Local 343, Hotel And Restaurantt Employees

National Labor Relations Board - Board Decisions

Aug 31, 1972

198 N.L.R.B. 1172 (N.L.R.B. 1972)

1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 343 , Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO and
Kutsher's Country Club Corp . Cases 3-CC-615
and 3-CP-188
August 31, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On April 28, 1972, Trial Examiner Sidney Sherman
issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
has decided to affirm the Trial Examiner's rulings,
findings,' and conclusions2 and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that Respondent, Local 343, Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO, its officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's
Order.
i The Trial Examiner inadvertently omitted the following introductory
facts which we consider relevant herein The record shows that the charge in
Case 3-CC-615 was filed on June I, 1971 , and a complaint issued on June
16, 1971 Thereafter, the Regional Director for Region 3 approved a
settlement agreement executed by Respondent , and withdrew the complaint
contingent upon the approval of the General Counsel of the Board in the
event the Charging Party ( 1) refused to enter into the settlement agreement
and (2) filed a timely request for review of the Regional Director's approval
The Charging Party did , in fact , refuse to enter into the settlement
agreement and did file a timely request for review of the Regional Director's
approval of that agreement Thereafter, on October 29, 1971, the General
Counsel of the Board sustained the Charging Party 's appeal and remanded
Case 3-CC-615 to the Regional Director for appropriate further action
Since a charge in Case 3-CP-188 had already been filed on August 25, 1971,
and a complaint had issued on October 22, 1971 , and since the parties
therein were the same parties involved in Case 3-CC-615, thereafter on
November 22, 1971, the Regional Director for Region 3 reissued the
complaint in Case 3-CC-615 , and consolidated Cases 3-CC-615 and
3-CP-188
We also note the Trial Examiner 's inadvertent statement that , at the time
the picketing in Case 3-CP-188 began , a "second" election had been
scheduled The record reveals that in fact this was to be the third election
held among Charging Party's employees
2 We are in agreement with the Trial Examiner 's finding that Respon-
dent violated Section 8 (b)(7)(B) of the Act by its picketing on August 31
through September 7, 1971, since the uncontroverted evidence reveals that
the picketing , in fact, had as an object an organizational or recognitional
purpose , and was conducted within I year of a valid election. However, we
need not pass on that portion of the Trial Examiner 's Decision in which he
alternatively concludes that even if the sole object of Respondent's
picketing was to force the Charging Party to permit free communication
between its employees and Respondent , such picketing would still be a
violation of 8(b)(7)(B ) since its ultimate aim would still be organizational in
nature
We also agree with the Trial Examiner's finding that Respondent violated
Section 8(b)(4)(B) of the Act by its picketing in May 1971
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY SHERMAN , Trial Examiner: The initial charge'
herein was served on June 3, 1971,2 the consolidated
complaint issued on November 22 and the case was heard
on March 9 , 1972. After the hearing a brief was filed by
Respondent. The issues litigated related to alleged viola-
tions of Section 8(b)(4)(i) and (ii)(B) and 8(b)(7)(B) of the
Act.
Upon the entire record,3 including observation of the
witnesses ' demeanor , the following findings and recom-
mendations are made:
1. JURISDICTION
Kutsher's Country Club Corp., hereinafter sometimes
called Kutsher's, is a corporation under the law of New
York State, and operates a resort hotel at Monticello, New
York . During the year preceding the issuance of the
complaint, Kutsher's had gross revenues in excess of
$500,000, purchased goods directly from out-of-State
points of a value in excess of $50,000, and 75 percent of the
guests at its hotel resided there for periods of less than 30
continuous days. Kutsher's is an employer engaged in
commerce within the meaning of the Act.
Ii. THE RESPONDENT
Local 454, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, herein called
Respondent , is a labor organization under the Act.
III. THE MERITS
The pleadings raise the following issues:
1. Whether Respondent violated Section 8(b)(4)(i) and
(ii)(B) by picketing between May 24 and June 1, at an
entrance to Kutsher 's premises reserved for the use of
employees of neutral employers?
