Local Joint Executive Board, Etc.

National Labor Relations Board - Board Decisions

Jun 24, 1965

153 N.L.R.B. 392 (N.L.R.B. 1965)

392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
Members or employees may communicate directly with the Board's
Regional Office, Eastern Columbia Building, 849 South Broadway,
Los Angeles, California, Telephone No. 688-5229, if they have any
questions concerning this notice or compliance with its provisions.
Local Joint Executive Board , and Cooks and Assistants Local
No. 33 , Waiters Local No. 239, Waitresses Local No. 240 of the
Hotel and Restaurant Employees and Bartenders Union, AFL-
CIO [Louis J. Ferrera, d/b/a Little Luigi 's Italian Foods] and
Michael J . Starosky. Case No. 19-CB-916. June 24, 1965
DECISION AND ORDER
On June 10, 1964, Trial Examiner Irving Rogosin issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor practices, and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He further found that the Respondents had not engaged in other
unfair labor practices alleged in the complaint. Thereafter, the
Respondents and the General Counsel filed exceptions and supporting
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 connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Trial Exam-
iner's Decision, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the additions noted below.
We find merit in the General Counsel's exception to the failure of
the Trial Examiner to find that the Respondents' threat to picket and
the picketing of Louis J. Ferrera, d/b/a Little Luigi's Italian Foods,
herein called Luigi's, constituted violations of Section 8 (b) (2) of
the Act.
The Trial Examiner found that the Respondents, after threats to
picket, picketed Luigi's on or about June 25 and 26,1963. The credited
testimony reveals that as a result of the picketing by Respondents,
153 NLRB No. 42.
LOCAL JOINT EXECUTIVE BOARD, ETC. 393
Luigi's signed a contract demanded by Respondents. This contract
provided for exclusive recognition and contained a union-security pro-
vision, notwithstanding the fact that the Respondent did not represent
a majority of Luigi's employees.
The Board has held, with court approval, that picketing by a minor-
ity union for the purpose of obtaining a contract providing for a
union-security clause violates the Act.' This is precisely the conduct
of Respondents herein. Accordingly, we conclude that the Respond-
ents violated Section 8 (b) (2) of the Act by threatening to picket, and
by picketing, Luigi's to obtain a union-security contract at a time
when Respondents did not represent a majority of Luigi's employees. 2
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondents, Local Joint Executive Board,
Cooks and Assistants Local No. 33, Waiters Local No. 239, Waitresses
Local No. 240 of the Hotel and Restaurant Employees and Bartenders
Union, AFL-CIO, and each of them, their officers, agents, and repre-
sentatives, shall take the action set forth in the Trial Examiner's Rec-
ommended Order, as so modified.
1. Add the following as paragraph 1(a) to the Trial Examiner's
Recommended Order, the present paragraph 1(a) and those follow-
ing being consecutively relettered, and the word "Union" in present
1(a) being changed to "Unions".
"(a) Attempting to cause Louis J. Ferrera, doing business as Little
Luigi's Italian Foods, its agents, successors, or assigns, to discriminate
against its employees by entering into a contract which requires mem-
bership in Respondent Unions, at a time when Respondent Unions do
not represent a majority of the employees in an appropriate unit."
2. Add the following as the first indented paragraph in Appendix
A attached to the Trial Examiner's Decision :
WE WILL NOT attempt to cause Louis J. Ferrera, doing business
as Little Luigi's Italian Foods, his agents, successors, or assigns,
to discriminate against employees in violation of Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959, by entering into a contract which requires
membership in our labor organizations, at a time when we do not
represent a majority of the employees in an appropriate unit.
1 See Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders
International Union of Long Beach and Orange County, et al. (Crown Cafeteria), 130
NLRB 1551, enfd 301 F. 2d 149 (C.A 9).
2 The Trial Examiner ' s conclusions of law are amended to include this additional
conclusion.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Amend the first line in the last indented paragraph of Appendix
A to read :
WE WILL NOT in any other manner restrain or coerce employ-
ees .. . .
4. The telephone number and address for Region 19, appearing at
the bottom of the Appendix attached to the Trial Examiner's Decision,
are amended to read: 327 Logan Building, 500 Union Street, Seattle,
Washington, Telephone No. 682-4539.
DECISION OF TRIAL EXAMINER
STATEMENT OF THE CASE
This proceeding under the National Labor Relations Act, as amended (61 Stat. 136,
73 Stat. 519, 29 U.S C. Sec. 151, et seq.), herein called the Act, is based upon a com-
plaint, issued December 12, 1963, alleging that Local Joint Executive Board, repre-
senting Cooks and Assistants Local No. 33, Waiters Local No. 239, Waitresses Local
No. 240 of Hotel and Restaurant Employees and Bartenders Union, AFL-CIO, herein
called Respondents, have engaged in unfair labor practices affecting commerce, in
violation of Section 8(b)(1)(A) and 8(b)(2), and Section 2(6) and (7) of the Act.'
Specifically, the complaint, as amended, without objection, at the outset of the
hearing, by the addition of certain jurisdictional allegations, alleges that Respondent:
(1) on or about June 19, 1963, threatened to picket the Seattle Center, and certain of
its Licensees, for the purpose of causing said Licensees to enter into collective-
bargaining agreements requiring recognition of Respondents and membership in said
organizations as a condition of employment; (2) as a result of said picketing, caused
some of said Licensees to sign such agreements; (3) on or about June 25, 1963,
picketed Louis J. Ferrera, d/b/a Little Luigi's Italian Foods, herein called Luigi's, for
the purpose of causing him to enter into such an agreement; (4) on or about June 26,
1963, as a result of said conduct, caused additional Licensees to sign contracts
requiring recognition of Respondents and membership in said organizations as a con-
dition of employment; and (5) on said date, caused Luigi's to sign such a contract at
a time when Respondents had not been designated as exclusive bargaining repre-
sentative by a majority of Luigi's employees.
Respondents' answer denies generally the allegations of the complaint, as amended,
including the jurisdictional and substantive allegations. Further answering Respond-
ents' move to dismiss on the ground that "the complaint does not conform to the
charge," in that the charge and amended charge indicate that Luigi's is the only
employer involved, whereas other allegations indicate that jurisdiction is asserted on
the basis of "joint employers."
At the same time Respondents filed a separate motion to dismiss on substantially
the same grounds, contending that "the charges upon which the complaint in this
proceeding was issued do not support the allegations" of specified paragraphs of the
complaint. Prior to the hearing, Respondents filed an additional motion to dismiss on
the further grounds that (1) although the complaint alleges that the employers
involved are joint- or multi-employers, there is no allegation that "Respondents do
not represent a majority of the employees in the unit set forth by the complaint," and
that the complaint, therefore, fails to state a cause upon which relief may be granted;
and (2) the licensees named in the complaint, including Luigi's, "ceased to operate
on the premises of the Seattle Center, Inc.," on or about December 1, 1963; the
earliest date of reopening any of the establishments is March 28 or 29, 1964; Luigi's
is "delinquent in lease payments to the Seattle Center, Inc.," and, therefore, "it is
speculative whether [he] will reopen or be permitted to reopen," and "it would not
effectuate the purposes of the Act to proceed with a hearing in this matter, as no
relief is required or can be given." By order dated January 8, 1964, both motions to
dismiss were denied by Trial Examiner David Karasick for the reasons stated in his
order.
1 The original charge was filed on August 12, 1963, and served on Respondents on Au-
gust 13, 1963; the amended charge was filed on December 11, 1963, and served on Re-
spondents about the same date.
LOCAL JOINT EXECUTIVE BOARD, ETC. 395
Hearing was held before Trial Examiner Irving Rogosin at Seattle , Washington, on
January 21 and 22. All parties were represented by counsel , and were afforded full
opportunity to be heard , to examine and cross -examine witnesses , to present oral and
documentary evidence relevant and material to the issues , to argue orally, and to file
briefs. Counsel for the respective parties waived oral argument , but filed briefs with
me: Respondents on February 20, 1964, and the General Counsel on February 24,
1964. The briefs have received due and careful consideration.
At the outset of the hearing , Respondents renewed the motions to dismiss pre-
viously filed and denied . The motions were again denied with leave to renew betore
the close of the hearing . At the conclusion of the General Counsel 's case, Respond-
ents moved to dismiss on the ground that the General Counsel had failed to sustain
the burden of proof with regard to the jurisdictional allegations of the complaint
The motion was denied with leave to renew before the conclusion of the hearing
Leave was also granted Respondents to renew the motions, made prior to and at the
commencement of the hearing . At the close of Respondents ' case, all said motions
were treated as having been so renewed . Ruling having been reserved for disposition
in this Decision , the motions are disposed of in accordance with the findings and
conclusions hereinafter made.
