S. F. Executive Board, Culinary Workers

National Labor Relations Board - Board Decisions

Apr 26, 1972

196 N.L.R.B. 633 (N.L.R.B. 1972)

S.F. EXECUTIVE BOARD, CULINARY WORKERS
San Francisco Local Joint Executive Board of Culinary
Workers, Bartenders , Hotel, Motel and Club Service
Workers, AFL-CIO; Waiters and Dairy
Lunchmen's Union, Local No. 30 ; Bartenders' Un-
ion, Local No. 41 ; Cooks, Pastry Cooks & Assistants'
Union, Local No. 44; Waitresses & Cafeteria Em-
ployees Union, Local No. 48 ; Miscellaneous Culi-
nary Employees Union , Local No. 110; and Hotel,
Motel, Club, Office & Service Workers Union Local
No. 283 , and Coffee Cantata , Ltd. Case 20-CP-394
April 26, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On February 2, 1972, Trial Examiner David E. Da-
vis issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief in
support of the Trial Examiner's Decision.
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 considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Respondents, San Francisco Local Joint Executive
Board of Culinary Workers, Bartenders , Hotel, Motel
and Club Service Workers, AFL-CIO; Waiters and
Dairy Lunchmen's Union, Local No. 30; Bartenders'
Union, Local No. 41; Cooks, Pastry Cooks & Assist-
ants' Union, Local No. 44; Waitresses & Cafeteria
Employees Union, Local No. 48; Miscellaneous Culi-
nary Employees Union, Local No. 110; and Hotel,
1 Where Section 8(b)(7)(B ) has been violated , the Board 's usual practice is
to ban picketing for I year from the date on which the unlawful picketing
ceased . In accord with that practice , the ban against picketing shall run for
I year from July 2, 1971, the date on which , the record shows, Respondents
ceased picketing . Local Joint Executive Board of Las Vegas, Nevada, Namely
Culinary Workers, Local 226, and Bartenders Union, Local 165, affiliated with
Hotel, Restaurant & Bartenders ' International Union, AFL-CIO (Custom Ca-
tering, Inc.), 182 NLRB 250, 252, In. 10; Teamsters Local Union No. 5, a/w
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers,
Ind. (Barber Brothers Contracting Co., Inc.), 171 NLRB 30, 33.
633
Motel, Club, Office & Service Workers Union Local
No. 283, their respective officers, agents, and repre-
sentatives, shall take the action set forth in the Trial
Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
SATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner: This case was heard on
November 19, 1971,1 at San Francisco, California, pursuant
to a charge filed by Coffee Cantata, Ltd., herein called
Cantata, on June 15, amended on June 17,2 and a complaint
issued on June 28 by the Regional Director for Region 20
of the National Labor Relations Board, herein called the
Board The complaint, as amended at the hearing, alleged
that Respondents,3 pursuant to a joint plan, picketed from
about January 8 to July 2 for a recognitional or organiza-
tional object within the meaning of Section 8(b)(7) of the
National Labor Relations Act, herein called the Act. The
amended complaint further alleged that inasmuch as the
picketing continued after the Board on June 10 certified
that an election conducted on March 4 was a valid one,
Respondents were in violation of Section 8(b)(7)(B) of the
Act. Respondents , admitting the factual matters , argue that
the case should be dismissed because the Regional Director
refused to accept an informal settlement agreement which
they offered on June 17.
Upon the entire record 4 and in consideration of the
briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The complaint alleged and Respondents at the hearing
admitted that Cantata is a California corporation engaged
in the operation of a restaurant located in San Francisco,
California, where , during the past year , it received gross
revenues in excess of $500,000 and purchased and received
goods and materials valued in excess of $10,000 directly
from suppliers, including Max Sobel Wholesale Liquors,
d/b/a House of Sobel, located in California, who, in turn,
purchased and received said goods and materials directly
from points outside California.