2. Whether Respondent violated Section 8(b)(7)(B)
between August 31 and September 7, by picketing
Respondent's premises with an organizational or recogni-
tional object?
i The Charging Party is also designated in the pleadings as "Kutsher's
Hotel and Country Club, Inc" After the hearing the parties stipulated
that the name appearing in the caption is the correct one and the General
Counsel moved to correct the pleadings and formal papers to reflect this
Such motion is hereby granted
2 All dates herein are in 1971 , unless otherwise shown
{ For corrections of the transcript and certain evidentiary rulings, see the
order of April 11, 1972
198 NLRB No. 178
LOCAL 343, HOTEL AND RESTAURANT EMPLOYEES 1173
A. Sequence of Events
Kutsher's operates a resort hotel in the Catskill Moun-
tains. A campaign to organize its employees was launched
by Respondent in 1967, and there is a long and complicat-
ed history of litigation arising from that campaign and the
resistance thereto by Kutsher's. The principal issue in all
the proceedings heretofore held was whether Kutsher's
interfered with various elections held on Respondent's
petition and whether Kutsher's violated Section 8(a)(1) of
the Act, by unduly limiting Respondent's access to
employees for organizational purposes. The final outcome
of those proceedings was that on June 2, 1970, the court of
appeals refused to enforce a Board order finding a
violation of Section 8(a)(1) by Kutsher's4 and that a
second election, held on December 12, 1970,5 and lost by
Respondent, was ruled valid by the Board on August 31, a
certification of the results of that election being issued on
that dates
In the meantime, on May 24, Respondent began
picketing the premises of Kutsher's, which picketing did
not entirely cease until September 7, when a state court
issued a restraining order.
B. Discussion
1. The CC case
This case involves an alleged violation of the Act's
prohibition of "secondary boycotts" and relates only to the
picketing conducted for a period of about 5 days beginning
on May 24.
On the basis of the uncontradicted testimony in the
record, it is found that during the month of May Kutsher's
was constructing an addition to its main building; that
various building trades employees were engaged in that
project; that those employees had been hired by various
individuals and corporations retained by Kutsher's to aid
in the construction work 7; that on May 20, having learned
that Respondent was about to picket its premises,
Kutsher's posted a sign at a little-used entrance to its
grounds, which sign announced that such entrance was
reserved for the exclusive use of the various categories of
building trades employees of the individuals and corpora-
tions referred to above and ordered all employees of
Kutsher's to use other entrances; that such "reserved"
entrance was thereafter used only by the building trades
employees and the employees of firms delivering supplies
at the jobsite; and that for about 5 days, beginning on May
24, Respondent's pickets patrolled the foregoing reserved
entrance, as well as the main entrance, with signs bearing
the following legend over Respondent's name:
Protest Against Unfair Labor Practices of
KUTSHER Patronize Union Hotels!
Respondent concededly had no dispute with any of the
individuals or corporations involved herein other than
Kutsher's.
The General Counsel contends that the picketing at the
reserved entrance violated Section 8(b)(4)(i) and (ii)(B)
because of its impact on the building trades employees
using that entrance, who, the General Counsel asserts, were
employees of neutral employers, and on the employees of
firms delivering supplies at the job to such employers. At
the hearing, Respondent took the position that the
foregoing building trades employees were in fact employ-
ees of Kutsher's.8 On that point, Milton Kutsher, the
president of Kutsher's, testified that the proposed addition
to the main building involved an expenditure of $900,000;
that, since he had a longstanding business relationship with
those engaged by him to assist in the construction, he
dispensed with any formal, written contract, relying only
on an oral agreement sealed by a handshake; that such oral
agreement was that, in accordance with past practice, they
would perform the services of their trade, for which they
would be compensated on the basis of time and materials;
that, pursuant to this oral arrangement, they billed him for
labor on the basis of an hourly rate, which was higher than
that actually paid by them to their employees, and the
amounts billed by them for materials represented the cost
of materials to them plus 10 percent; that the witness was
free to remove them from the job summarily, if he was not
satisfied with their work; that the operations of the various
crafts on the job were "overseen" and coordinated by R. A.
Morey Builders, Inc., a corporation, which reported to
him; that the glass was supplied and installed by Sullivan
County Glass Company, a corporation; and that the
plumbing, painting, electncal, and roofing work was
performed by individuals, who brought employees to the
job and paid them out of their own funds.