Upon the entire record in the case, including my observation of the witnesses,
I make the following.
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS 2
A. Little Luigi's Italian Foods
Louis J. Ferrera , doing business as Little Luigi's Italian Foods , herein called Luigi's,
is engaged as a sole proprietor in the operation of a food concession at the Food
Circus under a license agreement with Century 21 Center, Inc. During the year
1963, Luigi 's gross retail food sales , all within the State, amounted to slightly more
than $50,000 . During the same period , no purchases were made or shipped to it
from points outside the State of Washington. The General Counsel concedes that
Luigi's has not , at any of the times mentioned in the complaint, been engaged in
commerce within the meaning of Section 2(6)and ( 7) of the Act.
B. The business of Century 21 Center, Inc.
1. The status as a nonprofit corporation
Century 21 Center, Inc., herein variously referred to as the Seattle Center, the
Center, the Licensor , or Lessor, is a nonprofit , nonstock corporation , organized in
1962 under the laws of the State of Washington, pursuant to a joint statement of the
2 The complaint alleges that the Seattle Center and the 20 named Licensees , including
Luigi ' s, are joint employers , and that during the preceding 12 months said Licensees sold
to the general public prepared food having a "gross value " in excess of $500,000, and pur-
chased food and food supplies originating outside the State in an amount in excess of
$50,000 At the outset of the hearing , however , the General Counsel asserted that, al-
though the operations of Luigi ' s alone do not meet the jurisdictional standards of the
Board, since the Center and Luigi ' s constitute joint employers , and operations of the
Center alone satisfy the Board's jurisdictional standards for retail establishments of
$500 , 000 in gross sales per year, the Board has jurisdiction in this proceeding The Gen-
eral Counsel added , "We are only concerned with the operations of [Luigi's ] and not the
other licensees," and, again , "Our complaint is directed specifically to this one licensee,
[Luigi's ]." [ Emphasis supplied .] No evidence was thereafter offered in support of the
jurisdictional allegations as to any Licensees, other than Luigi ' s, or as to the combined
volume of business of said Licensees As an alternative ground for asserting jurisdic-
tion, the General Counsel contended at the hearing that Respondents had caused the Center,
a business enterprise itself engaged in commerce , to exert pressure on Luigi ' s, an em-
ployer not engaged in commerce , to sign a contract with Respondents As a result of
said conduct , Luigi's did thereafter sign a contract recognizing Respondents as exclusive
collective-bargaining representative of Luigi 's employees at a time when said Respondents
did not represent a majority of the employees The General Counsel maintains that
these circumstances afford an alternative ground for asserting jurisdiction In view of
the ultimate conclusions regarding the issue of jurisdiction , it is unnecessary to pass upon
this additional ground.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mayor and the city council of the city of Seattle, and the board of trustees of the Seattle
Center, to occupy, utilize, and manage certain land, consisting of 74 acres, and
buildings owned by the city of Seattle, the site of the Seattle World's Fair.3
The purposes of the corporation, as stated in the articles of incorporation, are*
To promote and advance the educational, literary, scientific and charitable
interests and well being of the people of the City of Seattle and the State of
Washington by a continuous program of appropriate activities and events,
developing, supervising, and promoting as agreed upon with the City of Seattle,
the State of Washington, the Federal Government, and other governmental units
or agencies, the program, facilities, structures, and buildings which are now or
may hereafter be located on or about the site of the Seattle Center, formerly used
for the Seattle World's Fair.
Among the powers granted to the corporation are authority
A. To lease and purchase from others and otherwise acquire, and to
operate, lease, convey, transfer to others, and otherwise utilize, encumber
or dispose of real or personal property.
D. To make and enter into contracts of every sort and kind permitted
by law with any individual, firm, association and private, public or munici-
pal corporation or body politic or any agency or department thereof
* * * * * * *
G. To operate facilities for the education, safety, comfort, convenience,
entertainment and cultural advancement of the public and those associ-
ated with this venture.
Pursuant to the articles of incorporation, the Center has entered into three agree-
ments with the city of Seattle- (1) A master lease agreement, covering the site
and buildings at the Seattle Center; (2) a service agreement under which the Cen-
ter promotes the complex of buildings and acreage; and (3) a concession agree-
ment under which the Center provides food and restaurant facilities at the site.
Respondents contend that the status of the Center as a nonprofit corporation enti-
tles it to exemption from the coverage of the Act. The Board has held that, "A
corporation's nonprofit status is not the controlling consideration and the Board will
not exempt a nonprofit organization from the operation of the Act when the par-
ticular activities involved are commercial in the generally accepted sense." 4 That
the activities of the Center are commercial in nature is manifest not only from the
powers granted in its charter, and from the nature and extent of its operations,
described below, but also from the Center's own apparent recognition of the com-
merical nature of its activities in entering into a master labor agreement with some
20 unions, including those involved in this proceeding.
I conclude and find, therefore, that the Center is not exempt from the operation
of the Act solely by reason of its status as a nonprofit corporation.
2. The status of the Center as an alleged political subdivision
Respondents further contend that as a nonprofit, nonstock corporation, organized
for the purposes set forth above, and subject to the control and supervision of the
city of Seattle, the Center is at best an agent of the city, a part of the political sub-
division of the State of Washington, city of Seattle, and, on this ground, exempt
from the Act. While it is true that the Center was organized as a nonprofit corpo-
ration to promote the civic interests of the people of the city of Seattle, and State
3 It was stipulated that legislation creating the corporation which operated the Seattle
World's Fair had been enacted in 1955, 1957, and 1961, but the corporation has since
been dissolved by the legislature and is in no way involved in this proceeding. Century 21
Center, Inc, was thereafter organised and, although occupying the same site and many
of the same buildings, has no official connection with the former Seattle World's Fair
4 See Young Men's Christian Association of Portland, Oregon, 146 NLRB 20, citing
Woods Hole Oceanographic Institution. 143 NLRB 568, and cases cited in footnotes 21
and 22 ; cf. Trustees of Columbia University in the City of New York, 97 NLRB 424
It may be noted that the cases in which the Board has declined jurisdiction of nonprofit
corporations have generally been those where the purposes have been primarily of a
charitable, religious, or educational character Whatever may have been the primary
objectives of the Seattle World's Fair, the record here discloses that, despite the stated
purposes in the articles of incorporation of the Center, its activities were, in the main,
of a commercial nature.
LOCAL JOINT EXECUTIVE BOARD, ETC. 397
of Washington, it is clear that it was not "created directly by the State, or adminis-
tered by State appointed or publicly elected individuals." It is directed and admin-
istered by a board of trustees, consisting of 16 private citizens. It operates the
property under a master lease agreement from the city of Seattle, and as long as it
complies with the terms and provisions of the lease, functions independently of the
city or its elected officials. The fact that the Seattle Center Advisory Commission,
similar to the one which had been created in connection with the Seattle World's
Fair, has been established by city ordinance to advise the mayor and the city council
concerning matters relating to the Center; that no change in policies or overall plan
for the Center may be made, except by ordinance, unless recommended by the
commission to the mayor and council; and that the property leased by the Center
from the city is, together with all public buildings and lands owned by the city,
under the management and control of the superintendent of buildings, subject to
the control of the Board of Public Works, does not render the Center a political
subdivision exempt from the provisions of the Act. The Center does not have "the
power of eminent domain; it is not empowered to exercise any portion of the sov-
ereign power of the State." 5
Upon the basis of the foregoing, and upon the entire record, I conclude and find
that the Seattle Center is not a political subdivision of the State of Washington, or
the city of Seattle, and, therefore, exempt from the coverage of the Act, but is an
"employer" within the meaning of Section 2(2) thereof, and, as such, subject to the
interdiction of the statute, provided it is found to be engaged in commerce within
the purview of the Act.