Accordingly, it is found that Cantata, at all times material
herein , is an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleged and at the hearing Respondents
admitted that each of the named Respondents is a labor
organization within the meaning of Section 2(5) of the Act.
Hereafter all dates refer to the year 1971 unless otherwise specified.
s Copies of the original charge were served on Respondents on June 16 and
of the amended charge on June 17.
3 The Respondents are: San Francisco Local Joint Excutive Board of
Culinary Workers, Bartenders , Hotel, Motel and Club Service Workers,
AFL-CIO, herein sometimes referred to as Respondent Joint Board ; Waiters
and Dairy Lunchmen 's Union, Local No. 30; Bartenders ' Union, Local No.
41; Cooks, Pastry Cooks & Assistants' Union , Local No. 44; Waitresses &
Cafeteria Employees Union, Local No. 48; Miscellaneous Culinary Employ-
ees Union , Local No. 110; and, Hotel , Motel, Club, Office & Service Workers
Union Local No. 283.
The General Counsel's unopposed motion to correct the transcript in
certain particulars is granted.
196 NLRB No. 88
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE UNFAIR LABOR PRACTICES
A. The Stipulated Facts
At the hearing, the parties stipulated to the following
facts:
Stipulation 1:5 Respondents picketed the premises of Canta-
ta with a recognitional or organizational object within the
meaning of Section 8(b) (7) of the Act from January 8 to
July 2 with placards reading as follows:
ON STRIKE
COFFEE CANTATA
San Francisco Local Joint Board
of Culinary Workers, Bartenders, Hotel
and Club Service Workers
s s s s
COFFEE CANTATA
UNFAIR
DO NOT PATRONIZE
San Francisco Local Joint Board of
Culinary Workers , Bartenders, Hotel
and Club Service Workers
Stipulation 2:6 This stipulation refers to the report on objec-
tions issued by the Regional Director on March 30. The
report recites the fact that an election was conducted on
March 4 in Case 20-RD-69 involving Respondent Joint
Board and Cantata ; that Respondent Joint Board failed to
receive a majority of the votes cast ; that Respondent Joint
Board filed objections to the election on March 12,
amended on March 15 ; that the Regional Director upon
investigation concluded that the objections did not raise
substantial or material issues affecting the results of the
election and recommended that the Board overrule the ob-
jections and issue an appropriate certification of the results
of the election.
Stipulation 3: 1 This stipulation constitutes the Board 's deci-
sion and certification of results of election issued on June
10. In this decision , the Board considered briefs filed by the
parties and adopted the Regional Director 's findings and
recommendations . Accordingly, the Board certified the re-
sults of the election and found that Respondent Joint Board
was not the exclusive representative of Cantata's employees
in the appropriate unit.
B. The Issues
Having admitted by the foregoing stipulations that pick-
eting for a recognitional or organizational object continued
to July 2 after the Board's certification of the results of the
election on June 10, Respondents thereby admit that they
were in violation of the provisions of Section 8(b)(7XB) 8 of
s The parties clearly understood that this stipulation superseded the allega-
tions in the complaint and the answer thereto.
6 G. C. Exh. 2(a).
' G. C. Exh. 2(b).
8 Sec. 8(bX7)(B) makes it an unfair labor practice for a labor organization
to picket or threaten to picket as follows:
(7) to picket or cause to be picketed , or threaten to be picketed, any
employer where an object thereof is forcing or requiring an employer to
recognize or bargain with a labor organization as the representative of
his employees , or forcing or requiring the employees of an employer to
accept or select such labor organization as their collective bargaining
representative , unless such labor organization is currently certified as the
representative of such employees:
(B) Where within the preceding twelve months of valid election
under section 9(c) of this Act has been conducted
the Act. However, Respondents have in essence entered a
plea in avoidance in that they seek to avoid the usual reme-
dial requirements on the ground that the Regional Director
acted arbitrarily and capriciously by refusing Respondents'
offer to enter into an informal settlement agreement and
insisted that only a formal settlement agreement was accept-
able?