It is apparent from the foregoing that those retained by
Kutsher's to perform the construction work depended for
their compensation on the difference between (1) the
moneys they received from kutsher's, and (2) what they
paid out for labor and materials. There was no evidence
that it was agreed that they or their employees would be
subject to the control of Kutsher's with regard to the
manner of the performance of their work. On the contrary,
so far as the record shows, the only agreement between
Kutsher's and those engaged by it pertained to the nature
of the services to be performed by them and the manner of
computing their compensation. While M. Kutsher asserted
that he reserved the right to terminate any such agreement,
if he was not satisfied with the performance thereunder,
there is insufficient basis in the record for inferring that he
meant by this anything more than that he felt free to do so,
if he was dissatisfied with the results being achieved.9
4 N L R B v Kutsher's Hotel & Country Club, Inc, 427 F 2d 200 (C A 2),
denying enforcement of 175 NLRB 1114
5 A prior election held in February 1970 had been set aside by the Board
on the Union's objections
6 192 NLRB No 154.
7 The names of such individuals and corporations are set forth in the
complaint in the CC case and in the remedial order below
s Although this contention was not renewed in Respondent 's brief, it is
not clear that it has been entirely abandoned
9 The thrust of M Kutsher' s testimony appears to be that his primary
concern was whether the progress being made by a particular craftsman and
his employees was commensurate with the amount being paid him for labor
(Continued)
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 2(3) of the Act excludes from the definition of
the term "employee" as there used "any individual having
the status of an independent contractor." The legislative
history shows that the intent of Congress was to exclude
persons who, unlike those who "work for wages or salaries
under direct supervision . . . undertake to do a job for a
price, decide how the work will be done, usually hire others
to do the work, and depend for their income not upon
wages, but upon the difference between what they pay for
goods, materials and labor and what they receive for the
end result, that is upon profits." 10 It is true that here the
agreed-upon "price" was not a lump sum fixed in advance
but was based on actual time and materials. However,
there is nothing in the foregoing legislative history to
preclude the construction of the term "price" as used
therein as embracing one based on time and materials. In
both cases the individuals furnishing the services depend
for their income on the difference between what they pay
for goods, materials, and labor and what they receive.
Moreover, in implementing the intent of Congress, as
expressed above, the Board has consistently held that an
independent contractor status exists where the one for
whom the services are to be performed reserves the right to
control only the end to be achieved and not the means to
be used in reaching that end.ll Here, it has been found that
Kutsher's retained control only over the results being
achieved on thejob and not over the means used to achieve
those results. Thus, while Kutsher's was free to terminate
the plumbing contract, for example, if the installation of
plumbing fixtures did not progress rapidly enough to suit
Kutsher's, there was no evidence, nor any reason to
suppose, that it reserved the right to dictate to the plumber,
for example, how many men he should employ on the job,
what hours they should work, or what equipment they
should use.
Accordingly, no merit is found in Respondent's allega-
tion that the individuals and corporations who were
engaged by Kutsher's to perform the instant construction
work, as well as their employees, were in fact employees of
Kutsher's. It is found that such individuals and corpora-
tions were independent contractors within the meaning of
the Act. and that they were neutral employers in relation to
the labor dispute between Respondent and Kutsher's. It
follows that they and their employees were protected by
Section 8(b)(4) of the Act from the pressures proscribed
therein.
There was no dispute that between May 24 and 29,
Respondent's pickets patrolled the entrance reserved for
building trades employees with the picket signs described
above and that such employees, as well as employees of
firms supplying materials to the contractors on the job,
passed through that entrance during such picketing.
In its brief, Respondent advances the further contention
that the picketing at the reserved entrance conformed with
his employees was commensurate with the amount being paid him for labor
and materials
10 H kept 245, 80th Cong, 1st Sess 18 (1947) H Conf Rept 510, 80th
Cong, IstSess 33 (1947)
11 See L C Sinor, 168 NLRB 467, Frank Ahoto Fish Co, 129 NLRB27
12 Moore Dry Dock Company, 92 NLRB 547
13 Local 761, International Union of Electrical, Radio and Machine
the rules laid down by the Board in the Moore Dry Dock
case12 for common situs picketing. However, under those
rules, as supplemented by the decision of the Supreme
Court in the General Electric case,13 picketing at an
entrance to the premises of a primary employer, which is
reserved for the use of employees of neutral employers,
constitutes secondary activity, if all of the following
conditions are met:
(1) The reserved entrance is marked and set apart from
other entrances.
(2) The work performed by those using that entrance is
unrelated to the normal operations of the primary
employer.
(3) Such work is of a kind that would not, if done when
the primary employer is engaged in his normal
operations, require curtailing those operations.