3. The nature and extent of the Center's operations 6
During the period in question, the Center under its lease with the city operated
the Food Circus Building, Building 55, known as the Fun Circus; the amusement
park, called the Fun Forest; and Building 37, in which the interior decorator show,
referred to as the A.I.D.7 show, was conducted. The Center leased space for this
show to interior decorators, who erected their own display booths. The Center
furnished outside security guards, a ticket seller, and maintenance, and charged an
admission fee.8 The Center also leased the building in which the Tivoli Restaurant
was located and subleased the Fiesta and Plaza Restaurants to other operators.
With regard to the Food Circus, the Center has licensed under so-called space
agreements food and beverage concessions to some 30 Licensees, including Luigi's 9
The Food Circus is located on the second floor of the former National Guard
Armory Building, which also contains the International Bazaar, and the Show
Balcony, with its museums, as well as a variety of rooms available for rental for
B Randolph Electric Membership Corporation, 145 NLRB 158, where the Board held
that, despite the "statutory declaration that this electric membership corporation has the
rights of a political subdivision [this was] not a sufficient basis for exempting it from
the coverage of the [Act] " See cases cited in footnote 7 of that decision. See also
N.L R.B. v. Howard Johnson Company, 317 F. 2d 1 (C.A 3), enfg, 135 NLRB 1260, where
the Board held that a company operating a restaurant on the New Jeisey Turnpike under
an agreement with the New Jersey Turnpike Authority ("an authority directly created
by the Legislature and governed by members appointed by the Governor with advice and
consent of the Senate," see footnote 7, referred to above in the Randolph case), was an
"employer" within the meaning of the Act, and was not acting in the capacity of a "state
or political subdivision thereof" but as an independent contractor of the New Jersey
Turnpike Authority.
6 The findings in this section are based primarily on the undisputed and credited testi-
mony of Henry W. Dean, executive assistant to Center Vice President Ewen C. Dingwall.
7 Presumably the abbreviation for American Institute of Designers.
8 There is also located at the site a complex of buildings consisting of the ice arena,
opera house, exhibition hall, playhouse, coliseum, and surrounding buildings owned by
the city. With the exception of the playhouse, which it has rented to the Seattle Reper-
tory Theater, Inc , for a term of 1 year, and which it "underwrites," the Center does not
operate t'`is complex of buildings, but receives an income of 15 percent of the gross
revenues for promoting these facilities. The total amount of revenue derived from this
source is not established by the record.
9 Although the complaint names only 20 licensees, including Luigi's, according to Dean,
there were approximately 30 licensees operating at the Food Center when Dean first went
to work there in August 1963.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
various functions. The Food Circus consists of a type of open air arcade, with
booths ranged around the perimeter of an open areaway, the food being served at
counters at these booths.
The Center also owns and operates a monorail which was especially constructed
for the Seattle World's Fair, and which the Center acquired under a transfer agree-
ment from Alweg of Washington, Inc. Since the closing of the fair, the Center has
continued to operate this transit system as a means of transportation for the general
public between the site of the Center and downtown Seattle, charging a fare for
the service. Although the operators of the trains on this system are provided to
the Center by the Seattle Transit System, employees of the Center are responsible
for the overall operation of the monorail, including maintenance, and the collection
of fares by "monorail girls." The amusement park facilities are also operated by
employees of the Center.
Ewen C. Dingwall, a vice president and executive director of the Center, was
generally in charge of the project until his separation at some undisclosed date.
From August 1963 to December 31, 1963, when the Center closed for the season,
to be reopened in March 1964, Henry White Dean, Jr., was executive assistant to
Dingwall. The Food Circus was under the general supervision of Nicholas Jorgen-
son, food director for the Center, and Dean Guintoli, his assistant.
During the year 1963 the Center derived as gross revenues from all sources from
the operation of the enterprise, the sum of $793,433.64, consisting of the following:
6/1-10/ 15/63 , Amusement rides___________________________ $216 ,068.23
6/3/63-12 /31/63, Monorail ------------------------------ 273,499.03
6/ /63-9 /1/63, A.I.D. (Bldg. 37) ------------------------- 18, 087. 66
5/ /63 and 9 / /63, Special Events-Garden Show and
Fashion Show________________________________________ 9,550.26
From Licensees_________________________________________ 10 276, 228. 46
793, 433. 64
During the same period, the Center purchased through a local advertising agency
in Seattle, Washington, advertising in Time, Life, and Sunset magazines, having a
national circulation, amounting to $73,718 paid directly to that agency, of which
15 percent represented the fee retained by it, the remainder being remitted to said
magazines.11 In addition, the Center purchased and had shipped to it from points
outside the State, power collector carbons, for use in connection with the monorail,
in the total amount of $ 1,740.2612
It is thus apparent that the Center's gross volume of business for the year 1963
was in excess of $500,000, without regard to approximately $75,000 in expenditures
for advertising and goods moving across State lines. The Center's operations, there-
fore, far from being de minimis, as contended by Respondents' counsel, has a sub-
stantial impact upon commerce, and amply satisfies the Board's jurisdictional stand-
ards for retail enterprises.
Upon the basis of the foregoing, and upon the entire record, I conclude and find
that the Center is engaged in commerce within the meaning of the Act.
to Of this amount, $139,719.50 represents income from all licensees located in the Food
Circus Building, including the International Bazaar, also classified for accounting pur-
poses as revenue from "the armory." The commerce data concerning the operations of
the monorail system and the amusement facilities were first alleged in the amendment
to the complaint, and have been generally denied on the ground of lack of knowledge.
The amendment alleges that the combined income from these sources exceeds $500,000
annually, and that, during the past year, the value of goods purchased and shipped to
the Center from points outside the State of Washington exceeded $50,000. The findings
with respect to the gross revenues and expenditures, and the breakdown of the figures
given in the text, above, are based upon the undisputed and credited testimony of
Lawrence A. Whitman, chief accountant for the Center.
11 It is immaterial to any determination of whether the Center is engaged in com-
merce, that payment for the advertising was made to the agency within the State. The
effect upon commerce derives from the fact that the advertising appeared in national
magazines which moved in interstate commerce.
12 According to the Center's accountant, he did not consider purchases of power collec-
tor carbons a nonrecurring capital expenditure With reference to expenditures for
advertising, there is no evidence whether these were recurring items, but the accountant
testified that payments were made by the Center to the advertising agency in addition to
the $73,000 amount, although he did not have that figure at the hearing.
LOCAL JOINT EXECUTIVE BOARD, ETC. 399
It remains to be determined, in view of the foregoing conclusions, whether the
Center and Luigi's constitute joint employers so as to justify the Board in asserting
jurisdiction.
4. The relationship between the Center and Luigi's
The space agreement, dated April 22, 1963, between the Center, as Licensor,
and Ferrera, as Licensee, leased space in the Food Circus to Ferrera for the prepa-
ration and serving of Italian foods, for a term of 3 years from June 1, 1963, ending
May 31, 1966.13
This agreement, in effect, a percentage lease, requires Ferrera to pay a deposit or
advance rent, designated as a license fee, of $6,300, one-third to be credited to the
Licensee at the end of the first year, and one-third at the end of each of the 2 suc-
ceeding years, provided that the conditions of the lease are fully performed.
The Licensee agrees to pay a guaranteed monthly rental of $1,050 against a per-
centage rental of 10 percent of daily gross receipts, payable weekly. In addition,
Licensee is required to pay a monthly "service fee" based upon the space occupied,
for security, maintenance, and garbage and trash disposal, as well as for bussing
services, dishwashing, and janitorial services for common eating areas. Licensee is
also required to furnish a performance bond of $1,000, and agrees to be bound by a
uniform set of rules and regulations appended to the general license agreement
applicable to all Licensees, which are incorporated by reference in the space
agreement.
By the terms of the general license agreement, the Licensee is restricted to the
sale of only such merchandise as is permitted under the agreement; is required to
install at his own expense , "improvements and equipment" in accordance with plans
previously approved by Licensor; is required to submit for Licensor's prior approval
all advertising material and media; agrees to keep the premises open 7 days a week,
including Sundays and legal holidays, according to an hourly and daily schedule
issued by Licensor; and is required to maintain books and records of gross receipts
permitting verification by Licensor. Licensor provides a master comprehensive gen-
eral liability policy insuring Licensee at his own expense.
Licensee is required to provide statutory workmen's compensation insurance, social
security, and unemployment insurance , and to pay all taxes, other than real estate
taxes, assessed against the premises leased to Licensee. Licensor reserves the exclu-
sive right to regulate all traffic within the Center, including parking of vehicles of
Licensee, his employees, and patrons. Licensee has no right to assign the lease in
whole or in part.
