Local Joint Executive Board

National Labor Relations Board - Board Decisions

Apr 30, 1970

182 N.L.R.B. 250 (N.L.R.B. 1970)

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Joint Executive Board of Las Vegas , Nevada, Namely
Culinary Workers, Local 226 , and Bartenders Union,
Local 165 , Affiliated with Hotel , Restaurant & Barten-
ders International Union , AFL-CIO, and Custom Cater-
ing, Inc ., d/b/a Blue Onion . Case 31-CP-65
April 30, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
Upon a charge filed by the Charging Party, Custom
Catering, Inc., d/b/a Blue Onion, the Company, on
July 7, 1969, the General Counsel of the National Labor
Relations Board by the Regional Director for Region
31 issued a Complaint and Notice of Hearing, dated
August 6, 1969, against the Respondents, Local Joint
Executive Board of Las Vegas, Nevada, namely Culinary
Workers, Local 226, and Bartenders Union, Local 165,
affiliated with Hotel, Restaurant & Bartenders Interna-
tional Union, AFL-CIO. The complaint alleges in sub-
stance that the Respondents engaged and are engaging
in unfair labor practices within the meaning of Section
8(b)(7)(B) of the National Labor Relations Act, as amend-
ed. In its duly filed answer, the Respondents admit
certain allegations of the complaint, deny all unfair
labor practice allegations, and set up certain affirmative
defenses.
On October 7, 1969, the parties filed a motion with
the Board to transfer the proceedings to the Board.
In that motion the parties agreed in effect that the
formal papers filed in this proceeding and a Stipulation
of Facts, together with exhibits attached thereto, would
constitute the entire record in the case and agreed that
no oral testimony was necessary or desired. They waived
their right to a hearing before a Trial Examiner, the
making of findings of fact and conclusions of law by
a Trial Examiner, and the issuance of a Trial Examiner's
Decision and Recommended Order. The parties reserved
the right to file briefs.
The Board granted the motion on October 9. The
General Counsel and Respondents filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has considered the entire record in this
case, including the briefs of the General Counsel and
Respondents, and makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Custom Catering through the Blue Onion is engaged
in a drive-in restaurant operation. Richard Longmire
owns 56 percent of its stock. He also owns 80 percent
of the stock of Hamburger Hollow Restaurant and was
the sole proprietor of Humdinger Restaurant until it
closed on December 4, 1968. All three restaurants are
located in Las Vegas, Nevada. Longmire and Jack J.
Pause], minority stockholder in Blue Onion and Ham-
burger Hollow, were respectively the president and vice
president of those two companies. On the operational
level, Longmire directly managed the three restaurants
including planning menus, purchasing supplies, and han-
dling advertising. He also selected and trained personnel,
signed payroll checks, and established and carried out
labor policy. There has been some interchange of person-
nel among the restaurants. In view of the foregoing,
we find that the Blue Onion, Hamburger Hollow, and
Humdinger Restaurant while in operation constituted
a single employer within the meaning of Section 2(2)
of the Act, at least for purposes of determining the
Board's jurisdiction.'
The record shows that during 1968 purchases of meat
totaling $35,234 were made for the Blue Onion and
Hamburger Hollow from the New York Meat Company
located in the State of Nevada, the latter company,
however, received the products directly from outside
the State of Nevada. Additionally, the record shows
that for a 12-month period ending March 31, 1968,
the combined gross revenue of the three restaurants
exceeded $500,000. Accordingly, we find that the
Employer's operations affect commerce within the mean-
ing of Section 2(6) and (7) of the Act and that it will
effectuate the purposes of the Act to'assert jurisdiction
in this proceeding.'
