Chefs, Cooks, Pastry Cooks , Local 89 etc.

National Labor Relations Board - Board Decisions

Aug 3, 1965

154 N.L.R.B. 192 (N.L.R.B. 1965)

192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chefs, Cooks, Pastry Cooks and Assistants Union of New York,
Local 89, affiliated with Hotel & Restaurant Employees and
Bartenders International Union , AFL-CIO and Cafe Renais-
sance, Inc.
Bartenders Union of New York City, Local 15, affiliated with
Hotel & Restaurant Employees & Bartenders International
Union, AFL-CIO and Cafe Renaissance, Inc.
Dining Room Employees Union , Local 1 , affiliated with Hotel &
Restaurant Employees, and Bartenders International Union,
AFL-CIO and Cafe Renaissance , Inc. Cases Nos. 2-CP-29t'-1,
2-CP-292-2, and 2-CP-29?-3. August 3, 1965
DECISION AND ORDER
On May 19, 1965, Trial Examiner A. Norman Somers issued his
Decision in the above-entitled proceeding, finding that Respondents
had engaged in certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and recommending that
they cease and desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision and
a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the additions and modifica-
tions set forth below.'
Contrary to the Trial Examiner, we find that commencing about
February 8, 1965, Respondents engaged in organizational picketing
in violation of Section 8(b) (7) (C). We consider the organizational
picket sign carried from that date until the time of the hearing suffi-
cent evidence of an unlawful organizational object. Unlike the Trial
Examiner , we do not view picketing with such a sign for 21/2 months
as mere inadvertence . Accordingly, we find such picketing to be in
violation of Section 8 (b) (7) (C) of the Act 2
' We agree with the Trial Examiner's finding, to which no exceptions were filed, that
respondents violated Section 8(b) (7) (C) by engaging in recognitional picketing
2 We note, in this connection , that two employees had been solicited to join the
Respondents.
154 NLRB No. 14.
CITEFS, COOKS, PASTRY COOKS, LOCAL 89, ETC. 193
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondents, Chefs, Cooks, Pastry Cooks
and Assistants Union of New York, Local 89, Bartenders Union of
New York City, Local 15, Dining Room Employees Union, Local 1,
all affiliated with Hotel & Restaurant Employees and Bartenders
International Union, AFL-CIO, their officers, agents, and represent-
atives, shall take the action set forth in the Trial Examiner's Recom-
mended Order, as so modified :
Delete section 1 and substitute therefor the following :
"1. Cease and desist from picketing, or causing to be picketed, Cafe
Renaissance, Inc., or Cafe Renaissance 48th Corporation (hereinafter
collectively referred to as Renaissance or the Employer), New York,
New York, where an object thereof is forcing or requiring Renaissance
to recognize or bargain with said Respondents as representatives of
the employees of Renaissance, or forcing or requiring the employees
of said Employer to accept or select Respondents as their collective-
bargaining representatives, in circumstances violative of Section 8 (b)
(7) (C) of the Act."
Delete the two indented paragraphs in the Appendix attached to
the Trial Examiner's Decision and insert the following indented
paragraph :
WE WILL NOT picket or cause to be picketed Cafe Renaissance,
Inc., or Cafe Renaissance 48th Corporation (hereafter referred to
collectively as Renaissance or the Employer) New York, New
York, for an object of forcing or requiring Renaissance to recog-
nize or bargain with us as representatives of its employees, or forc-
ing or requiring the employees of Renaissance, to accept or select
us as their collective-bargaining representatives in violation of
Section 8(b) (7) (C) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner A. Norman Somers in New
York City on April 19 , 20, and 21, 1965, on the consolidated complaint of the
General Counsel issued December 29, 1964 (on charges filed December 3, 1964),
alleging that Respondent Unions picketed the Employer 's restaurants in violation of
Section 8(b) (7) (C) of the Act.1 The parties presented evidence and oral argument
i The complaint as issued December 29 alleged the picketing was "recognitional" in
purpose ( i.e., to force the Employer to recognize the Unions as bargaining representa-
tives of the employees of the two restaurants).