In view of the foregoing, it appears that the only issue
requiring my decision is as follows:
Was the Regional Director arbitrary and capricious when
he refused to accept Respondents' proffered informal settle-
ment agreement?
C. Analysis and Conclusions
In sum, Respondents argue that it is Board policy to
encourage settlement agreements and that here the Region-
al Director not only acted contrary to this policy but his
action in this case is inconsistent with its treatment of unfair
labor practice charges against employers . I rejected Respon-
dents Exhibit 5, a document apparently introduced to show
more favorable treatment extended to an employer in settle-
ment procedures . I affirm my rejection of this document as
I believe the evidence is completely irrelevant to this pro-
ceeding as it concerns another matter and a different set of
circumstances . Respondents' argument that the Regional
Director acted contrary to Board policy is quite unconvinc-
ing in that it neglects to consider the discretionary powers
vested in the Regional Director by the Board.1°
Fundamentally , an act that is arbitrary and capricious is
one that constitutes an abuse of discretion . Bouvier's Law
Dictionary defines abuse of discretion as follows:
A discretion exercised to an end or purpose not jus-
tified by and clearly against reason and evidence.
When measured against theforegoing criteria , the refusal of
the Regional Director to accept an informal settlement falls
short by a wide margin to qualify as abuse of discretion.
General Counsel's Exhibits 3 through 10 amply demon-
strate that the Regional Director 's discretion in the instant
case was exercised with due regard for the Board 's settle-
ment policies.
Having fully considered all of Respondents ' contention,
it is rather plain that Respondents ' could have placed them-
selves in much better posture had it voluntarily ceased pick-
eting when on June 17 it first offered to enter into an
informal settlement agreement.
I find that by continuance of the picketing from June 10
until July 2 for a proscribed objective , Respondents violated
Section 8(b)(7)(B) of the Act and that the Regional Director
by refusing an informal settlement did not act in an arbi-
trary and capricious manner.
Upon the basis of the foregoing findings of fact and the
entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Respondents , San Francisco Local Joint Executive
Board of Culinary Workers, Bartenders , Hotel, Motel and
Club Service Workers, AFL-CIO; Waiters and Dairy
Lunchmen's Union, Local No. 30; Bartenders ' Union, Lo-
cal No. 41; Cooks, Pastry Cooks & Assistants ' Union, Local
No. 44; Waitresses & Cafeteria Employees Union, Local
No. 48; Miscellaneous Culinary Employees Union, Local
No. 110; and Hotel , Motel , Club, Office & Service Workers
9 A formal settlement includes consent to a court decree.
10 Cf. Gimbel Brothers, Inc, 100 NLRB 870, 871.
S.F. EXECUTIVE BOARD , CULINARY WORKERS
Union Local No. 283 , are each labor organizations within
the meaning of Section 2(5) of the Act.
2. Coffee Cantata , Ltd., is an employer within the
meaning of Section 2 (2) of the Act and is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
3. All employees employed by Cantata at its San Francis-
co, California location , excluding office clerical employees,
guards, and supervisors as defined in the Act , constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. A valid election was held on March 4, 1971 , within the
appropriate unit referred to above in paragraph 3.
5. On June 10 , 1971, the Board , pursuant to the provisions
of Section 9(c) of the Act, duly certified that a majority of
valid ballots in the aforesaid election had not been cast for
Respondent Joint Board and that Respondent Joint Board
was not the exclusive bargaining representative of Cantata's
San Francisco, California , restaurant employees within the
meaning of Section 9 (a) of the Act.
6. By picketing from June 10 to July 2 , 1971, Respondents
have engaged in unfair labor practices within the meaning
of Section 8(b)(7)(B) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record and pursuant to Section 10(c) of
the Act , I hereby issue the following recommended:'
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
12 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted By
Order Of The National Labor Relations Board" shall be changed to read
"Posted Pursuant To A Judgment Of The United States Court Of Appeals
Enforcing An Order Of The National Labor Relations Board."
