Ogden Enterprises Ltd.

National Labor Relations Board - Board Decisions

Mar 11, 1980

248 N.L.R.B. 290 (N.L.R.B. 1980)

290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ogden Enterprises Ltd., Employer-Petitioner, and
Hotel, Motel & Restaurant Employees & Bar-
tenders Union, Local 471, AFL-CIO. Case 3-
RM-626
March 11, 1980
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Jon B.
Mackle.1 Following the close of the hearing the
Regional Director for Region 3 transferred this
case directly to the Board for decision. Thereafter,
the Employer filed a brief in support of its position.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudical error. They are hereby af-
firmed.
On the entire record in this case the Board finds:
I. The Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
it will effectuate the purposes of the Act to assert
jurisdiction herein. 2
2. Hotel, Motel & Restaurant Employees & Bar-
tenders Union, Local 471, AFL-CIO, hereinafter
referred to as the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
3. On May 15, 1979,3 Alfred E. McCormick,
president of the Employer, was contacted by
Robert Belanger, organizer for the Union, and a
tentative meeting was arranged. McCormick later
canceled the meeting and informed Belanger that
all further communication should be through the
Employer's legal counsel. By letter dated May 17,
the business manager for the Union advised the
Employer that the Union intended to picket and
I The petition, filed July 12, 1979, was dismissed by the Regional Di-
rector for Region 3 on July 26, 1979. Thereafter, the Employer filed a
request for review and supporting brief By direction of the Board,
Deputy Executive Secretary Robert Volger issued a ruling, dated Sep-
tember 19, 1979, reinstating the petition and remanding the case to the
Regional Director for Region 3 for further appropriate action.
2 Alfred E McCormick, president of the Employer, testified without
contradiction that the Employer is a New York corporation engaged in
the operation of a restaurant and bar in Albany, New York, and during
the past 12-month period its gross revenues from retail sales exceeded
$500,000 and during that same period it purchased in excess of $50,000
worth of goods which were received indirectly from outside the State of
New York
I All dates herein shall refer to the calendar year 1979 unless otherwise
specified.
248 NLRB No. 46
handbill the Employer's restaurant for the purpose
of advising the public that the Employer did not
have a labor agreeement with the Union. On May
21, the picketing commenced. The signs carried by
the pickets, none of whom was an employee of the
Employer, contained the following language: "To
the Public-Please-Do Not Patronize-Ogden's-
Ogden's Does Not Have a Labor Agreement With
Hotel, Motel & Restaurant Employees and Bar-
tender's Union, Local 471, AFL-CIO." The hand-
bills being distributed contained language identical
to that of the picket signs and, in addition, the fol-
lowing paragraph: "This Leaflet Is Directed To
the Consuming Public Only. Local 471 Is Not Re-
questing Any Person To Stop Work Or Refuse To
Pickup Or Make Deliveries At Ogden's."
On June 25, McCormick arranged, through an
intermediary, to meet with Belanger on June 29.
During the 3 days preceding the meeting there
were no pickets at the establishment.4 On June 29,
after the meeting, the pickets returned. Although
there is a dispute as to the extent to which the June
29 meeting concerned a contract between the Em-
ployer and the Union, there is no dispute that the
question of a contract did arise in the context of
McCormick's asking whether the picketing would
end if the Employer and the Union negotiated a
contract and Belanger indicated that it would.
On July 12, the Employer filed the instant peti-
tion. By a letter to the Regional Director for
Region 3, dated July 13, the Union disclaimed any
interest in representing the employees of the Em-
ployer; however, the Union informed neither the
Employer nor the public of its purported disclaim-
er.5
The picketing and handbilling has continued, the
language unchanged, from May 21 to date with the
only hiatuses being attributable to bad weather or
the unavailability of pickets. The picketing and
handbilling has been limited to the public entrance
of the restaurant and has taken place at various
times during normal business hours. The number of
pickets has varied, but there have been as many as
seven.
The Union contends that the picketing herein is,
and at all times has been, informational in character
and that, as such, it is sanctioned and allowable
under Section 8(b)(7)(C) of the Act. The Union
further contends that it has disclaimed any interest
in representing the employees of the Employer,