The rules and regulations, in addition to requiring Licensee to abide by all gov-
ernmental regulations, forbid any misrepresentation by Licensee as to quality, quan-
tity, or price of food, beverages , or merchandise and prohibit any refusal to sell at
the advertised price. These products must be of the "best grade obtainable" and
may not be sold at prices higher than those prevailing in the greater Seattle area for
comparable merchandise . Under the rules and regulations , Licensor reserves the
right to prevent the sale of any products which do not conform to its policies, to
approve or designate suppliers and purveyors with whom Licensee may deal, and to
approve or disapprove prices of products sold at the Center.14 Licensor is also
authorized to approve initially food and beverage menus, size of portions, and
prices charged, and no changes may be made without Licensor's approval. Adver-
tising matter and placard menus also require approval of Licensor prior to posting.
Of more immediate concern, Licensor may require immediate dismissal of any
employee of Licensee for intentional or negligent violation of the rules and regu-
lations, or for conduct endangering the health or life of any person.15 Apart from
this rule there is nothing in the space agreement or the general license agreement,
including the rules and regulations, which gives the Licensor control over the labor
policies of Licensee.
13 Although the record indicates that the concessions at the Food Circus closed for the
4eason as of December 1, 1963, they were expected to reopen in March 1964.
14 According to the undisputed and credited testimony of Richard G. White, manager of
Lui, i's, tha Center designated two or three milk companies, meatpackers, and grocery
firms from which Luigi's was permitted to purchase its supplies.
is The only instance of discharge under this provision, according to Dean's undisputed
testimony, was one which Dean himself initiated. This involved the general manager of
a Licensee, who had allegedly engaged in profanity and disruptive conduct. Dean testi-
fied that he i.rought this to the attention of the Licensee, who complied with Dean's re-
quest to dismiss the offender forthwith.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The space occupied by Luigi's is physically separated by partitions from that of
other food concessionaires. The restaurant equipment is owned by Luigi's, and the
Center has no financial interest in that equipment or in the business, as such, except
as it derives revenue under the percentage rental provisions of the space agreement.
Luigi's, through either Ferrera or White, his manager, hired all employees, con-
sisting of assistant cooks and countergirls, kept time and payroll records, paid wages,
established and maintained social security and unemployment insurance accounts,
making the customary deductions and withholdings, ordered food and supplies for
its own use, established prices for its products, subject to regulation by the Center,
and generally conducted the operation of the restaurant without interference from,
and free from the control, supervision or direction of, the Center, except as indicated.
The Center has no direct supervision or control over the hiring and firmg of
Luigi's employees, and exercises no control over them, except to the limited extent
of reserving the right, under the rules and regulations, to require the immediate
dismissal of any employee for infraction of the rules, or under the circumstances
already related. There is no interchange of employees between Luigi's and other
concessionaires in the Food Circus, nor between Luigi's and employees of the
Center.
The Center employs directly some 100 employees, including carpenters, electri-
cians, janitors, laborers, machinists, painters, plumbers, seamstresses, stationary
engineers, truckdrivers, warehousemen, admission attendants, busboys, retail sales
clerks, powderroom attendants, and ride attendants, who are represented for pur-
poses of collective bargaining under a master agreement between the Center and
some 20 local unions dr councils, including the Local Joint Executive Board involved
in this proceeding. The master agreement, dated May 15, 1963, and expiring, in
the absence of extension by mutual consent, on December 31, 1963, contains no-strike
and no-lockout provisions, and provides for union security and a hiring hall, health
and welfare benefits, and settlement of disputes by grievance and arbitration proce-
dures. Significantly, the agreement contains the following provisions:
SECTION. 6. Disputes with Concessionaires
(a) Disputes between the Unions signatory to this Agreement and any con-
cessionaire operating at the Seattle Center shall be so handled as not to interfere
with the Employer's business or the business of any concessionaire not a party
to such disputes. No picketing or concerted action against any one or more of
the concessionaires will be conducted near or around the entrances or exits of
the Seattle Center. "Concessionaire" as used herein includes a concessionaire
and also a licensee, lessee, exhibitor, participant, contractor or subcontractor.
In the event any other organization pickets at or near the Seattle Center, the
Unions signatory hereto agree to use their best efforts to see that such picket line
does not affect the operations of the Employer or concessionaires who are not
involved in the disputes.
(b) The Employer agrees to use his best efforts to see that any disputes
between the Unions signatory hereto and a concessionaire are expeditiously
resolved.
5. Concluding findings regarding the status of the Center
and Luigi's as joint Employers
In contrast to the cases in which the Board has held a Licensor and its Licensees
to be a single employer or joint employers, there is no basis here for concluding
that the Center made any effort to create an impression upon the part of its patrons
that they were dealing with a single enterprise rather than with separate enterprises
occupying space under a license or lease.lG On the contrary, each of the restaurants
or food shops in the Food Circus is operated under a distinctive name, designed to
denote the food specialty served, under a standard license agreement with the
Center.l7
16 See, e g., Spartan Department Stores, 140 NLRB 608, Coney Island, Inc, 140 NLRB
77, Frostco Super Save Stores, Inc, 138 NLRB 125; United Stores of America, 138 NLRB
383; Bargain City, USA, Inc, 131 NLRB 803; Walter Carl Ray et at., d/b/c. Ray,
Davidson, and Ray, 131 NLRB 433.
17 E g, Belgian Waffles, Hickory Rib Pit, Mongolian Grilled Steak House, Gordo's
Mexican Food, and, of course, Little Luigi's Italian Foods. In addition, other licensees in
the Food Circus included Bargreen Coffee Company and Burgemaster, Inc. [sic] not
readily likely to be identified as employer with the Seattle Center.
LOCAL JOINT EXECUTIVE BOARD, ETC. 401
In this respect, the licenses closely parallel those delineated in S.A.G.E., recently
decided by the Board,rs in that the licenses there demonstrated the exercise by the
licensor of "close control over the operational policies of the licensees," but not
"over the labor policies of the latter." In the instant case, the only contractual
control exercised by the Licensor over the labor policies of the Licensee, is the
reservation of the limited right, without more, to request the dismissal of any
employee for intentional or negligent violation of the rules and regulations, or for
conduct constituting a "threat to the health or life of any person." In contrast to
Frostco, supra, which the Board cited as "typical of [discount department store]
cases," the Center does not have blanket "authority to require the discharge of an
employee it considered objectionable, to prohibit the reemployment of such dis-
charged employee by another department without its consent, and to forbid the
transfer of employees from one department to another without its prior approval."
(Emphasis supplied.) Moreover, neither the space agreement nor the general license
agreement (including the rules and regulations) "prohibited either the licensor or
licensee to enter into collective-bargaining negotiations with any labor organization
without the prior approval of the other [or] gave the other party the right to par-
ticipate in such negotiations." Contrasting S.A.G.E. with Frostco, the Board said,
"Because of the actual and potential control of labor matters retained by the licensor
over the employees of the licensees, the Board concluded in Frostco that the licensor
and the licensees were joint employers . . ." Further, the Board said, "In contrast,
S.A.G.E. does not have control over the personnel and labor policies of its licensees
that were present in the cited cases. So far as appears from the license agreement,
and other evidence, such licensee of S.A.G.E. is free to decide its own labor policies,
to conduct its own collective bargaining negotiations, and to make its own collective-
bargaining contracts, free of any interference or control by S.A.G.E." Finally, the
Board held, "In the absence of substantial control of labor relations by S.A.G.E.,
we find that S.A.G.E. and its licensees are not joint employers of the employees of
the licensees."
Applying the criteria established by the Board, and in view of the absence of any
contractual provisions in the license agreement permitting the Center substantial
control over the personnel and labor policies of its Licensees, it would seem that a
finding that the Center and Luigi's are joint employers could not be justified. If this
were all that was involved in the case, then the sole remaining ground for asserting
jurisdiction would have been removed.
The record establishes, however, that without prior consultation or discussion
with the Licensees, the Center entered into a master labor contract with the signa-
tory unions which provided, among other things, that disputes between those unions
and any concessionaires should be so handled as not to interfere with the Licensor's
business or that of any concessionaire not a party to the dispute. In this connection,
the contract further provided that "no picketing or concerted action" against any
concessionaire would be conducted "near or around the entrances or exits" of the
Center, and that in the event of picketing by any other organization "at or near"
the Center, the unions would "use their best efforts" to prevent such picket line from
affecting the operations of Licensor or concessionaires not involved in the disputes.
