jose facility. Krueger, Albanoski, and
Arvieson respected the picket line which was maintained
until the close of business on October 21. Local 29 ceased
picketing thereafter due to the withdrawal of sanction by
the Council.
As found above, the terminations of Adcock and Chace.
as well as of Shilling, were violations of Section 8(a)(3) and
(I) of the Act. Thus, they were unfair labor practices. Since
Local 29 sought and obtained strike sanction because of
those unlawful terminations, the strike was an unfair labor
practice strike. For, while Local 29 also sought recognition
2nd a collective-bargaining agreement with Respondent,
"if an unfair labor practice had anything to do with caus-
ing the strike, it was an unfair labor practice strike." Gener-
al Drivers & Helpers Union, Local 662, IBT [Rice Lake
Creamery Company] v. N.L.R.B., 302 F.2d 908, 911 (D.C.
Cir. 1962), cert. denied 371 U.S. 827 (1962).12 Moreover.
since the strike was one protesting unfair labor practices,
Albanoski and Arvieson, who had respected the picket line
erected to implement the strike, were also unfair labor
practice strikers, entitled to reinstatement upon request
and without regard to whether they had been replaced dur-
ing the strike.
On one occasion during the strike, Davis took photo-
graphs of some of the pickets. At one point, he testified
that he had done so at Marolda's direction "to have proof
12 I reject Respondent's contention that Main's October 20 mailgrani had
the effect of converting the strike to soiels, an economic one merele becau,.e
she offered to cease picketing in return for an agreetmen. In the rmailIgla.ill
she also made clear that Local 29 was not abandoninng its a,,sertion that the
terminations had been unlawfully motivated, but rather was sinipl i lhing
to "leave question of termination with N RB" Accordingls. her offer ex-
presses no more than willingness to resolve part of the dispute dirccils be-
tween the parties, while permitting the remainder to be resolscd bh bce
normal processes established bh the Act In no sense did she thereb aIhan-
don Local 2
9
's contention that Respondent had unlawfulls terminated the
employees on October 7. nor can it be said that her suggestion of an ahlernrl-
tive means for resolutlion of the dispute rose to the le'el of an ahbandon ilinci
of the object of the picketing She swas simpl\ suggesting a less disrupxc
and more peaceful means b, which the tiotal dispute could he handled
that these people did walk a picket line with picket signs in
their hand." However. Davis claimed that he could not
recall whether Marolda had advised him what use might
then be made of the photographs, and Marolda gave no
testimony concerning any purported direction to Davis to
take these photographs. Consequently, this explanation for
taking the photographs was uncorroborated. Further, it
was not the only explanation that Davis advanced for
photographing the pickets. He also testified that this had
been "the first time I could think in the history of the Local
that the Local had its own employees out there. I would
like to have a picture of this."
As Respondent points out in its brief, there are instances
where "taking pictures of pickets is not violative of the
Act." Thus, no violation has been found where the photo-
graphs were taken to use as evidence in an injunction pro-
ceeding. See Hilton Mobile Homes. 155 NLRB 873, 874
(1965), enfd. as modified on other grounds 387 F.2d 7 (8th
Cir. 1967). Nor where the photographs were taken to se-
cure evidence of unlawful strike activity has a violation
been found. See Cavalier Division of Seeburg Corporation
and Cavalier Corporation. 192 NLRB 290, 296 (1971), enfd.
as modified on other grounds 476 F.2d 868 (D.C. Cir.
1973).
However, there is no evidence in the instant case that the
pickets engaged in unlawful conduct or that there was a
basis for anticipating that they would do so. Nor has there
been any showing that Respondent had instituted any in-
junction proceedings as a result of their picketing. Conse-
quently, these standard defenses to photographing pickets
are not available to Respondent. Moreover, Davis ad-
vanced differing explanations for taking the pictures. As
was pointed out in Larand Leisurelies, Inc., 213 NLRB 197,
fn. I (1974), enfd. 523 F.2d 814, 819 (6th Cir. 1975), where
photographs are taken at a time when there is no reason to
anticipate striker misconduct, "it is clear to us that Respon-
dent's picture taking was calculated to create and did
create an impression of management surveillance of pro-
tected and peaceful activity carrying with it the implicit
threat of possible future retaliation." (Citation omitted.)
"[T]he Board and courts have long held that in the absence
)f any proper justification therefor, photographing strikers
engaged in picketing or employees engaged in other union
activities constitutes illegal interference, restraint, and
coercion." Puritana Manufacturing Corporation, 159 NLRB
518, 519, fn. 2 (1966).
