Rusty Scupper

National Labor Relations Board - Board Decisions

Nov 29, 1974

215 N.L.R.B. 201 (N.L.R.B. 1974)

RUSTY SCUPPER 201
Borel Restaurant Corporation d/b/a Rusty Scupper,
Employer-Petitioner and Waiters , Waitresses and
Service Crafts Local No. 31 and Bartenders Union
Local 52 and Cooks Union Local 228. Case
20-RM-1785
November 29, 1974
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, 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 Earl D. Brand. Fol-
lowing the close of the hearing the Regional Director
for Region 20 transferred this case to the Board for
decision. No briefs have been filed.
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 rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer-Petitioner is engaged in commerce
within the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.'
2. Waiters, Waitresses and Service Crafts Local No.
31, Bartenders Union Local 52, and Cooks Union Lo-
cal 228, hereinafter referred to as the Unions, are labor
organizations within the meaning of the Act.
3. On August 12, 1974, the Employer-Petitioner filed
the instant petition contending that the Unions' picket-
ing of the Employer has a recognitional object and
therefore raises a question concerning representation.
The Unions dispute this, contending that the picketing
was purely informational in nature in that they have
not made a demand for recognition upon the Employer
and have disclaimed any interest in representing the
employees of the Employer.
On August 9, 1974, the Unions began picketing the
business premises of the Employer-Petitioner, and such
picketing continued at least until the time of the hear-
ing. The signs carried by the pickets, none of whom
were employees of the Employer, contained the follow-
ing language : "Consumers Please Boycott. Rusty Scup-
per does not hire union members. Bartenders Local 52 '
Cooks Union Local 228, Waiters, Waitresses and Ser-
vice Crafts Local 31, AFL-CIO. Please don't patro-
nize." The picketing occurred at customer and service-
employee entrances between the hours of 10.a.m. and
9:30 p.m. The Employer's business hours are from 11
a.m. to 9:30 p.m. As a result of the picketing, suppliers,
contractors, and delivery men have not crossed the
picket line to deliver supplies 'and perform services on
the Employer's premises. In addition,' there have been
complaints by customers of interference from the pick-
ets.
We disagree wtih the Unions' contention that their
picketing was wholly informational in, purpose, and
notwithstanding their disclaimer to the contrary, find
that one of the objects of the picketing herein was to
obtain recognition as the bargaining representatives for
the employee of the Employer. Though the picket signs
were addressed to the consuming public, it is clear that
the picketing itself was aimed beyond customers of the
restaurant to its employees, among others. As indicated
above, the picketing was conducted during nonbusiness
hours at service-employee entrances, as well as those
used by customers. That the Unions chose to picket
when the restaurant was not yet open to customers and
at entrances not used by them cannot be reconciled
with the alleged limited purposes of the picketing; i.e.,
of communication with the public.' Rather, we con-
clude that such picketing indicates an immediate inter-
est on the part of the Unions in organizing and repre-
senting the Employer's employees-an object already
implied by the "does not hire union members" legend
appearing on the picket signs.' Therefore, we find that
the Unions' picketing constitutes a present demand
for recognition and is inconsistent with their
disclaimer.5 Accordingly we find that a question af-
fecting commerce exists concerning the representation
of employees of the Employer-Petitioner within the
meaning of Section 9(c)(1) and Section 2(6) and (7) of
the Act.6
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for col-
lective bargaining within the meaning of Section 9(b) of
the Act:
All employees of the Employer at its 15 Embar-
cadero West, Oakland, California operation, ex-
cluding office clerical employees, guards and
supervisors as defined in the Act.
3 Local 3, International Brotherhood of Electrical Workers, AFL-CIO
(Jack Picoult), 144 NLRB 5 (1963 ), enfd 449 F 2d 600 (C A 2, 1964)
4 Local Joint Executive Board of Hotel and Restaurant Employees and
Bartenders International Union of Long Beach and Orange County, et at
(Crown Cafeteria), 135 NLRB 1183, affd sub nom Leonard Smittey, et at
v NL.R B, 327 F 2d 351 (CA 9, 1964)
5 Normandin Bros Company, 131 NLRB 1225 (1961)
i The Employer-Petitioner is one of a number of restaurants operated by 6 Cf Autohause-Brugger, Inc, 173 NLRB 184 (1968) In view of our'
the Borel Restaurant Corporation, which annually has gross revenues in finding herein, we do not reach the issue of whether the interruption of
excess of $ 500,000 and makes purchases of goods and materials valued in deliveries constitutes evidence of the existence of a question concerning
excess of $50,000 from outside the State of California representation
215 NLRB No. 78
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[ Director of Election and Excelsior footnote omitted
from publication.]
MEMBER FANNING , dissenting:
For the reason stated in my dissenting opinion in
Normandin Bros. , 131 NLRB 1225, 1227 ( 1961), I
would dismiss this petition . Although I agree with the
majority that the timing and location of the Union's
pickets did not confine the impact of the picketing to
consumers , the holding of an election in the face of a
union 's disclaimer of majority status is not, in my opin-
ion, warranted except under the provisions of Section
8(b)(7)(C), which has not been invoked in this case. In
view of the Union 's equivocal picketing I would other-
wise deny it representational rights as to these em-
ployees for a period of 12 months . It seems to me this
is preferable to holding an election where there has
been no claim to majority status and no demand for
recognition and where , as a consequence , the em-
ployees will be precluded from choosing another union
for that period of time . I believe that result cannot be
justified equitably or legally under the provisions of
Section 9(c)(1).