Pickle Bill's, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1977

229 N.L.R.B. 1091 (N.L.R.B. 1977)

PICKLE BILL'S, INC.
Pickle Bill's, Inc. and Hotel, Motel, Restaurant
Employees and Bartenders International Union,
Local 10, AFL-CIO, Petitioner. Case 8-RC-
10045
June 2, 1977
DECISION AND DIRECTION OF
ELECTION
Upon a petition filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held on September 9, and a reopened
hearing on October 10, 1975, before Hearing Officers
Bert Lewis and Paula J. Choate, respectively.
Following the hearing, and pursuant to Section
102.67 of the National Labor Relations Rules and
Regulations and Statements of Procedure, Series 8,
as amended, and by direction of the Regional
Director for Region 8, this case was transferred to
the National Labor Relations Board for decision.
The Board has reviewed the rulings of the Hearing
Officers made at the hearings and finds that they are
free from prejudicial error. They are hereby affirmed.
1. The Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The Employer operates a restaurant-bar-night club
in Cleveland, Ohio, furnishing its customers with
food, drink, and entertainment. It purchases both
food and liquor which comes from points outside the
State of Ohio and hires out-of-state entertainment
acts. Its annual gross revenues are at least $225,000
per annum.1
The Board has already asserted jurisdiction over
these operations because of actions of the Employer
relating to the hearing in this proceeding. At the
initial hearing in this case, two of the Employer's
employees testified to the amount of the Employer's
business, giving testimony based on estimates of the
number of customers served on various nights of the
week, the size of the average bill per customer, and
the like. Such testimony, given in the absence of
Employer's witnesses, tended to show that the
Employer's operations satisfied the Board's jurisdic-
tional standards for restaurants and retail operations.
The employees were discharged. They filed charges
with the Board alleging they were discharged because
they testified at the hearing in support of the Union's
petition for an election, and the Board asserted
jurisdiction in the subsequent unfair labor practice
proceeding to hear and decide those issues. 2 The
Board did so because:
The Board normally declines to assert jurisdiction over restaurants
which have annual gross revenues of less than $500,000. Carolina Supplies
and Cement Co., 122 NLRB 88 (1958); Restaurant & Tavern Owners
Association of Salem, 126 NLRB 671 (1960).
2 224 NLRB 413 (1976).
229 NLRB No. 150
public policy requires the Board to assert jurisdic-
tion for the purpose of remedying the Respon-
dent's unlawful interference with the statutory
right of all employees freely to resort to and
participate in the Board's processes. [Robert
Scrivener, d/b/a A A Electrical Co., 177 NLRB 504
(1969).]
Though the Board found violations of Section
8(a)(4), the evident purpose of which was to
discourage employees support of the Union's resort
to Board processes to obtain representation rights, it
refused to consider and determine related issues
concerning whether the Employer also violated
Section 8(a)(3) and (1) with respect to its dealings
with these employees and their efforts to obtain
union representations That action was contrary to
precedent, 4 and were we to allow it to control our
action in this proceeding, we would leave the
Employer, loser in the 8(a)(4) skirmish, in control of
the battlefield.
The Employer argues for dismissal of this petition
because its operations do not satisfy the Board's
jurisdictional standard for restaurants and retail
operations. But those standards do not bind the
Board absolutely. As the court stated in N.L.R.B. v.
Marinor Inns, Incorporated, 445 F.2d 538. 541 (C.A.
5, 1971.):
. . . even where the Board, in asserting jurisdic-
tion, has violated, on an ad hoc basis, its self-
imposed jurisdictional guidelines, it has been held
that absent "extraordinary circumstances" the
courts should not intervene. N.L.RB. v. WGOK,
5 Cir. 1967, 384 F.2d 500; N.L.R.B. v. National
Survey Serv., Inc., 7 Cir. 1966, 361 F.2d 199;
N.L.R.B. v. Carroll-Naslund Disposal, Inc., 9 Cir.
1966, 359 F.2d 779; N.L.R.B. v. Carpenters Local
2133, 9 Cir. 1966, 356 F.2d 464; N.LR.B. v. W. B.
Jones Lbr. Co., 9 Cir. 1957, 245 F.2d 388.
Nor do we need rely solely on that line of cases. For
we find that assertion of jurisdiction herein for the
purposes of conducting an election and regulating
the bargaining relationship, if any, which arises, is
necessary to give full scope and effect to our
protective order issued in the unfair labor practice
proceedings. Accordingly, we shall assert jurisdic-
tion.