In the 10 ( 1) proceeding brought by the General Counsel for a restraining order, the
District Court, on January 11, 1965, pursuant to a stipulation between the General
Counsel and Respondents , entered a consent order restraining Respondents from picket-
206-446-66-vol. 154-14
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and waived filing of briefs. On the entire record and my observation of the witnesses,
I hereby make the following-
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Charging Party, Cafe Renaissance, Inc., is a New York corporation, which
for the past 11 years has owned and operated a restaurant at 338 East 49th Street,
and its recently formed affiliate, Cafe Renaissance 48th Corporation, has since Octo-
ber 1, 1964, owned and operated a restaurant at 15 East 48th Street, in New York
City. They have a common ownership and control. Stanley Radulovic, their presi-
dent, owns 80 percent, and Williard Swire, their secretary-treasurer, 20 percent of the
stock. The two stores are an integrated enterprise (to be hereafter referred to as the
Employer, or as Renaissance, or as Radulovic). It is supplied by the same sources
and is staffed by a personnel hired by one man, who lays down and administers the
working terms of all, and who frequently inteichanges the help between the two
stores. That is Radulovic, and to the personnel, he is the employer, the boss, or
Stanley (the proper and common noun being to them indistinguishable).
Since the commerce facts as detailed by Radulovic at the hearing were not con-
tested, there is no need to say more than that (with an appropriate annual projection
for the 48th Street store based on the first 5 months of its operation) the combined
annual revenue of both stores exceeds $500,000, and the value of the out-of-State-
origined provisions purchased by the enterprise exceeds $50,000 a year. It is accord-
ingly found that Renaissance, the Employer, is engaged in commerce within the
meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdic-
tion in this case.
IT. THE LABOR ORGANIZATIONS INVOLVED
The three Respondent locals are labor organizations affiliated with the Hotel &
Restaurant Employees and Bartenders International Unions, and the kind of occupa-
tions they respectively embrace is suggested in their titles-Local 89 for the food,
Local 15 for the drinks, and Local 1 for the tables.
III. THE UNFAIR LABOR PRACTICES
A. The picketing and its purpose and effect from October 1, 1964,
until the consent order of January 11, 1965
In the 11 years that Radulovic ran his nonunionized restaurant at 49th Street, he
had, so far as appears, been free of union overtures or, at least, pressures. With the
restaurant at 48th Street it was different even before it opened. Both are "Class A"
or "continental type" restaurants, bu., the new one was to be larger and on the plushier
side Whether (as appears from a suggestion in the record) because the competing
unionized establishments (as 90 percent of the restaurants in the area are) had taken
a jaundiced view of the competitive advantage to Radulovic in his freedom from
having to make contributions for welfare benefit coverage for employees of the kind
the unionized restaurants have to make, or otherwise, Respondents approached Radu-
lovic about "staff[ing]" his new store, which was due to open in about 2 weeks. In
September 1964. Ramon Molina and Emanuel David, respective business representa-
tives of Local 89 (Cooks) and Local 1 (Waiters), saw Radulovic together, and a few
days later John Farrell, business representative of Local 15 (Bartenders), came to
him alone. In each instance, they told Radulovic they wanted to "help" him "staff"
his new restaurant, and he told them he was "too busy" and to come some other time.
Farrell came again about 4 or 5 days before the 48th Street store opened. Accord-
ing to the undenied testimony of Swire, secretary-treasurer of Renaissance,2 Farrell,
not finding Radulovic in, told Swire the other two unions refused to wait until after
the store opened, but that he had prevailed on them to "hold off" until he had an
opportunity to win "Stanley" over "in a nice way." Farrell came back later that day
lug the stores at all until January 29. but permitting them from January 29 on to engage
in "informational" picketing on a highly restricted basis as to hours and number of
pickets This order is still in effect
On February 16, the General Counsel amended the complaint to allege that the picket-
ing, in addition to being for a recognitional purpose as originally alleged, was also
"organizational" (to compel the employees of Renaissance to accept Respondents as
their representatives)
2 Farrell was not called as a witness Neither was any other person who was named
in the case as being connected with Local 15.
CHEFS, COOKS , PASTRY COOKS , LOCAL 89, ETC. 195
when Radulovic was in . As Radulovic testified , Farrell asked him what he "had
decided as far as [his ] restaurant staff was concerned " ( supra, footnote 2). Radulovic
said he "had already staffed [his] restaurant , and that [he ] was not interested in hiring
any additional people." Radulovic also told Farrell that he was the "wrong man to
come to as far as union representation is concerned ," and "I suggested to Mr. Farrell
to talk to my employees but I personally am not interested ." Farrell said he was
"sorry that we couldn ' t work this out among ourselves ," and left. As Farrell walked
out, he said to Swire that "Stanley was still adamant and that it was too bad because
he couldn't hold off the other two unions and that they would be sure to put a picket
line in fiont of the restaurant."