Therefore, I find that by photographing and attempting
to photograph the pickets during Local 29's strike, Respon-
dent violated Section 8(a)(1) of the Act, particularly in
view of the fact that this conduct occurred only shortly
after Respondent, as found above, had unlawfully termi-
nated three employees in an effort to put an end to Local
29's attempt to organize Respondent's office employees.
D. The Refusal To Reinstate Arvieson and Albanoski
During the course of Local 29's strike, Respondent had
retained Catherine E. Mullens, Ginger Bautista, and Dian-
ne Souza to perform its office work. On Friday, October
14. former vice president of Respondent. Herschell Mor-
gan. had a telephone conversation with Marolda, in which
BARTENDERS LOCAL 19 249
the latter said that he was happy with the work of these
three women and intended to keep them permanently.' 3 On
Saturday, October 22, when it had become known that Lo-
cal 29 would no longer be picketing Respondent, Morgan
related Marolda's comments to Albanoski. She, in turn,
related his comments to Krueger and Arvieson. The three
of them agreed to meet at Respondent early Monday
morning, so that they could apply to return to work at the
same time. In addition, in light of Morgan's remarks, Alba-
noski telephoned other members of Respondent, asking
them to be present as witnesses to what transpired that
morning.
The events of October 24 are not altogether clear. Differ-
ing accounts were related by the witnesses for the General
Counsel and for Respondent. Each seemed to be embel-
lishing the account of the events of that day in an effort to
aid the side which he or she favored. For example, Krueger
and Adcock were not altogether forthright on the content
of the picket signs prepared later that morning, apparently
because they testified at a time when it was not known that
Respondent would be able to locate those signs. Thus, Ad-
cock testified that there was no mention of "gangsters" on
any of the signs, but two signs bearing that term were later
produced. Similarly, not only were the interests of Mullens,
Bautista, and Souza adverse to those of Krueger, Arvieson,
and Albanoski, by virtue of their positions as replacements
who had reported during a strike against Respondent, but,
in addition, they had gotten together prior to the trial and
put together a statement of what had taken place in Octo-
ber based upon their collective recollection. Consequently,
it is not surprising that their testimonies would be mutually
corroborative and it is impossible to say exactly which one
truly recalled a specific event, as opposed to having been
persuaded that it occurred by virtue of the recollection of
one of the others.
Nevertheless, certain events do appear to have occurred,
based upon the probabilities of the situation. With respect
to others, upon which Respondent relies to assert that the
alleged discriminatees should be barred from reinstate-
ment, I have adopted the accounts of Respondent's wit-
nesses because even assuming that these events transpired,
they are not, as a matter of law, sufficient to constitute
misconduct. In this regard, two principles should be fo-
cused clearly at the beginning. First, where employee mis-
conduct which does occur has been the product of an em-
ployer's unfair labor practice, the latter must be weighed
against the former to determine whether reinstatement
should be barred. See N.LR.B. v. Thayer Company, 213
F.2d 748, 755 (Ist Cir. 1954), cert. denied 348 U.S. 883;
Golay & Company, Inc. v. N.L.R.B., 371 F.2d 259, 263 (7th
Cir. 1967), cert. denied 387 U.S. 944; N.L.R.B. v. Local
833, International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America [Kohler Compa-
ny], 300 F.2d 699, 702-705 (D.C. Cir. 1962), cert. denied
370 U.S. 911, and 345 F.2d 748 (D.C. Cir. 1965), cert. de-
nied 382 U.S. 836. Second, to establish that an employee is
barred from reinstatement for misconduct, it is not enough
To accomplish this, however. Marolda was required b art. VI. sec. I of
Respondent's bylaws to obtain approval of the executive board, which, of
course, Vwas not scheduled to meet again until earls November.