II. THE LABOR ORGANIZATIONS INVOLVED
The parties agree, and we find, that Local Joint Execu-
tive Board of Las Vegas, Nevada, namely Culinary
Workers, Local 226, and Bartenders Union, Local 165,
affiliated with Hotel, Restaurant & Bartenders Interna-
tional Union, AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Company through its membership in the Southern
Restaurant and Bar Association was a party to a contract
with the Respondents. However, on January 4, 1968,
it sent a letter to the Respondents terminating insofar
as it was concerned the contract as of March 10, 1968-
the renewal date of the contract-and in effect withdraw-
ing the authority of the Association to bargain on its
behalf. On March 26, union representatives met with
company officers around 11:15 a.m. and requested they
agree to the contract being negotiated by the Unions
with the Association. The request was refused and
around 11:40 the Respondents commenced picketing the
Blue Onion with signs reading:
' See Mendenhall Trucking, Inc., 153 NLRB 1276
2 Somerset Manor, Inc , 170 NLRB No 185, Cedar Hills Theatres,
Inc , 168 NLRB 871
182 NLRB No. 40
LOCAL JOINT EXECUTIVE BOARD 251
UNFAIR
BLUE ONION
CULINARY WORKERS UNION 226
AND
BARTENDERS UNION 165
SANCTIONED BY
CENTRAL LABOR COUNCIL
The Unions and Company met later that day, there
was some unsuccessful discussion of contract terms
Near the end of the meeting a company officer asked
how he could get the pickets removed and was told
to sign the contract The picketing continued
On April 25, 1968, the Company filed a petition seeking
to determine if the Respondents were the majority repre
sentatives of its employees3 and on July 17, 1968, the
Regional Director issued his Decision and Direction
of Election 4 An election was held on August 14, 1968
The Unions did not receive a majority of valid votes
cast However, upon objections duly filed by the
Respondents, the Board on March 21, 1969, set aside
the election and directed that a second election be
held ° That election took place on April 24, 1969 The
Respondents received I vote, there were 14 against
and 14 challenged
Again the Respondents filed timely objections The
Regional Director in his Supplemental Decision, Order,
and Certification of Results' found the objections to
be without merit and sustained eight of the challenges
Six of those eight he upheld on the ground that as
the employees had been engaged in an economic strike
since March 26, 1968, or for more than a year prior
to the date of the second election, and had been perma
nently replaced, they were not eligible voters, two he
found ineligible on grounds unrelated to the strike As
the remaining unresolved challenges could not affect
the outcome, the Regional Director certified that no
labor organization had been selected as the employees'
bargaining representative Thereafter, the Respondents
filed a request for review of the Regional Director's
action On June 24, 1969, the request was denied
1969, in compliance with a temporaNy injunction issued
by the United States District Court of Nevada the previ-
ous day
The General Counsel contends, as the complaint alleg-
es, that the picketing after June 2, 1969, when the
Regional Director certified the results of the second
election, violated Section 8(b)(7)(B) of the Act That
section, in short, makes it unlawful for a union to
picket with an organizational or recognitional object
where within the preceding 12 months a valid election
under Section 9(c) of the Act has been held
As outlined above, the Respondents began picketing
when the Company failed to agree to the Association
contract and stated the pickets would be called off
if the Company signed the contract The picketing was
thus clearly in support of Respondents' demands that
the Company sign a contract and, consequently, had
a recognitional objective 3 Furthermore, at all times
the picket signs have remained unchanged, and the
Respondents have never disclaimed an interest in having
the Company sign a contract or in having it otherwise
accord them recognition In fact, they do not contend
that the object of their picketing after the election on
April 24, 1969, is one that takes it outside the proscription
of Section 8(b)(7)(B) Rather, they contend the picketing
was not unlawful because the election was not "valid"
under Section 9(c) of the Act
In support of their position they argue, first, that
certain striking employees were improperly denied the
right to vote, second that the Board was without jurisdic-
tion under the statute and its standards to hold the
election, and, third, that the election proceeding was
a nullity because Respondents were denied the right
to litigate whether or not the Company's alleged doubt
raising a question concerning representation with respect
to the Union's majority status was supported by objec-
tive considerations Each of these arguments had been
raised at some stage of the representation proceeding
and rejected as without merit by the Regional Director,
whose result was affirmed by the Board in denying
Respondents' request for review of the Regional
Director's decisions H
As stated above, the Respondents began picketing
the Blue Onion on March 26, 1968 The picketing contin
ued till June 2, 1969 when the Blue Onion temporarily
closed down, but resumed on July 4, 1969, when the
restaurant reopened It was terminated on August 22,
Case 31-RM-132
The appropriate unit was all employees of the Employer at its
Las Vegas operation excluding office clerical employees professional
employees guards and supervisors as defined in the Act
Custom Catering Inc d/bla Blue Onion 175 NLRB No 3
Issued June 2 1969
On July 10 1969 the Respondents here filed a charge in Case
31-CA-1504 alleging that the Company violated Sec 8(a)(2) of the
Act On July 22 1969 the Regional Director for Region 31 dismissed
the charge for lack of sufficient evidence to support its allegations
The Respondents appealed to the General Counsel The appeal was
denied on August 14 1969
" See Las rence Typographical Union No 570 (Kansas Color Press)
158 NLRB 1332 Hoisting and Portable Engineers Local Union 101
Operating Engineers (Sheri+ ood Construction Co) 140 NLRB 1175
" The jurisdictional and objective considerations issued were reject
ed by the Regional Director in his original Decision and Direction
of Election in Case 31-RM-132 issued July 17 1968 Respondents
Request for Review of that Decision filed July 29 1968 was denied
by the Board on August 2 1968 These two matters were also raised
in the Respondents Request for Review of the Regional Directors
Supplemental Decision issued November 12 1968 dealing with the
challenges and objections to the first election As to those matters
the Board on January 17 1969 denied review of the Regional Director s
rejection of those objections as without merit The issue concerning
the right of certain strikers to vote was rejected as without merit
in the Regional Directors Supplemental Decision of June 2 1969
dealing with the second (April 24 1969) election and was the subject
of the Respondents Request for Review of that Supplemental Decision
In his decision the Regional Director noted inter alia that the ballots
of the striker voters would not be sufficient to affect the results of
the election even if they were counted In any event the request
for review was denied by the Board on June 24 1969
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find it unndcessary to pass on the Regional
Director ' s action in sustaining 6 of the 14 challenges
on the ground that ;they -were cast by ineligible strikers.