that is has not engaged in conduct inconsistent
* Belanger testified that there were no pickets available for these dates.
McCormick's undisputed testimony was that the Employer never re-
ceived any notice from the Union that they had disclaimed interest in
representing the employees of the Employer. Belanger testified that the
Union made no effort to notify the public that it had disclaimed interest
in representing the employees of the Employer.
OGDEN ENTERPRISES, LTD. 291
with its disclaimer, and that, consequently, there is
no question concerning representation within the
meaning of Section 9(c)(1) of the Act.
The Employer contends that the picketing herein
is, and always has been, tantamount to a present
demand for immediate recognition. In support of
its position, the Employer alleges that the Union
made a demand for immediate recognition at the
June 29 meeting, that the picketing continued un-
changed following the Union's purported disclaim-
er, and that the Union's conduct, taken as a whole,
indicates a present demand for immediate recogni-
tion.
The issue as to the validity of a disclaimer in the
circumstances such as presented here is one that
the Board is frequently called upon to resolve. In
our recent decision in McClintock Market, Inc.,6
the issue was presented in a factual context which
closely parallels the situation here. There the
Board found that, prior to the purported disclaim-
er, the union had made a demand for immediate
recognition and had picketed in support of that
demand. In finding the union's continued picketing
inconsistent with its disclaimer and concluding,
therefore, that the union's objective was still imme-
diate recognition, the Board relied upon the un-
changed nature of the picketing, the union's failure
to inform the public of the purpose of its picketing,
and the union's failure to inform the employer that
it was not seeking immediate recognition. The very
same conclusions could be drawn here, but there is
one important distinction between the two cases.
Here, the Employer's testimony that the Union de-
manded immediate recognition at the June 29 meet-
ing is denied by the Union. In McClintock Market,
Inc., however, the union did not appear at the
hearing and, therefore, the employer's testimony
was uncontradicted. Thus, the determinative issue
in the instant case is whether the Union's activity
prior to its disclaimer was tantamount to a present
demand for recognition.
In the instant case the only message contained in
the signs and leaflets was the fact that the Employ-
er did not have a contract with the Union. In his
testimony at the hearing, Belanger indicated that
^ 244 NLRB No. 85 (1979).
the Union's purpose in picketing the Employer was
to persuade the public to patronize restaurants
which had agreements with the Union. This pur-
pose is belied, however, by the fact that the Union
neither picketed all nonunion restaurants in the
downtown area nor did it attempt to inform the
public which downtown restaurants did have
agreements with the Union. Additionally, the
Union made no attempt to inform either the public
or the Employer that it was not seeking recogni-
tion. One fact which supports the inference of re-
cognitional objective arising from the language of
the signs and leaflets is that it was the Union's
chief organizer, not the business manager, who ini-
tially contacted and later met with the Employer
for the purpose of discussing the picketing. The
fact that as many as seven pickets patrolled the
single entrance to the Employer's restaurant also
supports the inference of recognitional objective.
On the basis of the above, we conclude that one
of the Union's objectives prior to its disclaimer was
immediate recognition and that it picketed the Em-
ployer in furtherance of that objective. This being
so, this case falls squarely within the rule of
McClintock Market, Inc., supra, and, accordingly,
we find that a question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1)
and Section 2(6) and (7) of the Act.
4. The following employees of the Employer
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(c)(1) of the Act:
All waiters, waitresses, busboys, bartenders,
barmaids, head bartenders, head waiters,
maitre d', host, hostess, cooks, pantrymen,
chefs, salad man and dishwashers excluding all
office clerical employees, manager, assistant
manager, and supervisors. 7
[Direction of Election and Excelsior footnote
omitted from publication.]
I This unit description is essentially as described in the petition and in
accord with the position taken by the Employer at the hearing. The
Union has expressed no opinion regarding the composition of the appro-
priate unit.
OGDEN TERPRISES, LTD. 91