to show simply that it occurred while that employee was
present, for "misconduct or excesses of others engaged in
protected activity cannot be imputed to those who do not
participate in the excesses." N.L.R.B. v. Standard Container
Co., 428 F.2d 793. 795 (5th Cir. 1970). "And their silence
provides no rational basis for inferring that theN ac-
quiesced in the wrongs of others with whom no agency
relationship is shown." International Ladies' Garment
Workers' Union, AFL B. VI:D. Compan,, Inc.] v. N.L.R.B.,
237 F.2d 545, 552 (D.C. Cir. 1956).
As related by Respondent's witnesses, the group which
included Krueger, Arvieson, and Albanoski had entered
the San Jose facility at approximately 8 a.m. and had
congregated near the dispatching window where they had
engaged in name-calling, directed to the three office em-
ployees, through the dispatch window. At approximately 9
a.m., Krueger, Arvieson, and Albanoski had entered the
enclosed office area, where they had remained until ap-
proximately 9:30 a.m. The three women then had left the
office, rejoining the group in the outer area. One or more
of them had again returned to the office area for a brief
period thereafter. The group then had gone to the back of
the building, possibly to the back parking lot, and a few
minutes later had "trooped," to use Mullens' term, through
the building carrying picket signs. They then had gone out
the front door and had begun demonstrating or picketing
in front of the building. Later, Krueger, possibly accompa-
nied by Albanoski and/or Arvieson, had returned and had
tried to enter the office, but the police, who had been sum-
moned, had told them to remain outside and to confine
their picketing to the outside of the building. Marolda did
not arrive until mid-afternoon. At approximately 3 p.m., he
had met with Krueger, Arvieson, and Albanoski. He de-
scribed their conversation which had ensued as follows:
Well, each one of the three ladies spoke, and I can't
recall which one, I think it was Krueger, mentioned
that she came to work that morning and she wants to
know if she has a job. If not, she wants her vacation
pay. And she had some figures there for her vacation
pay and she says: I want my vacation pay. And if I
have to quit, I quit.
I said: Well, Betty, why don't you put it in writing.
Then Joanne Arvieson said: Well, you know, Mr.
Marolda, we honored a picket line.
I says: You did.
Then Mrs. Albanoski says: Yeah, you wouldn't ex-
pect us to cross the picket line, would you? It's right in
our contract not to cross a bona fide sanctioned picket
line.
So I said: Lillian, what contract are you referring
to? I don't know of any people in office having a con-
tract.
They says: Well, do we have a job or don't we? And
are we going to get our vacation pay or aren't we? And
have we been replaced.
I said: Ladies, I can't answer that because Mr. Sta-
nek-I think his mother was just sick or had just died
and he would not be back in town until Wednesday,
and I told them I would have to check with Mr. Sta-
nek who at that time was representing ocal 19, and I
BARTENDERS LOCAL 19
o _ . . w. . .
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be back in touch with them. Mrs. Albanoski
made a remark, says: Well, we can't get anywhere
with him. He's going to do as he pleases anyway.
And then they proceed to leave, which they did.
They left.
Picketing continued the following 2 days. Most of the
signs which Respondent complains constituted misconduct
were located during the hearing. Of the ones produced,
Respondent takes umbrage with those bearing the legends:
"Unionism Not Gangsterism Honk Your Horn for La-
bor," "Get the Scabs out of our Union office," "Scabs Out
of Our Union Office Out with Marolda," "We Don't
Want Scabs In Our Union Office." "Practice what you
preach-get strikebreakers out of office," "Chupa pito seco
de Frank," "Yes Unionism Not Gangsterism," and "Out
with Marolda." Two signs were not produced at the hear-
ing. But, Respondent's witnesses testified that they had
been used during that 3-day period and that they had read:
"Mussolini brought in his regime- Marolda brought in
his" and "Marolda and Davis carry guns. Enter at your
own risk."
Before considering whether misconduct had occurred on
October 24 through 26, it must be determined whether Ar-
vieson and Albanoski actually had applied for reinstate-
ment 14 and, additionally, whether Respondent had denied
it to them, thereby violating Section 8(a)(3) and (I) of the
Act in view of their status as unfair labor practice strikers,
though possibly not picketers.
Davis denied flatly that the three former strikers had
asked to go to work or that they had said that they were
there to go to work. I do not credit his testimony. Each of
the three women testified that they had entered the office
portion of Respondent's facility that morning as a group
and had asked if they could start working. In response,
they testified, Davis had said that Marolda wanted to
speak with them first and that he should be in shortly. In
essence, this is what Davis testified had been said to him by
Marolda during a telephone conversation at approximately
7:55 a.m. Thus, as described by Davis, Marolda had said
that he would arrive shortly to handle any problems in the
office. Since Davis did not describe Marolda's words until
after all three of the former strikers had testified, it can
hardly be said that they manufactured their account based
upon having heard what Marolda had told Davis. Further,
Davis testified that after Krueger had entered the office she
had inquired about Marolda and that he had "told her that
Frank would be in shortly" thereby partially corroborat-
ing the account of what the three former strikers testified
that he had said. It is highly improbable that the three
former strikers, versed in Respondent's procedures and un-
doubtedly familiar with the procedure for applying to re-
turn to work after a strike, would go to all the trouble of
arranging to apply together and to have witnesses present
only to fail to make the applications to return. Of course,
they had heard that they had been replaced. But that was
hearsay. That they were, in fact, seeking to ascertain Re-
spondent's position directly from Respondent is shown by
14 No reinstatement remedy. if course. is sought for Krueger see fn. 4.
supra.
Marolda's above-quoted account of their questions con-
cerning Respondent's willingness to let them return. Con-
sequently, I find that on the morning of October 24.
Krueger. Arvieson, and Albanoski did make offers to re-
turn to work. 5
Krueger, Albanoski, and Arvieson testified that Marolda
had told them that he would have to consult with his attor-
ney before saying whether they were replaced permanently.