The Licensor, for its part, agreed to use its best efforts to see that any disputes
between the unions and the concessionaire were "expeditiously resolved."
Although this may fall short of establishing actual or potential control on the
part of the Licensor over the labor relations of its licensees, it is significant that, so
far as the record reveals, the Center did not avail itself of the provisions of its mas-
ter labor contract, quoted above, in an effort to have the pickets withdrawn, and
the dispute with the concessionaire, Luigi's, resolved. Instead, as will presently
appear, the Center capitulated to Respondents' demands, and compelled Luigi's to
sign an exclusive collective-bargaining agreement requiring recognition of and mem-
bership in the Union as a condition of employment, at a time when the Union did
not represent any of the Licensee's employees, apart from any question of appro-
priateness of unit. This furnishes most compelling evidence that the Center was
not only "in a position to influence all the licensee's labor policies," 19 that it pos-
sessed "potential control of labor matters" of Licensee, and that Licensee was not
"free to decide its own labor policies, to conduct its own collective-bargaining nego-
tiations, and to make its own collective bargaining contracts, free from any inter-
is S.A.G E., Inc. of Houston and Its Licensees, 146 NLRB 325.
19 See Frostco Super Save Stores, Inc., supra, at 128, and cases cited at footnote 16
herein.
796-027-66-vol. 153-27
402 DECISIONS DF NATIONAL LABOR RELATIONS BOARD
ference or control" by the Center,20 but, indeed, that the Center actually used such
influence to compel the Licensee to sign the labor contract upon peril of having its
license canceled . It is difficult to conceive of a more drastic method of influencing a
Licensee 's labor policies than by threatening to deprive him of the benefits of the
contract upon which his very business depends.
Under these circumstances , and upon the entire record , I conclude and find that,
for the purposes of this proceeding , the Center, as Licensor , and Luigi 's, as Licensee,
are joint employers 21
II. THE LABOR ORGANIZATIONS INVOLVED
Local Joint Executive Board, representing Cooks and Assistants Local No. 33,
Waiters Local No. 239, Waitresses Local No. 240 of Hotel and Restaurant Employ-
ees and Bartenders Union,22 and each of said Locals , sometimes referred to collec-
tively herein as the Union, the Local Unions, or Respondents, as the context may
require, are , and at all times material have been , labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
Luigi's opened for business at the Food Circus on June 7, 1963. On June 9, Ferrera
left for Spokane, leaving White, his manager, in charge.23 Ferrera did not return to
Seattle until the following weekend, on June 16 or 17.
In the interim, on Julie 10, White received a visit at Luigi's from Albert J. Feldman,
business representative and secretary-treasurer of Local No. 239, as well as president
of the Local Joint Executive Board.24 Feldman was accompanied by Alice E.
Edwards, business agent of Waitresses Local No. 240, and James Flynn, business
agent of Cooks and Assistants Local No. 33. Feldman ascertained that White was the
20 Id.
21 The record fairly establishes that the general license agreement, together with the
rules and regulations , applied uniformly to all Licensees named in the complaint, includ-
ing Luigi ' s. In view of the findings in the text , above, a conclusion would be warranted
that the Center , and all food and beverage Licensees , together , constitute joint employers,
as alleged in the complaint . The General Counsel, however , conceded at the outset of the
hearing that he was relying only upon the operations of the Center , and Luigi ' s, "and
not the other licensees ," to establish jurisdiction , and that the "complaint is directed
specifically to this one licensee , Ferrera." ( See footnote 2.) It Is not altogether clear
whether by this concession , the General Counsel intended to abandon the allegations of
the complaint charging Respondents with unfair labor practices in threatening to picket
the Center , and said Licensees , for the purpose of causing them to enter into union -security
contracts with Respondents , which said Licensees thereafter actually signed . Conceiva-
bly, the concession may have been intended to obviate the necessity for introducing addi-
tional commerce data concerning the other Licensees , the General Counsel being content
to rest upon his theory of jurisdiction based upon the sta us of the Center , and Luigi's,
as joint employers . It is doubtful , however , that Respondents were placed on sufficient
notice that despite his concession , the General Counsel may still have been relying upon
the unfair labor practice allegations with respect to the remaining Licensees . I am not
satisfied that these allegations have been fully litigated . The matter has not been cov-
ered in the briefs of either of the parties . In any event , since no affirmative evidence
was offered that Respondents did not represent a majority of the employees of such other
Licensees in an appropriate unit at the time they entered into separate collective-
bargaining agreements with Respondents , no finding of unfair labor practice could be
predicated upon this phase of the case.
22 As named in the complaint , and described in the collective -bargaining agreement with
Luigi's, hereinafter discussed . The union signatories to the contract are shown as fol-
lows: Local Joint Executive Board: Alice Edwards #240 , Al Feldman Pres. #239,
James Flynn 33.
23 During the early stages of the operation of Luigi's , Ferrera himself was In Spokane,
where he resided and operated another restaurant known as Luigi's , as contrasted with
Little Luigi 's restaurant . The day-to-day operation of the restaurant at the Center was
conducted by the manager.
24 A council of the Hotel & Restaurant Employees and Bartenders International Union,
comprised of five locals , the three involved herein, and Bartenders Local No. 487, and
Hotel, Motel and Club Service Employees Union, Local No. 551.
LOCAL JOINT EXECUTIVE BOARD, ETC. 403
manager, and asked him if he was authorized to speak for management. The dis-
cussion was continued outside the booth, Feldman indicating he would like to "discuss
a labor program" with White. When White inquired "exactly what they wanted,"
Edwards interjected, "a signed contract with the management." White declared that
he "could not do it, that [he] could not sign the contract." 25 Asked by Feldman if
he was "anti-union," White denied it, but remarked that he felt that a union contract
would be of no benefit to either management or the employees. In the exchange
which followed, Feldman insisted and White denied that he was antiunion, but White
stated that a "union contract would do nothing but extort monies from [the] employ-
ees and employer."
Finally, one of the business agents asked White where Ferrera was, and White told
them he was in Spokane. Feldman asked White whether Ferrera was a Spokane
businessman. Told that he was, Feldman replied, "That is different, I thought he
was a Seattle boy." 26 Feldman then remarked that "we [presumably the Union]
had put money in the Center," and told White that they intended to see Nicholas
Jorgenson, the director of the Food Center. The union representatives then left.
The following week, Monday, June 17, Dean Guintoli, Jorgenson's assistant, accom-
panied by the same union representatives, called on White at Luigi's. Guintoli told
White that "they were there to get a signed union contract." Feldman interjected,
"Why don't we get Mr. Lee (referring to Chin-Jo Lee, who operated the Mongolian
Grilled Steak House) and get this over with once and for all." White left the group
and returned with Lee and Phil Jensen, another concessionaire who operated the
Corned Beef Palace, whom White had enlisted to join them. Guintoli and the union
representatives were waiting in the office at Luigi's. The discussion became quite
animated. One of the union agents told White that pickets were waiting outside the
booth for a decision, and that if Luigi's agreed to sign a contract the pickets would
be withdrawn, otherwise "they were going to walk." Both Lee and Jensen refused to
sign a union contract, Jensen remarking that he would sign no contract which would
permit the union to "take money from his employees."
White testified, without contradiction, that during the previous week Guintoli had
told him that if picketing occurred at Luigi's establishment, the Center would cancel
his contract. At the meeting the following Monday, discussed above, in the presence
of Lee, Jensen, and the union representatives, White asked Guintoli to point out the
provisions in the license agreement which permitted the Licensor to cancel the con-
tract in the event a licensee's establishment were picketed. Guintoli said that he could
not do so without seeing the contract. According to White, it did not occur to him
that he might have had a copy of Luigi's contract and he made no effort to produce
it at the time.
Jensen interposed that he had not even seen a union contract, and the union repre-
sentatives thereupon furnished Lee, Jensen, and White with copies of a proposed con-
tract, stating that the men "had a half hour to read it over and sign it." The business
agents and Guintoli then left. White, accompanied by Jensen and Lee, decided to
canvass the other concessionaires in the Food Circus to find out whether any of them
had signed contracts with the Union or intended to do so. The record is silent as to
what they learned.