2. The Petitioner, Hotel, Motel, Restaurant Em-
ployees and Bartenders International Union, Local
3 Member Fanning dissented from the refusal to consider the 8(aX I) and
(3) issues.
4See Children's Baptist Home of Southern California, 215 NLRB 303. 305
(1974), overruling in pertinent part Robert Schrivener, d/h/a A A Electric
Co.. 177 NLRB 504(1969).
1091
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10, AFL-CIO, is a labor organization claiming to
represent certain employees of the Employer.
3. A question of representation affecting com-
merce exists concerning the employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All waiters, waitresses, bus help, cooks, kitchen
help, bartenders, porters, dish washers, doormen,
and all other employees employed at the Employ-
er's restaurant in Cleveland, Ohio, but excluding
all office clerical employees, professional employ-
ees, guards and supervisors as defined in the Act.
[Direction of Election omitted from publication.]5
MEMBER MURPHY, concurring:
I agree with Chairman Fanning and Member
Jenkins that the Board should take jurisdiction
herein inasmuch as we have already asserted jurisdic-
tion over this Employer in the prior case involving
violations of Section 8(a)(4) of the Act. In any
situation where the Board finds that an employer has
discharged or otherwise discriminated against em-
ployees for invoking or aiding the processes of this
Board, thereby violating Section 8(a)(4), I would
assert jurisdiction over that employer for all purposes
in order to give full protection to its employees from
any possible retaliation because of their resort to this
Board or the activity which led to their effort to
invoke our processes.
Accordingly, I agree with the other findings of my
colleagues and join in the direction of an election in
the stipulated unit, which I hope will be held as soon
as possible.
MEMBERS PENELLO and WALTHER, dissenting:
We disagree with our colleagues' decision to assert
jurisdiction over the Employer in this proceeding.
There is no showing that the Employer meets the
discretionary standard of $500,000 annual gross
revenue established by the Board for restaurants. In
addition, contrary to the claim of our colleagues,
there is no extraordinary circumstances present here
which would otherwise warrant our assertion of
jurisdiction.
Petitioner in this representation proceeding seeks
to represent a unit of restaurant employees. At the
initial hearing, two waitresses called as witnesses by
5 Excelsior footnote omitted from publication.
6 See City Line Open Hearth, Inc., 141 NLRB 799 (196%3), which sets forth
the Board's current S500,000 discretionary standard for exercising jurisdic-
tion over restaurants. Our colleagues do not rely on evidence adduced at the
Petitioner gave testimony which tended to indicate
that the Employer's gross volume of business was in
excess of $500,000 per year. The Employer did not
appear at the first hearing and was not represented
by counsel, due to lack of notice. Thus, a second
hearing was held during which the Hearing Officer
read into the record figures from the Employer's
profit-and-loss statements for each month of 1974.
These figures indicated that the Employer's gross
volume of business was about $224,690. The Employ-
er presented testimony that its gross receipts for 1975
would be about the same as 1974. In view of such
evidence, the Board's normal practice would have
been to dismiss the petition on the basis that the
Employer does not satisfy our discretionary standard
for the assertion ofjurisdiction. 6
The parties herein have previously been before the
Board in an unfair labor practice proceeding, Pickle
Bill's, Inc., 224 NLRB 413 (1976). In that case the
complaint alleged violations of Section 8(a)(1), (3),
and (4) based upon actions taken by the Employer
herein in response to testimony offered by employees
in the first hearing in this proceeding. The Board
adopted the Administrative Law Judge's findings
that, while the Employer violated Section 8(a)(4), the
8(a)(1) and (3) allegations of the complaint had to be
dismissed because the Employer did not meet the
Board's applicable discretionary standard. Thus, in
the prior case the Board asserted jurisdiction over
this Employer for the limited purpose of protecting
employees who had been discharged for giving
testimony under the Act. The majority here con-
cludes, however, that the Board's limited exercise of
jurisdiction in the earlier case was contrary to
precedent. In their view, having asserted jurisdiction
over this Employer for purposes of the 8(a)(4)
allegations, not only should we have asserted
jurisdiction over the additional 8(a)(l) and (3)
allegations in that case, but should have asserted for
purposes of future representation proceedings such
as this one as well.