At one point, he claimed that his reference to consulting
with his attorney had pertained to their requests for vaca-
tion pay. However, so far as the record shows, there would
have been no need for Marolda to have consulted with
counsel regarding vacation pay, particularly as Davis, Re-
spondent's financial secretary-treasurer, was present and
available for consultation. I find that his testimony on this
point was no more than an effort to avoid admitting what
his own above-quoted description of the conversation dis-
closes fully-that while in the process of verbally fencing
with them, Marolda had told the three former strikers that
he had to speak with his attorney before he could tell them
whether they had been replaced. Accordingly, Marolda, by
his absence during the morning, when he had told Davis
that he would handle any problems in the office upon his
arrival, and by his comments during the afternoon meeting
of that day, did refuse to reinstate Arvieson and Albanoski.
Respondent, however, argues that they had been re-
placed prior to their requests to return to work. Even had
this been the fact, such a defense would not be valid. For
the picket line which they had observed had been the prod-
uct of a strike protesting Respondent's unlawful termina-
tion of employees on October 7. Consequently, Arvieson
and Albanoski had been unfair labor practice strikers and
"the striking employees do not lose their status and are
entitled to reinstatement with backpay, even if replace-
ments for them have been made." Ma.stro Plastics Corp. v.
N.L.R.B., 350 U.S. 270, 278 (1956).
Moreover, this record does not support the conclusion
that, at least Souza and Bautista had been categorized as
permanent replacements as of October 24. Bautista testi-
fied that she had been working on a voluntary basis, for
which she had not been getting paid, and "really didn't
care" how long her volunteer work was continued. At no
point did she testify that she had been told prior to October
24 that she was considered to be a permanent replacement.
More significantly, Souza testified that she had not been
told that her job was to be permanent when she had report-
ed for work and that it had only been after the November
executive board meeting that she had been so advised. In-
deed, as noted in footnote 13, supra, Marolda had been
required to obtain consent of the executive board before he
could make permanent the employment status of Bautista
and Souza. Significantly, it was not until November 7. fol-
lowing the executive board meeting for that month, that
Marolda had taken time to send letters to Arvieson and
Albanoski notifying them that the), had been permanently
I hai.e considered he possible argument, not adanced h Respondent,
tha[ hc presence of Krueger a supervisor. tainted the offers to return Iof
\lha ilt ski and Arvieson Howevser. there is no basis for finding that the
latter lo, hlad conditioned their offers to return oii Ithe reinstatement of
Krueger or for finding that the% would not have returned hd not Krueger
also been reinstated Io her psition as office i;lanager
BARTENDERS LOCAL 19 251
replaced. Therefore, I find that on October 24, there had
been at least two individuals working in Respondent's of-
fice who were not permanent replacements and whose du-
ties could have been assumed by Arvieson and Albanoski.
But they were not allowed to do so. As a result, Respon-
dent violated Section 8(a)(3) and (1) of the Act.
Respondent, however, contends that all four discrimina-
tees engaged in misconduct sufficient to bar their reinstate-
ment rights.'6 As argued by Respondent, this contention is
based essentially on three purported aspects of the events
of October 24-26: harassing and intimidating of Mullens.
Bautista, and Souza by name-calling and other remarks;
taking over and invading of Respondent's San Jose facility
and picketing inside that facility; and the legends on the
picket signs which assertedly attacked the integrity of and
urged the ouster of Marolda and Davis.
Taking first the name-calling, there is no evidence that
Adcock had engaged in any such activity. Accordingly, the
utterances of others could not serve to bar her right to
reinstatement. Standard Container Compant', supra. Souza
testified that during the course of the day she had heard
Albanoski accuse Mullens of being "Marolda's sweet-
heart." Both she and Bautista testified that Albanoski had
referred to the office workers as "scab labor." Bautista tes-
tified that, while in the office, Albanoski had asserted that
"It smells like scabs in here," to which Arvieson had ex-
pressed agreement. Moreover, Bautista testified that Alba-
noski had asked if Mullens was as "rotten" a typist as a
waitress. Both she and Mullens testified that Albanoski
had yelled that Bautista was chicken shit and that if Bautis-
ta did not know what that meant, she would find out when
Albanoski got hold of her and plucked her feathers. There
is no evidence, however, that Albanoski had made any
threatening gestures toward Bautista when saying this or
that Albanoski had done anything which would imply that
she actually intended to injure Bautista.