As they walked through the area, they encountered Jorgenson. He told them that
he had "called the pickets off temporarily," and was calling a meeting of all the
concessionaires for the following Wednesday, June 19, so that they could elect a com-
mittee to negotiate with the Union on their behalf, referring to the three men, and,
presumably, the other food concessionaires. Jorgenson proposed that the committee
consist of at least three concessionaires , preferably not more than one of these men
serving.
The three men left Jorgenson to return to their booths. En route, they met Busi-
ness Agent Edwards. White told her that there would be no further discussions
until after "our negotiating committee had met" with the union representatives.
Edwards rejoined that "their contract was not negotiable."
There was no further communication between the union representatives and White
between that date and the date of the proposed meeting scheduled for Wednesday
of that week. In the interim, Ferrera, White's employer, arrived in Seattle from
Spokane.
25 It is not altogether clear whether White meant by this remark that he had no authority
to sign a contract or whether he was unwilling to do so. It is unnecessary to resolve
this doubt , but it is clear in any case that White indicated his opposition to any agree-
ment with the Unions.
23 This cryptic remark was not explained.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At a regular meeting of the Local Joint Executive Board, held on June 13, 1963,
with Business Agent Feldman presiding and Business Agents Edwards and Flynn in
attendance, the matter of Luigi's refusal to sign a contract with the Union was dis-
cussed. Feldman testified that other concessionaires at the Food Circus had signed
contracts, and "were paying fringe benefits . and wage scale," that the Union
considered it unfair to the concessionaires who had union contracts to permit others
to remain nonunion , and that the operation should be completely organized. After
some discussion, the, Joint Executive Board passed a formal resolution, authorizing
"economic action" against Luigi's, and apparently other concessionaires who had
refused to sign a contract. Picketing, however, did not actually take place until
June 25, 2 weeks later, Feldman giving as the reason for the delay that "we had to
get [picket] signs made." 27
In the 2 days before the scheduled meeting of the concessionaires, White had a
number of discussions with Gumtoli. On each occasion, according to White's uncon-
tradicted and credited testimony,28 Guintoli told him that "I was a fool and I should
just sign the contract and let sleeping dogs lie." Joigenson notified the concessionaires
of the meeting by a bulletin issued from his office. The meeting was held, as sched-
uled, on the morning of June 19 in a room in the Food Circus Building. Substantially
all the food concessionaires attended, as did Jorgenson, Guintoli, White, and James
N. O'Connor, a local attorney, who had been requested to attend the meeting on
behalf of the concessionaire operating the Belgian Waffle House
Jorgenson presided over the meeting and, after discussing business conditions at
the Food Circus in general, declared, "Let's get to the point. We are here because
of the union.20 If we don't sign the union contract they are going to put pickets out.
If they [do] we are going to close you," referring to concessionaires who would be
picketed. Then he continued, "Let's get a committee formed and we will get the con-
tract signed."
During the discussion which followed, some of those present argued that the labor
situation at the Food Circus was different from that prevailing among restaurant
operators in Seattle proper, because employees at the Food Circus were, for the most
27 This reason borders on the ludicrous It is utterly incredible that it would have
taken 2 weeks to prepare picket signs . It would have been more commendable if Feld-
man had adhered to his testimony elsewhere , that the Union had no intention of picketing
prior to June 25, and had said that the real reason for the delay was the hope that Luigi's,
and the other concessionaires who had not signed contracts with the Union, would recon-
sider. Although of no significance in itself the remark reflects unfavorably on his testi-
mony in other areas where he showed a tendency to be evasive and equivocal , as where,
for example , while admitting that he had several conversations with Food Director Jor-
genson at the fairgrounds , he denied discussing with him the signing of contracts by the
concessionaires with the Union prior to the date of Luigi ' s union contract . Feldman did,
however, admit that he discussed "non-union establishments " with Jorgenson ' s assistant,
Guintoli, who had expressed the opinion that the Center should be completely organized
Again , while admitting that he had been at the Food Circus on several occasions with
the business agents, he denied having any conversation with White , Luigi's manager,
allegedly because he was the representative of the Waiters Union , and no waiters were
employed at Luigi 's. This ignores the fact that Feld ian accompanied Edwards and
Flynn in his official capacity as president of the Joint Board , the only body empowered
to authorize the execution of a contract with the concessionaires , and the body which
thereafter actually executed the contract as representative of the Locals
28 Guintoli was not called as a witness by either side, and there was no showing or
contention that he was unavailable . Jorgenson was present during some sessions of
the hearing, and although the General Counsel had indicated that he intended to call him
as a witness , excused him without doing so In view of Jorgenson's announced desire to
testify as a witness for either side, when it appeared that neither side intended to call
him, I afforded him an opportunity to do so before closing the hearing . Thereupon, after
consulting with Jorgenson , counsel for Respondents represented to me that Jorgenson did
not wish to testify. Regarding Respondents ' contention that the evidence concerning
the statements by Jorgenson and Guintoll constituted hearsay, it is sufficient to observe
that no oh ,,.,,tion was made when the evidence was offered . Moreover , the record affords
ample corroboration regarding the statements attributed to them , not the least of which
was furnished by Union Representative Feldman regarding his conversations with Guintoli
and, to a lesser extent , with Jorgenson , both of whom were shown to be, at the very least,
ostensible agents of the Center. See American Rubber Products Corporation v. N.L B B ,
214 F . 2d 47, 51-,-2 (C.A. 7).
2D According to Jensen, Jorgenson made the comment , in this context , "This is a
union town."
LOCAL JOINT EXECUTIVE BOARD, ETC. 405
part, students who worked only during the summer, and would not benefit from any
pension or similar plans for which deductions would be made from their wages. This
prompted the suggestion that counterproposals be made to the Union for changes in
the standard contract.30
At this meeting, Jorgenson was asked "to point out in the contract" the language
which authorized the Center to "close a concessionaire" whose place of business was
being picketed. Jorgenson retorted that if they were going to become embroiled in
"legalities we are going to part company now." Lee asked if the attorney, presumably
referring to O'Connor, might be permitted to speak. Joigenson ieiterated what he
had said about getting into "legalities."
Discussion turned to formation of the committee, and Jorgenson announced that
no one could serve who did not have a "capital inteiest" in a concession. As far as
the record reveals, this announcement was made without consultation with any of
those present and without discussion or vote by the concessionaires Consequently,
White, Ferrera's manager, who had been most vocal in opposing the Union, and who
represented his employer at the meeting, was disqualified from serving on the
committee.
The committee, selected "at random" from among the concessionaires, was com-
prised of six members, including a chairman. The committee met the following day,
June 20, to consider various proposals which had been submitted to it by some of the
concessionaires. White, who substituted for Jensen at the latter's request, attempted
to participate in the drafting of proposals to the Union, but was told, it does not
appear by whom, that he "had no business to be there, that Mr. Jensen was to show
Up "
On Monday, June 24, about 10 30 a.m., Leonard Moline, chairman of the com-
mittee, called at Luigi's accompanied by Union Representatives Feldman, Edwards,
and Flynn. Edwards was holding a contiact and pen, while Moline held a "union
card," presumably showing that the proprietor was under contract with the Union.
Moline told White, "You are going to have to take one of these, Rick." In reply,
White ordered Moline out, protesting that Luigi's had not been represented at the
committee meeting, and that the contract changes which he had proposed could
scarcely have been thoroughly discussed in the half hour which had elapsed between
the time of the committee meeting and their visit to Luigi's that morning
Later the same day, Guintoli called at Luigi's and remonstrated with White. White,
who by then had a copy of the lease agreement, asked Guintolt to point out any provi-
sion in the agreement which permitted the Center to cancel the contract in the event
a concessionaire were picketed. Guintoli searched through the contract, and referred
to the provision which required compliance with the rules and regulations White
pressed Guintoli to point to any language requiring the concessionaire to sign a con-
tract with a union or permitting the Center to cancel the contract in the event of
picketing. Guintoli returned to the license agreement and referred to the provision
permitting the Center to change the rules and regulations whenever it wished White
rejoined that he "didn't think that was good enough."
Guintoli left, but returned several times, and told White that "the pickets were
ready to walk" to which White replied that there was nothing he could do to prevent
it. Guintoli suggested that White ought not to assume the responsibility for making
any decision, but should communicate with Ferrera. White ieplied that "it didn't
take much responsibility to tell these people no." Willie apparently did contact
Ferrera, who was in the midst of moving his home and unable to leave Ferrera
instructed him to "do the best [he] could [hut] not to sign the [union] contract unless
there was no other alternative." Next day Guintoli renewed his exhortation to
White, but to no avail.
