Rochelle's Restaurant

National Labor Relations Board - Board Decisions

Jun 9, 1965

152 N.L.R.B. 1401 (N.L.R.B. 1965)

ROCHELLE'S RESTAURANT, ETC. 1401
Queen 's Table, Inc., d/b/a Rochelle 's Restaurant,' Employer-
Petitioner and Local California Joint Executive Board of Hotel
and Restaurant Employees and Bartenders International Union
of Long Beach and Orange County , AFL-CIO.' Case No. 21-
Rh1I-1149. June 9,1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) (1) (B ) of the National
Labor Relations Act, as amended , a hearing was held before Hearing
Officer I . W. Ein. The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case , the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert juris-
diction herein.
2. Local California Joint Executive Board of Hotel and Restaurant
Employees and Bartenders International Union of Long Beach and
Orange County , AFL-CIO, is a labor organization within the mean-
ing of the Act.
3. The Employer seeks an election in a unit composed of its employ-
ees at its Long Beach, California , restaurant . The Union contends
that the petition should be dismissed because it has disclaimed any
interest in representing the employees who are the subject of the peti-
tion, and, therefore , no question concerning representation exists.
The Employer 's restaurant in Long Beach , California , known as
Rochelle's , opened for business on November 17, 1964. About a week
later, Ernest Geffroy, field representative of Culinary Union Local
681, an affiliate of the Union , informed William McLaughlin , manager
of the Employer 's restaurant , that the Union represented a majority
of the employees in the restaurant and asked that the Employer exe-
cute a collective-bargaining agreement prepared by the Union cover-
ing those employees . McLaughlin replied that he would take the
matter up with the officials of the Company and suggested that Geffroy
leave the contract with him. On or about November 28, Geffroy met
with Ben Rochelle , the Employer's president, and reiterated his
demand for a contract . Rochelle was noncommittal , but assured Gef-
froy that he would discuss the matter with his associates . Thereafter,
Rochelle was invited to appear on December 18 before the Los Angeles
Central Labor Council to explain his refusal to sign a contract, and he
was advised that if he did not sign an agreement by a certain date 3 his
' The name of the Employer -Petitioner , hereinafter referred to as the Employer , appears
as amended at the hearing.
The name of the Union appears as amended at the hearing
3 The record does not indicate the specific date mentioned by the Central Labor Council
152 NLRB No 143
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establishment would be picketed. Rochelle did not appear, however,
and the Central Labor Council accordingly authorized the Union to
picket the restaurant. On December 18, the Union notified the
Employer that it would be given until December 21 to sign a contract.
The Employer did not communicate further with the Union and, on
December 21, the Union began picketing the two customer entrances
of the Employer's restaurant. The signs carried by the pickets read :
Notice to
Members of Organized Labor and their friends
THIS
ESTABLISHMENT
IS
UNFAIR
We are
PICKETING
Because this establishment is attempting to break down our
standard of Wages, Vacations, Health, and Welfare, Work Day,
Work Week, Contracts, as paid by over 600 union establishments.
PLEASE DO NOT PATRONIZE
Hotel and Restaurant Employees Joint Board
A. F. of L.-C. 1. 0.
J. A. Hamilton, Secretary
As soon as the picketing commenced, according to the testimony of the
union representative, "most" of the employees who were members of
the Union stopped working.4 On December 28, the Employer filed the
instant petition, which alleges that the Union had presented a claim to
be recognized as representative of its employees. On February 11,
1965, the date of the hearing, the picketing was still in progress; the
legend on the picket signs had not changed; and most of the union
members employed at the restaurant were still refusing to cross the
picket line. At the hearing, the Union disclaimed any interest in rep-
resenting the employees of the Employer. The Union, although admit-
ting that prior to December 21, it sought immediate recognition, con-
tends in effect that on December 21 it abandoned such object and that
its only purpose in picketing was to advise the public of the Employ-
er's substandard working conditions.
Section 9(c) (1) (B) of the Act provides in substance that the Board
shall entertain an election petition filed by an employer when the
employer is presented with a claim for statutory recognition. How-
ever, the Board has long held that a union may properly withdraw its
claim to representation at the hearing on the employer's petition, and
thereby foreclose a determination that a question concerning repre-
* The record does not establish how many of the Employer's total complement of ap-
proximately 40 employees were members of the Union
ROCHELLE'S RESTAURANT, ETC. 1403
sentation exists, provided the union's disclaimer is clear and unequivo-
cal, and the union's conduct is not otherwise inconsistent with its dis-
claimer to representation. The question to be decided in each case is
whether the union has in good-faith disclaimed or whether its alleged
disclaimer is simply a sham and for that reason not to be given full
force and effect.,