These are the only comments, which Albanoski and Ar-
vieson denied were made, attributed specifically to Alba-
noski and Arvieson between October 24 and 26. Assuming,
however, that they were made, the plain fact is that Alba-
noski and Arvieson, though entitled to reinstatement, had
not been reinstated. It had been the individuals working in
the office who were occupying their jobs. "Although the
Board does not condone the use of abusive and intemper-
ate language, it is common knowledge that in a strike
where vital economic issues are at stake, striking employees
resent those who cross the picket line and will express their
sentiments in language not altogether suited to the pleasan-
tries of the drawing room or even to courtesies of parlia-
mentary disputation." Longview Furniture Company, 100
NLRB 301, 304 (1952), enfd. as modified 206 F.2d 274 (4th
Cir. 1953). Therefore, I find that the name-calling de-
scribed by Respondent's witnesses does not suffice to bar
Albanoski and Arvieson from reinstatement.
A more serious comment was attributed to Shilling. Mul-
lens, corroborated by Bautista, testified that Shilling had
loudly asked her if she was "still s-king Frank off?" While
he conceded that he had spoken to Mullens that day. Shill-
I* No reinstatenment remed' is sought for (hace. ho was offered rein-
statement bh Respondent on ebhruar 22 1978
ing testified that he was positive that he had never made
any reference to any sort of alleged sexual behavior be-
tween Mullens and Marolda. He did not, however, deny
specifically having made the remark which Mullens and
Bautista attributed to him. Moreover, in describing the in-
cident, Mullens' demeanor was such that I fully credit her
account of what he had said. Respondent argues that this
comment alone is sufficiently pernicious to bar Shilling
from further consideration for reinstatement, since "[hjis
attribution of sexual conduct between Marolda and Mul-
lens was vile and totally unprotected."
It goes without saying that Shilling's remark was more
than mere name-calling. Cf. Longview Furniture Company,
supra. It was a direct accusation that Mullens had been
engaging in a sexual act which is not generally considered
to be acceptable behavior in any circumstances. "[A]lt-
hough the Board tolerates intemperate, abusive and inac-
curate statements made by the union during attempts to
organize employees, it does not interpret the Act as giving
either party license to injure the other intentionally by cir-
culating defamatory or insulting material known to be
false." William C. Linn v. United Plant Guard Workers of
America, Local 114, et al., 383 U.S. 53, 61 (1966). This doc-
trine is fully applicable in appraising the protection accord-
ed employee comments. See, e.g., N.L.R.B. v. Cement
Transport, Inc., 490 F.2d 1024 1029-30 (6th Cir. 1974).
Nevertheless, an analogous situation to that presented in
the instant case arose in Capital Rubber & Specialt}, Co.,
Inc., 201 NLRB 715 (1973). Among the conduct in which
two strikers engaged in that case were incidents where theN
had accused a nonstriking employee, who had been wear-
ing a striped dress at the time, of being a "striped whore"
and, on one occasion, had accused her and one of the em-
loyer's salesmen of having sexual relations during lunch-
time. Thus, there, as here, there were accusations and they
pertained to sexual misconduct, albeit of a different nature.
Furthermore, one of these two strikers accused another
nonstriking employee, whose first wife had died of a cere-
bral disease and whose second wife was seriously ill at the
time, of "killing [his] second wife." Id. at 718. Despite the
significant nature of these accusations and the fact they
had occurred on separate occasions, the Board agreed that
these comments were not so serious as to deprive the strik-
ers of their right to reinstatement.' 7
A similar result appears to be dictated in the instant
case-particularly under the circumstances that Shilling
had been a victim of Respondent's unlawfully motivated
discharges on October 7; Respondent had created the con-
fusion that had existed on October 24 by evading its obli-
gation to reinstate two strikers, and Shilling's comment was
but a one-time remark which, so far as the record discloses,
did not, in fact, injure Mullens' reputation with those who
heard it. Therefore, I find that, at best, this is one of those
situations where an employee has "arguably exceeded the
bounds of lawful conduct . . . in a 'moment of animal
exuberance," " but which are not "so flagrant or egregious
as to require subordination of the employee's protected
rights in order to vindicate the broader interests of society
7 One of them was denied reinstatement, but not because of his com-
ments Rather. his denial of reinstatement was based upon other conduct
which had created a safet hazard.
BARTENDERS LOCAL 19
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a whole." W. C. McQuaide, Inc., 220 NLRB 593, 594
(1975), enfd. as modified 552 F.2d 519 (3d Cir. 1977).
The second aspect of Respondent's argument attributing
misconduct to the four discriminatees involves their non-
verbal conduct in the San Jose facility on October 24.