Later the same day, Jorgenson himself called on White, told him that he, White,
could not keep them waiting any longer,3' and offered him the alternative of signing
the union contract, being picketed, or closing down. White decided to submit to the
picketing. Within a matter of minutes, pickets began to patrol in front of Luigi's.
Picketing continued for the remainder of that day and the following day, June 26.
Later that afternoon, Ferrera himself appeared at the restaurant, and went with
White to Guintoli's office away from the fairgrounds. Ferrera told Guintoli that he
was very displeased at having pickets outside his restaurant, and protested Gumtoli's
"pressuring" White during the week. Ferrera also reminded Guintoli that before
signing the license agreement with the Center, he had asked Guintoh whether he
3O This finding is based on the uncontroverted and credited testimony of Attorney
O'Connor.
It is not clear whether by "them ," Jorgenson was referring to the Union or to the
Center The consequences would be the same
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be required to sign a union contract, and that Guintoli had told him that he
would not. Guintoli replied that he had no alternative, that Ferrera would have to
sign the contract because the following day, Thursday, the Union "planned to put
24 pickets in front of [Luigi's] booth, . . . and that the [Union] intended to picket
every gate to the Fairgrounds and possibly the Food Circus." Ferrera then said that
he did not want to "cause the Center or the other concessionaires that grief," and he
and White returned to the Food Circus with Guintoli.
When they arrived at Luigi's, Union Representatives Feldman, Edwards, and
Flynn were waiting Ferrera told them that he was signing the contract "against
[his] will [but that he had] no other choice." Feldman remarked that Ferrera was
"doing the right thing to sign [the] contract." Ferrera thereupon signed the contract
and the pickets were withdrawn a few minutes afterward.32
The only classifications of employees at Luigi's were cook's helpers and counter-
girls. Ferrera, himself, and White were both cooks, and since the food served was
prepared according to a special recipe, it was unnecessary for Luigi's to employ cooks.
The record establishes, the parties have stipulated, and I find, that none of the
Locals named as Respondents claimed to represent cook's helpers, countergirls, or
either of said classifications of employees, or a majority of them, on June 25 and 26,
1963, when the Union picketed Luigi's place of business, or on the latter date, when
the contract, according the Union exclusive recognition and requiring membership
in the Union as a condition of employment, was executed. In fact, according to
White's uncontradicted and credited testimony, when he asked Business Agent
Edwards whether "she represented the [counter] girls," who were within the jurisdic-
tion of her Local, she admitted to him that she did not She further testified that
she did not know the number of countergirls employed by Luigi's, that she did not
contact any of the girls about joining the Union, and that none of them were mem-
bers or had applied for membership Although she also testified that the Union had
never attempted to enforce the contract "as far as the Waitresses Union is concerned,"
this testimony was contradicted by Feldman, who testified that the Local Joint
Executive Board regards the contract as still in effect. In view of his testimony that
all contracts must be submitted to the Joint Board for approval by all the delegates at
a regular meeting , before becoming effective, and that the signatures of the business
agents of the locals are not binding upon the Joint Board, it would appear that Feld-
man was in a better position to testify whether the contract was being enforced.
Moreover, it will be recalled that picketing to obtain the contract had been authorized
only after formal action taken at a regular meeting of that Board. It was stipulated,
however, that no dues have been collected from employees of Luigi's.
Concluding Findings
It was stipulated at the hearing, and I find, that the Union picketed Luigi's place of
business on or about June 25 and 26 and, on June 26, 1963, entered into a collective-
bargaining agreement with Luigi's, whereby the Union was recognized as exclusive
bargaining representative of Luigi's employees, notwithstanding that the Union did
not then represent a majority of such employees. Although Respondents do not
concede that the picketing which occurred on those dates was for the purpose of
obtaining a contract, the record leaves no doubt that that was, in fact, the purpose of
the picketing.
While the Act does not proscribe peaceful primary picketing for recognition, as
occurred here,33 by a union which does not represent a majority of employees, and,
indeed, which represents no employees whatever,34 it is well established by the Board
and the courts that an employer who enters into a contract with a union granting
exclusive recognition, especially one requiring membership in the union as a condi-
tion of employment, at a time when the union does not represent an uncoerced
majority of the employees, furnishes the union with illegal assistance in violation of
Section 8 (a)(1) and (2), and a union which executes such a contract containing
union-security provisions causes or attempts to cause the employer to discriminate
against its employees in violation of Section 8(a)(3), thereby violating Section
32 According to Ferrera's undisputed and credited testimony there were three pickets
patrolling in front of his establishment, and three more were waiting to relieve them.
Upon the signing of the contract, they were dismissed with a wave of the hand by one
of the union representatives, presumably Feldman
w It was stipulated that the picket signs bore the legend "LUIGI'S RESTAURANT
NON-UNION," with the name "LOCAL JOINT EXECUTIVE BOARD" underneath
34 NLR B. v. Drivers, Chauffeurs and Helpers Local Union No 639, etc. (Curtis Bros.),
362 U S. 274.
LOCAL JOINT EXECUTIVE BOARD, ETC. 407
8(b) (2), and restrains and coerces employees in the exercise of the rights guaranteed
in Section 7, thereby violating Section 8 (b) (1) (A) of the Act.35
I therefore conclude and find that by executing and maintaining a collective-
bargaining agreement which recognized Respondents as exclusive bargaining agent of
Luigi's employees, requiring membership in the Union as a condition of employment,
at a time when it did not represent these employees, Respondents have restrained and
coerced employees in the exercise of the rights guaranteed in Section 7, thereby vio-
lating Section 8(b)(1)(A) of the Act, and have attempted to cause an employer to
discriminate against employees in violation of Section 8(a)(3), thereby violating
Section 8(b) (2) of the Act.
It will be recalled that the complaint also alleges that Respondents threatened to
picket the Center, and food and beverage Licensees other than Luigi's, for the purpose
of causing them to enter into contracts requiring recognition of and membership in
the Union as a condition of employment, and that as a result of said conduct some of
these Licensees executed such contracts, For reasons indicated elsewhere,36 I make
no findings regarding such allegations. Moreover, apart from those reasons, and what
has been said concerning the legality of peaceful, primary recognitional picketing,
there is a complete absence of probative evidence with respect to those Licensees that,
at the time Respondents entered into such contracts, a majority of the employees of
said Licensees had not designated the Union as their exclusive bargaining agent.37
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Century 21 Center, Inc., and Louis J. Ferrera, d/b/a Little Luigi's
Italian Foods, as joint employers, set forth in section III, above, occurring in connec-
tion with their 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 to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices,
within the meaning of Section 8(b)(1)(A) and (2) of the Act,38 it will be recom-
35 See Bernhard-Altmann Texas Corporation, 122 NLRB 1289, enfd. 280 F 2d 616
(CAD C.), affd sub nom. International Ladies' Garment Workers' Union v. N L R.B.,
366 U.S. 731. See, also, The Crossett Company, 140 NLRB 667. Although the Board
did not adopt the finding of the Trial Examiner that the union also violated Section
8(b) (2) of the Act, it did not do so because such a violation had not been alleged or
litigated. See, also, Dancker & Sellew, Inc., 140 NLRB 824, enfd sub nom. Local 210,
International Brotherhood of Teamsters, etc., 330 F. 2d 46 (C A. 2).
38 See footnote 21.
3z In their motion to dismiss, filed December 18, 1963, and renewed at the hearing,
Respondents allege, among other grounds, that the Licensees, including Luigi's, ceased to
operate at the Center, on or about December 1, 1963, and were not expected to resume
operations until March 1964 This is entirely consistent with the evidence, which in-
dicated that the operations were of a seasonal nature, the Center closing down from
about December to March. Luigi's license for a term of 3 years does not expire until
May 31, 1966, and it is evident that the seasonal nature of the operations was taken into
consideration when the licenses were executed Respondents further urged in their
motion that Luigi's was "delinquent in lease payments," and that "it is speculative
whether [Luigi's] will reopen or will be permitted to reopen . . . [and that] it would
not effectuate the purposes of the Act to proceed . . . in this matter, as no relief is re-
quired or can be given." No evidence was offered in support of this allegation and, in
any event, I regard the circumstances concerning Luigi's alleged delinquency immaterial
to any of the issues Since this contention was not urged at the hearing, it is assumed
that this ground for the motion has been abandoned Moreover, the allegations, even
if proven, afford no justification for the commission of the unfair labor practices in which
Respondents have been found to have engaged, and I conclude that the policies of the
Act will be best effectuated by a determination of the issues on the merits.