Since it is not disputed, and it is abundantly clear from
the record, that all those conditions were met here, it is
found that the instant picketing did not conform to the
limitations imposed by the Board on common-situs
picketing.
Respondent contends, finally, that there is no evidence
that during the picketing under consideration any employ-
ee refused to enter the premises of Kutsher's or was asked
not to enter such premises. However, it has long been
settled that picketing, in itself, constitutes inducement not
to perform services within the meaning of Section 8(b)(4)
and there is no need to show that such inducement was
accompanied by other means of persuasion,14 nor is there
any requirement that such inducement be effective.15
It is, accordingly, found that the picketing at the reserved
entrance constituted inducement of employees of neutral
employers not to perform services for their employers and
that an object of such picketing was to force the neutral
contractors at the jobsite to cease doing business with
Kutsher's, and to force their suppliers to cease doing
business with such contractors. It follows that by the
foregoing picketing Respondent violated Section 8(b)(4)(i)
and (ii)(B) of the Act.
2. The CP case
The complaint alleges that Respondent violated Section
8(b)(7)(B) of the Act by picketing at Kutsher's premises
from August 31 to September 7, for recognitional and
organizational purposes. That subsection forbids any
picketing for such purposes "where within the preceding
twelve months a valid election under Section 9(c) of the
Act has been conducted," and the Board has held that the
foregoing 12-month period begins to run from the date that
it has certified the results of the election rather than from
the date of the balloting.is
On August 31, as already related, the Board certified the
results of the election held on December 12, 1970, on
Respondent's petition, and it is not disputed that Respon-
Workers, A FL-CIO [General Electric Co I v N L R B, 366 U S 667,
remanding 123 NLRB 1547, supp dec on remand, 138 NLRB 342
14 Wadsworth Building Company, Inc, 81 NLRB 802, 815, International
Brotherhood of Electrical Workers v N L. R B, 341 U S 694.
15 E g, Iowa Beef Packers, Inc, 185 NLRB No 121, and cases there cited
1b Irvin's, Inc, 134 N LRB 686, 689-690
LOCAL 343, HOTEL AND RESTAURANT EMPLOYEES
dent picketed the premises of Kutsher's for about a week
after August 31, with signs which carried over Respon-
dent's name the legend "Unfair." There was no denial,
moreover, that such picketing began a month or two before
August 31, that on unspecified dates during the course of
such picketing the pickets made oral appeals to employees
of Kutsher's to join Respondent and handed out literature,
which, after describing the advantages of union representa-
tion for employees of the resort hotels in the Catskill area,
in effect urged a boycott of Kutsher's by all union
members because of its alleged unfair labor practices in
denying to Respondent access to its employees. Nor was
there any denial that employees of Kutsher's were required
to, and did, cross the foregoing picket line in going to and
from work.
Respondent's only defense is that the object of the
picketing was not recognitional or organizational but
merely to protest Kutsher's alleged unfair labor practices
in denying access to its employees.17 This would seem to
imply that the picketing was designed only to exert
pressure on Kutsher's to grant Respondent free access to
its employees. However, there is no evidence that Kutsher's
was ever advised that this was the sole object of the
picketing or that Respondent was no longer seeking
immediate recognition. At the time the picketing began the
Respondent's representation petition was still pending and
a second election had already been scheduled. There was
nothing in the cryptic legend on the picket signs to suggest
in what respect Kutsher's was alleged to be "unfair,"
whether it was for refusing to recognize the Respondent or
for some other reason. Moreover, it has already been found
that during the course of the picketing under consideration
the pickets made oral, organizational appeals to Kutsher's
employees and distributed to them literature which, inter
alia, stressed the benefits of union representation. While it
is not clear whether those actions occurred before or after
August 31, the precise date is immaterial, for, even if they
occurred before August 31, they would establish that the
original purpose of the picketing was organizational and
the burden would shift to Respondent to show any change
in that purpose. No persuasive evidence of any such
change was adduced.
Finally, even if one accepts Respondent's thesis that the
sole object of the picketing was to force Kutsher's to
permit free communication between its employees and
Respondent, it cannot be said that such an object had no
relation to the ultimate aim of organizing Kursher's
employees. Respondent's sole apparent reason for seeking
access to Kutsher's employees was to convince them of the
advantages of representation by Respondent. It is true that
the Act in terms proscribes only action, the goal of which is
organization (or recognition), and that the removal of
obstacles to communication with the employees of Kutsh-
er's was only an intermediate step toward that goal.