In the prior proceeding, the Board adopted the
Administrative Law Judge's finding that public
policy did not mandate assertion of jurisdiction over
the Employer with respect to the alleged violations of
Section 8(a)(1) and (3). In his analysis, the Adminis-
trative Law Judge relied on the Board's earlier
decision in Robert Scrivener 7 in which a distinction
was drawn between 8(a)(4) allegations on the one
hand and other 8(a) allegations on the other. Unlike
8(a)(4) allegations, 8(a)(1) and (3) allegations, for
example, do not relate to employees' freedom of
first hearing as establishing that the Employer's gross annual revenues meet
the Board's monetary standards. They do not-and indeed cannot-
conclude that the Employer has at any time met that standard.
I Robert Scrivener, d/b/a A A Electric Co., 177 NLRB 504 (1969).
1092
PICKLE BILL'S, INC.
access to Board processes which the Board guaran-
tees as against infringement by all employers within
its lawful, statutory jurisdiction.
The Board also adopted in the earlier proceeding
the Administrative Law Judge's conclusion that
Children's Baptist Home8 in no way jeopardized the
continuing viability of the Scrivener standards. In
that case, the Employer satisfied the Board's discre-
tionary jurisdictional standards at the time the
conduct cited in the complaint was committed.
Subsequent modifications in those standards, how-
ever, if applied to that Employer would have
deprived the Board of jursdiction. The Administra-
tive Law Judge in the earlier unfair labor practice
proceeding herein correctly observed that the hold-
ing of Children's Baptist Home is limited to the
proposition that:
the Board will assert its authority with respect to
any and all unfair labor practices committed by
an employer while covered by published jurisdic-
tional standards, even though those standards are
subsequently modified, so as to remove the
particular employer from the Board's discretion-
ary jurisdiction.
Children's Baptist Home in no way undermined the
Scrivener distinction between allegations which must
be processed to protect Board procedures from
unlawful incursion, and others bearing no relation-
ship to employee access to Board processes.9
In answer to the Employer's contention in this
proceeding that its operations do not satisfy our
discretionary jurisdictional standards, our colleagues
state that "those standards do not bind the Board
absolutely," thereby indicating their apparent view of
a general flexibility in the application of such
standards. However, in those cases which they cite
for this proposition, although the respective employ-
ers might not have met the discretionary standards in
all cases, there was at least a finding that the
operations in question, which combined with related
operations, had a sufficient impact on commerce to
warrant the assertion of jurisdiction. Furthermore,
8 Children's Baptist Home of Southern California, 215 NLRB 303 (1974).
9 The instant case quite obviously does not fall within the special
circumstances present in Children's Baptist Home. This is a representation
rather than an unfair labor practice proceeding, the relevant jurisdictional
standard has not been modified since the filing of the petition, and it has not
while the Board on occasion has departed from its
discretionary standards, it had done so where, as
indicated above, extraordinary circumstances exist-
ed. There are no such extraordinary circumstances
present here.
The majority, apparently realizing the weakness of
its position, does not rely solely on that line of cases
which it cites but additionally finds that the assertion
of jurisdiction herein is necessary "to give full scope
and effect to our protective order issued in the unfair
labor practice proceeding." The majority, however,
fails to explicate any rationale for its conclusion that
the Board's Order in Pickle Bill's is inadequate to
protect the employees involved therein. Rather, our
colleagues, engaging in sheer speculation and conjec-
ture, have raised the spectre of future retaliation
against employees by this Employer, and out of this
fiction conclude that the granting of representational
rights to the employees is not only warranted, but
necessary. Our colleagues' decision to assert jurisdic-
tion is thus based on an improper prejudging of this
Employer as having a proclivity to violate the Act,
and, even more incredibly, is made in a representa-
tion proceeding which is totally unrelated to any
unfair labor practice issues.
In conclusion, by asserting jurisdiction in this
representation proceeding the Board places itself on
both sides of the question. Thus, on the same facts on
which the Board exercised its discretion to assert
jurisdiction for the limited purpose of remedying the
unlawful interference with the employees' statutory
rights to resort to and participate in the Board's
processes, it now chooses to assert jurisdiction for the
broad and unrelated purpose of granting representa-
tional rights. Until this date the Board has had a
consistent basis for determining whether or not
jurisdiction would be asserted on which the public
could rely. Now, by their decision in this case, the
majority undermines the uniform administration of
the Act, and leaves our policy in a state of confusion.
Accordingly, we would dismiss the petition for lack
ofjurisdiction.
been established that the employees here in filing the petition acted to their
detriment based upon an assurance by the Board that they enjoyed the full
protection of the Act. Indeed, the prior decision is a clear indication that the
Board would not assert jurisdiction for purposes other than guaranteeing
access to our procedures.
1093