38111 view of the active participation by Feldman, president of the Local Joint Board,
in the unfair labor-practices engaged in by the business agents of the Locals, and the
formal action taken by the Joint Board with regard to authorization of the picketing,
approval of the contract, and Feldman's presence during the picketing, the conclusion
is warranted that the Local Joint Executive Board and the Locals were acting in concert,
and are both responsible for the unfair labor practices found. See Hodcarriers and Con-
struction Laborers' Union Local 300, etc. (Fiesta Pools, Inc.), 145 NLRB 911. Feldman
admitted that the Local of which he was business agent did not even claim to represent
any employees of Luigi's in the classification under the jurisdiction of that Local.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended that they be ordered to cease and desist from engaging in such conduct, and
any like or related conduct, and take certain affirmative action necessary to effectuate
the purposes of the Act
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Century 21 Center, Inc., and Louis J. Ferrera, d/b/a Little Luigi's Italian Foods,
Seattle, Washington, as joint employers, are, and at all times mentioned herein, have
been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Respondents, Local Joint Executive Board, representing Cooks and Assistants
Local No. 33, Waiters Local No. 239, Waitresses Local No. 240 of Hotel and
Restaurant Employees and Bartenders Union, and each of said individual Locals,
are labor organizations within the meaning of Section 2(5) of the Act.
3. By executing and maintaining the collective-bargaining agreement dated
June 26, 1963, between Luigi's and the Union, covering the employees of Luigi's at a
time when the Union did not represent a majority of said employees in an appropriate
unit for the purpose of collective bargaining, and by including a union-security
provision in said contract, requiring membership in said Union as a condition of
employment, Respondents, and each of them, have restrained and coerced em-
ployees in the exercise of rights guaranteed in Section 7, thereby violating Section
8(b)(1)(A) of the Act, and have attempted to cause an employer to discriminate
against employees in violation of Section 8(a) (3), thereby violating Section 8(b) (2)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and upon the
entire record of the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I hereby recommend that Respondents, Local Joint Executive
Board, representing Cooks and Assistants Local No. 33, Waiters Local No. 239,
Waitresses Local No 240 of the Hotel and Restaurant Employees and Bartenders
Union, AFL-CIO, and each of said Locals, their officers, agents, and representatives,
shall-
1. Cease and desist from:
(a) Causing or attempting to cause Louis J Ferrera, doing business as Little
Luigi's Italian Foods, his agents, successors, or assigns, to discriminate against his
employees by giving effect to the collective-bargaining agreement between the Union
and said employer, dated June 26, 1963, or to any extension, renewal, or modification
thereof.
(b) Causing or attempting to cause Louis J Ferrera, doing business as Little
Luigi's Italian Foods, his agents. successois, or assigns, to discriminate against his
employees by conditioning their hire or tenure of employment or any term or condi-
tion of employment upon membership in, affiliation with, or dues payments to,
Respondent Unions, except as authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosures Act of 1959.39
(c) In any other manner restraining or coercing employees of said employer in the
exercise of the rights guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find will effectuate the policies of
the Act
(a) Post at the offices and meeting halls of the Local Joint Executive Board, and
Cooks and Assistants Local No. 33, Waiters Local No. 239, Waitresses Local No. 240
of the Hotel and Restaurant Employees and Bartenders Union, AFL-CIO, copies of
the attached notice masked "Appendix A " 40 Copies of the notice, to be furnished
as Since neither the Center nor the Licensees have been named as respondents no remedy
may be imposed against them in this proceeding.
w In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
LOCAL JOINT EXECUTIVE BOARD, ETC. 409
by the Regional Director for Region 19, shall, after being duly signed by the author-
ized representatives of each of said Respondents, respectively, be posted by them
immediately upon receipt thereof, and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by them to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for Region 19 signed copies of the attached
notice marked "Appendix A" for posting by Louis J. Ferrera, doing business as
Little Luigi's Italian Foods, if willing, in conspicuous places, including all places where
notices to employees are customarily posted, for 60 consecutive days. Copies of said
notice, to be furnished by the Regional Directoi, shall, after being duly signed by
authorized representatives, respectively, of each of said Respondents, be forthwith
returned for such posting.
(c) Notify the said Regional Director, in writing, within 20 days from the date of
the receipt of this Decision and Recommended Order, what steps Respondents have
taken to comply herewith 41
"In the event this Recommended Order be adopted by the Board, this provision shall
be modified to read "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps Respondents have taken to comply heiewith "
APPENDIX A
NOTICE TO ALL MEMBERS OF LOCAL JOINT EXECUTIVE BOARD, REPRESENTING, AND TO
ALL MEMBERS OF, COOKS AND ASSISTANTS LOCAL No. 33, WAITERS LOCAL No. 239,
WAITRESSES LOCAL No. 240 OF THE HOTEL AND RESTAURANT EMPLOYEES AND
BARTENDERS UNION, AFL-CIO, AND TO ALL EMPLOYEES OF LOUIS J. FERRERA,
DOING BUSINESS AS LITTLE LUIGI'S ITALIAN FOODS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that.
WE WILL NOT cause or attempt to cause Louis J. Ferrera, doing business as
Little Luigl's Italian Foods, his agents, successors, or assigns, to discriminate
against his employees by giving effect to the collective-bargaining agreement
between said employer and our Unions, dated June 26, 1963, or to any extension,
renewal, or modification thereof.
WE WILL NOT cause or attempt to cause Louis J. Ferrera, doing business as
Little Luigi's Italian Foods, his agents, successors, and assigns, to discriminate
against his employees by conditioning their hire or tenure of employment or any
term or condition of employment upon membership in, affiliation with, or dues
payments to, the said Unions, except as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting and Disclosure Act of
1959.
WE WILL NOT in any like or related manner restrain or coerce employees of
Louis J. Ferrera, doing business as Little Luigi's Italian Foods, in the exercise of
the rights guaranteed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
LOCAL JOINT EXECUTIVE BOARD
Dated------------------- By-------------------------------------------
(Representative) (Title)
COOKS AND ASSISTANTS LOCAL No. 33
Dated------------------- By-------------------------------------------
(Representative) (Title)
WAITERS LOCAL No. 239
Dated------------------- By-------------------------------------------
(Representative) (Title)
WAITRESSES LOCAL No 240 OF THE HOTEL AND RESTAURANT
EMPLOYEES AND BARTENDERS UNION, AFL-CIO,
Labor Organizations.
Dated------------------- By-------------------------------------------
(Representative) (Title)
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
Members and employees may communicate directly with the Board's Regional
Office, 327 Logan Building, Seattle, Washington, Telephone No. Mutual 2-3300,
Extension 553, if they have any question concerning this notice or compliance with
its provision.
Local 542, International Union of Operating Engineers, AFL-
CIO, and Rodney Laster, Business Representative and Ritter
Bros., Inc. Case No. 4-CC-318-2. June 24, 1965
DECISION AND ORDER
On April 2, 1965, Trial Examiner Sidney D. Goldberg issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in certain unfair labor practices and recommending
that they cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the Respondents filed exceptions and a supporting brief, the General
Counsel filed cross-exceptions and a supporting brief, and the Respond-
ents filed an answer to the General Counsel's cross-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 powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The parties, on November 16, 1964, entered into a stipulation whereby
they waived a hearing before a Trial Examiner and agreed that the
record of the United States District Court for the Middle District of
Pennsylvania on a hearing before said court on October 29, 1964, upon
petition of the Regional Director for Region 4 for injunctive relief
pursuant to Section 10(a) of the Act, be substituted in lieu thereof.'
The Board has considered the Trial Examiner's Decision, the excep-
tions and briefs, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner.
ORDER
Pursuant to 10(c) of the National Labor Relations Act, as amended,
the National Labor Relations Board hereby adopts as its Order the
Order recommended by the Trial Examiner, and orders that Respond-
ents, Local 542, International Union of Operating Engineers, AFL-
'On December 4, 1964, the Honorable William J. Nealon, United States District Judge
for that court, issued his memorandum and order granting the petition and enjoining
Respondents , pending final disposition of the charge herein by the Board , from the con-
duct alleged as unfair labor practices.
153 NLRB No. 41.