On the basis of the record as a whole, we are unable to conclude that
the Union's purported disclaimer at the hearing effectively withdrew
its prior unequivocal claim for immediate recognition; rather, we find
that the Union's entire course of conduct is inconsistent with its
disclaimer.6 Thus, on several occasions between November 24 and
December 18, the Union demanded that the Employer sign a contract.
Although the Union contends that it gave up its recognitional object
on December 21, it did not inform the Employer of this asserted fact
until almost 2 months later at the time of the hearing. Nor did the
Union during the period between December 21 and February 11 make
any attempt to inform the public by handbills or otherwise that it was
no longer seeking immediate recognition. Moreover, although the
picketing was allegedly to advise the public of the Employer's sub-
standard working conditions, there is no evidence that the Union made
any attempt to inquire into the Employer's wage structure or working
conditions.7 Indeed, since the Union threatened the Employer with
picketing if it did not sign a contract, and since the Central Labor
Council authorized the picketing because Rochelle failed to appear
at the meeting to explain his refusal to sign the contract, it is apparent
that the picketing, which continued to and was in progress at the time
of the hearing and the purported disclaimer, was from its inception an
implementation of the Union's earlier bargaining demands."
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of certain employees of the Employer within
the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act.
5 See , for example , Peninsula General Tire Company , Inc, 144 NLRB 1459.
°Kenneth Wong, at al., Co -Partners S/b/a Capitol Market No. 1, Capitol Grocery, Inc,
d/b/a Capitol Market No. 2, 145 NLRB 1430
7 The record shows only that the Union "knew" that the Employer had no health and
welfare program and that one of its employees had worked up to 18 hours per day.
See Peninsula General Tire Company, Inc, supra, at 1461-1462.
B Martin 's Complete Home Furnishings, 145 NLRB 604, A ndes Candies, Inc, 133 NLRB
758, and Miratti's, Inc , 132 NLRB 699 , in which the Board accepted unions' disclaimers,
are distinguishable on their facts . In Martino's, almost 2 years had elapsed between
the union ' s last demand for recognition and the date of the hearing , here, on the other
hand, the Union 's last demand for recognition was less than 2 months prior to the hearing;
moreover , in Martino 's unlike here , the union continually disclaimed a present recognitional
objective in its leaflets to the public. In Andes Candies, unlike here, the employer had
never been presented with a claim to recognize the union. And in Maratta's, also unlike
here , the union , prior to the commencement of the picketing and before the hearing took
place , informed the employer that it was not seeking to represent its employees See
Kenneth Wong, at al., Co -Partners d/b/a Capitol Market , No. 1; et al ., supra at 1432,
footnote 5.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The parties stipulated, and we find, that the following employees
of the Employer constitute a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section 9 (b) of the Act :
All full-time and regular part-time employees who work 20 hours
or more per week as waiters, waitresses, bartenders, dishwashers, cooks,
miscellaneous kitchen helpers, hostesses, and cashiers at the Employ-
er's Long Beach, California, restaurant, but excluding all office clerical
employees, watchmen, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Women 's Bindery Union, Local No. 42 , International Brotherhood
of Bookbinders , AFL-CIO and National Publishing Division,
McCall Corporation . Case No. 5-CD-97. June 10, 1965
DECISION AND ORDER
Upon a charge filed on March 12 and amended March 19, 1964, by
National Publishing Division, McCall Corporation, hereinafter called
the Employer, the General Counsel for the National Labor Relations
Board, by the Regional Director for Region 5, issued a complaint dated
February 9,1965, against Women's Bindery Union, Local No. 42, Inter-
national Brotherhood of Bookbinders, AFL-CIO, hereinafter called
the Respondent, alleging that the Respondent had engaged in unfair
labor practices affecting commerce within the meaning of Section 8(b)
(4) (ii) (D) and Section (2) (6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge and the complaint with
notice of hearing were duly served upon Respondent and the Employer.
Thereafter, the Respondent filed an answer denying the commission of
any unfair labor practices.
Pursuant to the provisions of Section 3(b) of the Act, as amended,
the Board has delegated its powers in connection with this case to a
three-member panel [Chairman McCulloch and Members Fanning and
Brown].
With respect to the unfair labor practices, the complaint alleged, in
substance, that the Board, in a proceeding under Section 10 (k) of the
Act, had determined that the Washington Mailers' Union, No. 29,
affiliated with the International Typographical Union, AFL-CIO,
hereinafter called the Mailers, rather than the Respondent, was enti-
tled to perform the work in dispute, consisting of the inserting of more
than 1 and less than 21 copies of magazines into envelopes for mailing;
that the Respondent has refused to comply with the terms of the
Board's Decision and Determination of Dispute; that since on or about
152 NLRB No. 136.