While in the office, Arvieson and Albanoski had sat at
desks, sometimes moving to a desk immediately after Bau-
tista or Souza had risen from it. Arvieson had punched up
dues for a member, using office equipment. This was the
sum of their activities while in the office.' There was no
violence. They did not threaten to engage in violence. They
did not significantly interfere with the normal operations
of the employees who were working in the office, and there
is no evidence that Mullens, Bautista, and Souza had been
unable to perform their assigned duties. At best, Arvieson
and Albanoski's horseplay constituted no more than an
inconvenience. Furthermore, this had been Arvieson's and
Albanoski's normal work area. As Mullens acknowledged,
they had not been asked to leave. To the contrary, it ap-
pears that they were waiting there for Marolda, who Davis
had promised would be there shortly to speak with them
about their return to work and whom Mullens had at-
tempted repeatedly to telephone-only to find that
Marolda's telephone line was busy on each occasion.
Therefore, I find that their conduct fell far short of a "sei-
zure" of Respondent's office and, further, that their pres-
ence there, occasioned by Respondent's own evasion of its
obligation to reinstate them, did not constitute misconduct.
Respondent also complains of the picketing inside its
building. However, the only conduct which can even be
construed as being picketing inside the San Jose facility
was based upon the testimony that the group had
"trooped" from the back of the building to the front and
out the front door. It had been a momentary thing. There is
no evidence that it had interfered with Respondent's oper-
ations. It hardly had been a takeover of the San Jose facil-
ity. Therefore, I find that it did not operate to bar Arvie-
son, Albanoski, Adcock, and Sflilling from reinstatement.
Finally, Respondent complains of the legends on the
picket signs. In fashioning its argument on this aspect of
the case, it relies upon two doctrines as the basis for argu-
ing that they transcended the ambit of protected activity.
First, it points to the doctrine of N. L. R. B. v. Local Union
No. 1229, International Brotherhood of Electrical Workers
[Jefferson Standard Broadcasting Company], 346 U.S. 464
(1953), and argues that these legends constituted a dispar-
agement of Marolda's and Davis' reputations. Yet the
Court's language in that case was not so broad as to de-
prive of protection any negative statements regarding em-
ployers. Rather, its concern had been with "a vitriolic at-
tack on the quality of the company's television
broadcasts." Id. at 468. In finding that this activity had
been unprotected, the Court reasoned that the employees
18 One or both of them ma) have accompanied Krueger when the latter
made a second visit to the office later that morning and had taken the office
employees' coffee pot to distribute coffee to the other demonstrators. How-
ever, any adverse effect which this action may have had upon Arvieson and
Albanoski's right to reinstatement is quickly dissipated by the undisputed
testimony that earlier that morning Juanita Tomlinson had done exactly the
same thing. Tomlinson is a member of Respondent's own executive board
had "diverted attention from the labor controversy . . . [by
attacking] public policies of the company which had no
discernible relation to that controversy." Id. at 476. In
short, the employees there had disparaged the employer's
product in a manner unrelated to the substance of the la-
bor controversy and in an effort to use such pressure to
obtain the ends desired by the employees. See Firehouse
Restaurant, 220 NLRB 818, fn. 1 (1975).
These two factors, disparagement of the employer's
product and lack of relationship to the labor controversy,
are both absent here. Respondent's "product" is its repre-
sentation and negotiation of collective-bargaining agree-
mentson behalf of employees. By no stretch of the imagi-
nation can it be said that the picket sign legends
disparaged the abilities of Marolda, Davis, or of the then-
current complement of office employees to discharge these
services. The signs did call them names, but, as found
above, such name-calling is not unprotected, particularly
where it is done by unfair labor practice strikers. Further,
in deprecating Marolda and the employees then working in
the office, the signs related directly to the labor controver-
sy then in progress. For it had been Marolda's failure to
replace them with Arvieson and Albanoski that had led to
the picketing. Consequently, the Jefferson Standard doc-
trine cannot be relied upon as a basis for barring reinstate-
ment of the four discriminatees. To deprive them of rein-
statement for the use of these descriptions would be to
permit every employer to bar unlawfully discharged and
striking employees from reinstatement for use of the slight-
est depreciatory reference-a result hardly consistent with
the purposes of the Act.
Respondent's second theory is based upon the Board's
decisions in Retail Clerks Union, Local 770, Retail Clerks
International Association, AFL-CIO, 208 NLRB 356
(1974), and Butcher's Union Local 115, affiliated with the
Amalgamated Meat Cutters and Butcher Workmen of North
America, 209 NLRB 806 (1974), wherein the Board held
that there was "no protected right to engage in activities
designed solely for the purpose of influencing or producing
changes in the management hierarchy." Retail Clerks
Union, Local 770, supra at 357; Butchers Union Local 115,
supra at fn. . However, there the Board carefully pointed
out that "these employees were not engaged in organizing
activities for the purpose of seeking a separate and inde-
pendent representative." Retail Clerks Union, Local 770,
208 NLRB at 357. By contract, of course, that is precisely
what had been occurring in the instant case:-it had been
the efforts of the office employees to obtain representation
by Local 29, as found above, that had led to the dispute
which had generated the signs used during the picketing.
