S. F. Executive Board, Culinary WorkersDownload PDFNational Labor Relations Board - Board DecisionsApr 26, 1972196 N.L.R.B. 633 (N.L.R.B. 1972) Copy Citation 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 Copy with citationCopy as parenthetical citation