13 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read : "Notify
the Regional Director for Region 20, in writing , within 20 days from the date
of this Order, what steps the Respondents have taken to comply herewith."
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
ORDER
San Francisco Local Joint Executive Board of Culinary
Workers , Bartenders, Hotel , Motel and Club Service Work-
ers, AFL-CIO; Waiters and Dairy Lunchmen 's Union, Lo-
cal No . 30; Bartenders ' Union, Local No. 41; Cooks, Pastry
Cooks & Assistants Union, Local No . 44; Waitresses &
Cafeteria Employees Union, Local No . 48; Miscellaneous
Culinary Employees Union, Local No . 110; and Hotel, Mo-
tel, Club , Office & Service Workers Union Local No. 283,
their officers ,agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Picketing or causing to be picketed , or threaten to
picket or cause to be picketed , Cantata where an object
thereof is forcing or requiring Cantata to recognize or bar-
gain with it as the representative of the employees of Canta-
ta, or forcing or requiring the employees of Cantata to
accept or select it as their collective -bargaining representa-
tive , unless it is currently certified or the representative of
such employees where within the preceding 12 months a
valid election under Section 9(c) of the Act has been con-
ducted.
(b) In any like or related manner interfering with, re-
straining , or coercing Cantata's employees in the exercise of
their rights to self-organization , to form , join, or assist any
labor organization , to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any and all such activities.
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
(a) Post at their places of business in San Francisco, Cali-
fornia , and at the place of business of Cantata , (it being
willing), copies of the attached notice marked "Appen-
dix."' Copies of said notice , on forms provided by the Re-
gional Director for Region 20, shall after being signed by
the Respondents ' representative, be posted by the Respon-
dents immediately upon thereafter , in conspicuous places,
WE WILL NOT picket or cause to be picketed Coffee
Cantata, Ltd., with an object of requiring Coffee Can-
tata, Ltd., to recognize or bargain with us as the repre-
sentative of its employees, or forcing their employees to
accept or select us as their collective-bargaining repre-
sentative unless we are currently certified as the repre-
sentative of such employees where within the preceding
12 months a valid election has been conducted by the
Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees of Coffee Cantata,
Ltd., in the exercise of their right to self -organization,
to form , join , or assist a labor organization , to bargain
collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the
purpose of collective bar aining or other mutual aid or
protection, or to refrain from any and all such activi-
ties.
SAN FRANCISCO LOCAL JOINT ExEcu-
TIVE BOARD OF CULINARY WORKERS,
BARTENDERS , HOTEL, MOTEL AND CLUB
SERVICE WORKERS , AFL-CIO; WAIT-
ERS AND DAIRY LUNCHMEN 'S UNION,
LOCAL No 30 ; BARTENDERS' UNION,
LOCAL No . 41; COOKS , PASTRY COOKS
& ASSISTANTS' UNION, LOCAL No. 44;
WAITRESSES & CAFETERIA EMPLOYEES
UNION, LOCAL No. 48; MISCELLANE-
OUS CULINARY EMPLOYEES UNION, Lo-
CAL No. 110; and HOTEL, MOTEL,
CLUB , OFFICE & SERVICE WORKERS
UNION LOCAL No. 283
(Labor Organizations)
635
dents to ensure that said notices are not altered , defaced, or
covered by any other material.
(b) Notify said Regional Director , in writing , within 20
days from the receipt of this Decision , what steps they have
taken to comply herewith.13
including all places where notices to members are custom- Dated By
any posted . Reasonable steps shall be taken by Respon- (Representative) (Title)
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced by this notice or compliance with its provisions may be direct-
anyone. ed to the Board's Office, 13050 Federal Building, 450 Gold-
This notice must remain posted for 60 consecutive days en Gate Avenue, Box 36047, San Francisco, C4hfornia
from the date of posting and must not be altered, defaced, 94102, Telephone 556-3197.
or covered by any other material . Any questions concerning