Moreover, there is no evidence that by picketing on Octo-
ber 24 to 26, the employees had even an object, much less
the sole object, of toppling Marolda as Respondent's presi-
dent. Rather, they were protesting the unfair labor prac-
tices of Respondent, for which Marolda was responsible,
and Respondent has failed to show that correction of these
unfair labor practices would not have satisfied the discrim-
inatees and terminated the picketing.
Therefore, I find that the events of October 24 to 26 were
not so egregious as to bar Adcock, Shilling, Arvieson, and
Albanoski from entitlement to reinstatement.
BARTENDERS LOCAL 19 253
E. The Bargaining Obligation
Respondent does not quarrel with the allegation that all
office clerical employees employed by it at its 1121 E. San-
ta Clara, San Jose, California, facility are a unit appropri-
ate for collective bargaining within the meaning of Section
9(b) of the Act. By October 7, Local 29 had secured signed
authorization cards from all three employees in that unit. It
was on that date that Respondent had commenced its own
campaign to defeat Local 29's organizing campaign by un-
lawfully terminating two of the employees in that unit, as
well as by terminating another employee in an effort to
fortify its defense to the terminations of the unit employ-
ees. Since they are the types of violation that strike at the
very heart of the Act, unlawful terminations are sufficient
to warrant imposition of a remedial bargaining order. See
Twilight Haven, Incorporated, 235 NLRB 1337, 1345 (1978),
and cases cited therein. Moreover, on October 21, Respon-
dent acknowledged that it had received Main's mailgram
requesting a "signed trade union agreement." Such a re-
quest, of course, contains an implicit demand for recogni-
tion. Therefore, I find that Respondent's bargaining obli-
gation arose as of October 7 and that, by refusing to
recognize Local 29 as the representative of the office cleri-
cal employees on and after October 21, Respondent vio-
lated Section 8(aX5) and (1) of the Act. Twilight Haven,
Incorporated, supra at 1345.
In view of the foregoing conclusions, I deny Respon-
dent's motion to dismiss the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occurring
in connection with its operations described in section I,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and
tend to lead, and have led, to labor disputes burdening and
obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Local 19, Hotel, Motel, Restaurant Employees and
Bartenders Union, AFL-CIO is an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Office and Professional Employees Union Local 29 is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By photographing picketing employees without a val-
id reason, Local 19 Hotel, Motel, Restaurant Employees
and Bartenders Union, AFL-CIO, has violated Section
8(a)(1) of the Act.
4. By discriminatorily discharging and refusing to rein-
state Robert Shilling, Esther Adcock, and Carol Chace,
and by refusing to reinstate unfair labor practice strikers
JoAnne Arvieson and Lillian Albanoski upon their uncon-
ditional application to return to work, Local 19 Hotel, Mo-
tel, Restaurant Employees and Bartenders Union, AFL-
CIO, has violated Section 8(a)(3) and (1) of the Act.
5. A unit appropriate for collective bargaining is:
All office clerical employees employed by Local 19
Hotel, Motel, Restaurant Employees and Bartenders
Union, AFL-CIO at 1121 E. Santa Clara, San Jose,
California; excluding all other employees, guards, and
supervisors within the meaning of the Act.
6. At all times material since October 6, 1977, Office
and Professional Employees Union Local 29 has been the
exclusive collective-bargaining representative of the em-
ployees in the above-described unit within the meaning of
Section 9(a) of the Act.