However, the legislative history of the Act shows that the
purpose of Congress was to grant employers and employ-
17 Such denial of access was the subject not only of the Board and court
proceedings discussed above but also of a new charge filed by Respondent
on December 4, 1970, and dismissed on September 24, 1971
18 See Irvin, Inc, 134 NLRB 686. 691
19 In the event no exceptions are filed as provided by Sec 102 46 of the
1175
ees a respite for a year after a valid election from the
"harassment" of organizational picketing,18 and that this
purpose would be defeated, if, at any time after losing an
election, a union were free to picket for some purpose
related to the communication of its message to the
employees. Thus, a union might decide to picket in order to
compel the employer to furnish it with a current list of
employee names and addresses, to permit it to make
captive audience speeches to employees, or to post notices
on the employer's bulletin boards. To hold that such
picketing was not proscribed because its immediate object
was not organizational would open the door to the
subversion of the intent of Congress in enacting Section
8(b)(7)(B).
It is concluded that, by the picketing conducted after
August 31, Respondent violated Section 8(b)(7)(B).
IV. THE REMEDY
It having been found that Respondent has violated
Section 8(b)(4) and 8(b)(7)(C), it will be recommended that
it be ordered to cease and desist therefrom and take
appropriate, affirmative action.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(b)(4)(i) and (ii)(B) by
the picketing conducted by it from May 24 to 29, 1971.
2. Respondent violated Section 8(b)(7)(B) by the
picketing conducted by it after August 31, 1971.
3. The foregoing unfair labor practices affect com-
merce within the meaning of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is issued the following recommended: 19
ORDER
Respondent, Local 343, Hotel and Restaurant Employ-
ees and Bartenders International Union, AFL-CIO, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Inducing or encouraging any individuals employed
by R. A. Morey Builders, Inc., Bons Shalman, Meyer
Schachnovsky, M. Finkler, M. Perlmutter, Sullivan County
Glass Company, or by any other person engaged in
commerce or an industry affecting commerce, to engage in
a refusal in the course of their employment to perform any
services, with an object of forcing the foregoing employers
or such other person to cease doing business with Kutsher's
Country Club Corp.
(b) Coercing or restraining the foregoing employers or
such other person with an object of forcing them to cease
doing business with Kutsher's Country Club Corp.
(c) Picketing, for a period of 1 year from September 7,
1971, at the premises of Kutsher's Country Club Corp.,
with an object of forcing it to recognize or bargain
collectively with Respondent, or of forcing the employees
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall , as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Kutsher's to accept or select Respondent as their
bargaining agent.
(d) Picketing Kutsher's for any of the aforementioned
objects, for a period of 12 months after losing a valid
election held under Section 9(c) of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of the
notice attached hereto marked "Appendix." 20 Copies of
said notice , on forms provided by the Regional Director
for Region 3, shall, after being duly signed by an
authorized representative, be posted by said Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
said Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of receipt of this Order, what
steps have been taken to comply herewith.21
20 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals . the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
21 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 3, in writing , within 20 days from
the date of this Order , what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An agency of the United States Government
WE WILL NOT induce or encourage any individuals
employed by R.A. Morey, Builders, Inc., Boris Shal-
man, Meyer Schachnovsky, M. F ►nkler, M. Perlmutter,
Sullivan County Glass Company or by any other
person engaged in commerce or an industry affecting
commerce to engage in a refusal in the course of their
employment to perform any services , with an object of
forcing the foregoing employers or such other person to
cease doing business with Kutsher 's Country Club
Corp.
WE WILL NOT coerce or restrain the foregoing
employers or such other person with an object of
forcing them to cease doing business with Kutsher's
Country Club Corp.
WE WILL NOT, for a period of one year after
September 7, 1971, picket the premises of Kutsher's
Country Club Corp. with an object of forcing it to
recognize or bargain with us, or of forcing the
employees of Kutsher's to accept or select us as their
bargaining agent.
WE WILL NOT picket Kutsher 's for recognition or to
force its employees to select us as their bargaining
agent during the period of 12 months after losing a
valid election held among Kutsher 's employees.
Dated By
LOCAL 343, HOTEL AND
RESTAURANT EMPLOYEES
AND BARTENDERS
INTERNATIONAL UNION,
AFL-CIO
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office 9th
Floor , Federal Building , 111 W. Huron Street , Buffalo,
New York 14202, Telephone 716-842-3100.