As to the two other challenges which he sustained,,
he found the voters ineligible on grounds unrelated
to the strike. We affirmed this action in our June 1969
denial of the Respondents' request for review, and we
reaffirm it now. The remaining 12 challenges are therefore
not determinative , of the results of the election, but
at best would reflect a union loss by a 13-14 vote.
Thus, in view of the foregoing , we find that (1)
throughout its duration , both before and after the April
24, 1969 , election , the Respondents ' picketing had as
an object the organization of, or recognition for, certain
of the Company ' s employees within the meaning of
Section 8 (b)(7) of the Act,; and (2) the election held
on April 24, 1969, was a valid election within the meaning
of Section 9(c) of the Act . Consequently , we find that
the Respondents ' picketing of the Blue Onion on and
after July 4, 1969 , violated Section 8 (b)(7)(B) of the
Act. ,
CONCLUSIONS OF LAW
1. Custom Catering, Inc., d/b/a Blue Onion is an
employer 'engaged in commerce' within the meaning of
Section 2(6) and (7) of the Act. '
2. Local Joint Executive Board of Las Vegas, Nevad-
a, namely Culinary Workers, Local 226, and Bartenders
Union, Local 165, affiliated with Hotel, Restaurant &
Bartenders International Union, AFL-CIO, are labor
organizations within the meaning of Section 2(5) of
the Act.
3. By picketing the Blue Onion on and after July
4, 1969, with an object of organizing, or gaining recogni-
tion for, a unit of the Company's employees although
a valid election under Section 9(c) of the Act, not
won by the Respondents, had been conducted for such
employees within the preceding 12 months, Respondents
have engaged in unfair labor practices within the meaning
of Section 8(b)(7)(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondents set forth in section
III, above, occurring in connection with the Company's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes, burdening and obstructing com-
merce and the free flow of commerce.
THE REMEDY
Having found that the Respondents have engaged
in unfair labor practices in violation of Section 8(b)(7)(B)
of the Act, we shall order that they cease and desist
therefrom and that they take certain affirmative action
which will effectuate the policies of the Act.10
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board orders that the Respondents, Local Joint Execu-
tive Board of Las -Vegas, Nevada, namely Culinary
Workers, Local 226, and Bartenders Union, Local 165,
affiliated with Hotel, Restaurant & Bartenders Interna-
tional Union, AFL-CIO, their officers, agents, and repre-
sentatives, shall:
1. Cease and desist from picketing or causing to
be picketed Custom Catering Inc., d/b/a Blue Onion,
with an object of either forcing or requiring the Company
to sign a contract with them or in any other manner
to recognize or bargain with them as the representative
of the Company's employees, or forcing or requiring
the employees to accept or select them as their collective-
bargaining representative, where within the preceding
12 months a valid election under Section 9(c) of the
Act has been conducted among the said employees
and has not been won by the Respondents.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Post at their business offices and meeting halls
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Regional
Director for Region 31, after being duly signed by
Respondents' authorized representative, shall be posted
by them immediately upon receipt thereof, and be main-
tained by them for 60 days thereafter, in conspicuous
places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Sign and mail to the Regional Director for Region
31, sufficient copies of said notice, to be on forms
provided by him, for posting by Custom Catering, Inc.,
d/b/a Blue Onion, if willing, at places where it customari-
ly posts notices to its employees.
(c) Notify the Regional Director for Region 31, in
writing, within 10 days from the date this Order, what
steps Respondents have taken to comply herewith.
10 Sec 8(b)(7)(B) of the Act proscribes picketing for a period of
12 months following a valid election However, in accord with our
usual practice the 1-year ban against picketing here shall run from
August 22, 1969, the date on which, according to the record, the
unlawful picketing ceased Teamsters Local Union No 5 (Barber Broth-
ers Contracting Co , Inc ), 171 NLRB No. 9; Retail Store Employees'
Union, Local No 692 (Irvms, Inc ), 134 NLRB 686, 690-692
" In the event this Order is enforced by a judgment of the 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 "
LOCAL JOINT EXECUTIVE BOARD
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket or cause to be picketed
Custom Catering, Inc , d /b/a Blue Onion , with an
object of forcing or requiring the Company to sign
a contract with us or in any other manner to recog-
nize or bargain with us as your collective -bargaining
representative where within the preceding 12
months a valid election under Section 9(c) of the
Act has been conducted among you and we have
not won that election i
LOCAL JOINT EXECUTIVE
BOARD OF LAS VEGAS,
NEVADA
(Labor Organization)
Dated by
(Representative) (Title)
Dated by
Dated by
253
CULINARY WORKERS,
LOCAL 226
(Labor Organization)
(Representative ) (Title)
BARTENDERS UNION,
LOCAL 165 AFFILIATED
WITH HOTEL,
RESTAURANT &
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, Federal Building, Room 12100, 11000 Wilshire
Boulevard, Los Angeles, California 90024, Telephone
213-824-7351