7. By failing and refusing on and after October 21, 1977,
to recognize and bargain with Office and Professional Em-
ployees Union Local 29 as the representative of the em-
ployees in the above-described unit, Local 19 Hotel, Motel,
Restaurant Employees and Bartenders Union, AFL-CIO,
has violated Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Local 19 Hotel, Motel, Restaurant
Employees and Bartenders Union, AFL-CIO, has engaged
in certain unfair labor practices, I shall recommend that it
be ordered to cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
Local 19 Hotel, Motel, Restaurant Employees and Bar-
tenders Union, AFL-CIO, will be required to destroy any
of the pictures taken by Davis during the strike which are
still in its possession. Also, it will be required to offer
Robert Shilling, Esther Adcock, JoAnne Arvieson, and Lil-
lian Albanoski immediate reinstatement to their former po-
sitions of employment or, if those positions no longer exist,
to substantially equivalent positions without prejudice to
their seniority or other rights and privileges, dismissing, if
necessary, anyone who may have been assigned or hired to
perform the work which Shilling and Adcock had been
performing prior to their termination on October 7, 1977,
and which Arvieson and Albanoski had been performing
prior to October 12, 1977, when they had commenced re-
specting the picket line protesting the unfair labor practices
of Local 19 Hotel, Motel, Restaurant Employees and Bar-
tenders Union, AFL-CIO. Additionally, Local 19 Hotel,
Motel, Restaurant Employees and Bartenders Union,
AFL-CIO, will be required to make Shilling, Adcock, and
Carol Chace whole for any loss of earnings they may have
suffered by reason of their unlawful termination on Octo-
ber 7, 1977, and to make whole Arvieson and Albanoski
for any loss of pay they may have suffered by reason of
Local 19, Hotel, Motel, Restaurant Employees and Bar-
tenders Union, AFL-CIO's refusal to reinstate them upon
their unconditional application to return to work on Octo-
ber 24, 1977. Backpay is to be computed on a quarterly
basis, making deductions for interim earnings, and with
interest to be paid on the amounts owing and to be com-
puted in the manner prescribed in F. W. Woolworth Com-
N See Larand Leisurehes, Inc., supra
BARTENDERS LOCAL 19
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pant, 90 NLRB 289 (1950), and Florida Steel Corporation
231 NLRB 651 (1977); see generally Isis Plumbing & Heat-
ing Co.. 139 NLRB 716 (1962)., enforcement denied on dif-
ferent grounds 322 F.2d 913 (9th Cir. 1963).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 21
Respondent Local 19 Hotel. Motel. Restaurant Employ-
ees and Bartenders Union. AFL CIO, its officers, agents,
and representatives, shall:
I. Cease and desist from:
(a) Taking pictures of employees who are engaged in
picketing or other protected concerted activities.
(b) Discharging or otherwise discriminating against em-
ployees with regard to their hire or tenure of employment
or any term or condition of employment for engaging in
activities on behalf of a labor organization or for engaging
in activity protected by Section 7 of the Act.
(c) Refusing to reinstate unfair labor practice strikers
upon their unconditional applications to return to work or
refusing to reinstate any strikers who have not been perma-
nently replaced by the time of their unconditional applica-
tions to return to work.
(d) Refusing to recognize or bargain collectively with
Office and Professional Employees Union Local 29, as the
exclusive bargaining representative of the employees in the
following appropriate bargaining unit:
All office clerical employees employed by Local 19
Hotel, Motel, Restaurant Employees and Bartenders
Union, AFL-CIO, at 1121 E. Santa Clara, San Jose,
California: excluding all other employees, guards, and
supervisors within the meaning of the Act.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Robert Shilling, Esther Adcock. JoAnne Ar-
21. In the event no exceptions are filed as provided hb Sec 12.46 of he
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recolmmended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations. he adopted by he Board and heconime
its findings, conclusions. and Order. anti all oiblections thereto shall he
deemed waived for all purposes.
vieson, and Lillian Albanoski immediate and full reinstate-
ment to their former positions of employment, dismissing,
if necessary, anyone who may have been hired or assigned
to perform the work that Shilling and Adcock had been
performing prior to October 7, 1977, and that Arvieson and
Albanoski had been performing prior to October 12, 1977,
or, if their former positions no longer exist. to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them, and Carol
Chace for the period October 7, 1977, to February 27,
1978, whole for any loss of pay they may have suffered as
a result of the discrimination in the manner set forth above
in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents all payroll and other records necessary
to compute the backpay and reinstatement rights set forth
in The Remedy section of this Decision.
(c) Destroy any pictures of picketing employees taken
between October 12 and 26, 1977.
(d) Upon request, recognize and bargain, effective as of
October 21, 1977, with Office and Professional Employees
Union Local 29, as the collective-bargaining representative
of the employees in the above-described appropriate unit.
respecting rates of pay, wages, hours of employment, or
other terms and conditions of employment and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
(e) Post at its San Jose, California, facility copies of the
attached notice marked "Appendix." 21 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 32, after being duly signed by Local 19 Hotel, Motel,
Restaurant Employees and Bartenders Union, AFL CIO's
authorized representative, shall be posted immediately by
it upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Local 19, Hotel,
Motel, Restaurant Employees and Bartenders Union,
AFL CIO, to insure that said notices are not altered, de-
faced, or covered by any other material.
(f) Notify' the Regional Director for Region 32, in writ-
ing, within 20 days from the date of this Order, what steps
Local 19 Hotel, Motel, Restaurant Employees and Bar-
tenders Union, AFL-CIO, has taken to comply herewith.
lIn the eent that this Order is enforced h a judgment of a IUnited
States ('ourt of Appeals. the words in the notice reading "Posted by Order
of the National .ahbor Relalions Board" shall read Posted Pursuant to a
Judgment of the United States (Court of Appeals Einforcing an Order of the
National abor Relations Board.