All three did - from October 1, when the 48th Street store opened , until the suspen-
sion of all picketing pursuant to the consent order of January 11 (supra, footnote 1),
pickets of the three locals ( each with its own signs ) patrolled the front of that store,
in numbers ranging from 4 to 14. After a futile meeting with Radulovic and his
lawyer on October 16, Respondents , beginning October 20 , also picketed the 49th
Street restaurant in the same manner and for the same duration . As earlier stated
(sup)a, footnote 1), the General Counsel in his original complaint issued on Decem-
ber 29, alleged only that Respondents ' purpose was "recognitional ." On February 16,
after Respondents resumed picketing on the restricted basis provided in the consent
order, the complaint was amended alleging that the picketing was "organizational" in
purpose as well (supra, footnote 1). This will receive its due attention in the next
section . However, the record leaves little room for doubt of the recognitional pur-
pose. To be sure, the legends on the pickets signs, as the General Counsel indeed
concedes , were unexceptionably " informational" in language . As worded, they
appealed to the consuming public not to "patronize" Renaissance because its employ-
ees worked under conditions substandard to those prevailing in unionized stores in
the area and they were not members of Respondents . We may assume Respondents
had a sincere purpose to preserve area working standards and we may even assume
the truth of what the signs said about the substandard conditions . The essential
point is that the signs were not the whole truth disclosed by the record concerning
(a) Respondents ' purpose, or ( b) the character of the economic pressures exerted to
achieve it , or (c) the effects of the picketing in respect to deliveries . However simon-
pure the language of the signs , the independent evidence is all too clear that (a)
Respondents ' purpose was to force Radulovic to recognize them as representatives of
his employees at the 48th Street store, ( b) Respondents did not limit their appeal to
the consuming public but appealed to truckdrivers , as members of organized labor,
not to make deliveries to Renaissance , and (c ) the effect of the picketing was to inter-
rupt, indeed to stop, normal delivery to both stores in such abundance as in any
event to deprive Respondents of the shelter of the "informational" pioviso of
8(b)(7)(C).
The evidence need only be briefly sketched , since I rather doubt that Respondents
too seriously dispute liability under 8 (b) (7) (C) for their conduct preceding the
consent order of January 11. And, for reasons appearing in the next section , I rather
doubt that the General Counsel's representative would now too seriously urge that
Respondents had wittingly offended 8(b)(7)(C) when, during the resumed period, a
single Respondent fluffed on the language of one of its signs ( which is what inspired
the amendment made to the complaint on February 16) .3
1. Evidence of recognitional purpose independent of the picket signs
Meeting of October 16: As earlier stated, Respondents met with Radulovic and
his lawyer, Sandford Leeds , on October 16. According to Leeds' undenied testimony,
Farrell, had requested that Leeds "get Stanley to sit down with the unions and talk
the situation over" ( supra, footnote 2). Leeds informed Farrell he would appear the
next morning at 10 o'clock with Radulovic at the Wings Club of the Biltmore Hotel,
of which he is a member , and Farrell was to contact the unions-which he did. The
meeting on October 16 was attended by Radulovic and Leeds , and, for the unions, by
the three respective business representatives , Molina, David, and Farrell, and an
official of each Respondent-Arduilo Susi and David Siegal, respective presidents of
a If any issue can be said to exist at all, it is perhaps In respect to the remedial order,
not its substance , but Its words . Respondents would be content to have it read like the
District Court ' s consent order, but not so the General Counsel ' s representatives They
insist on a Board order in the "usual" form , that is to say, It would be all right with
them If Respondents continued to carry on as the District Court ' s consent order says that
they may, but it would distress them to have the Board 's order say that they may.
That momentous problem too will be faced in due course.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Locals 89 and 1, and Harry Bakst, vice president of Local 15. There is really not too
much difference over what occurred. The versions of Radulovic and Leeds, on the
one hand, are simply more complete than those of Siegal and Susi on the other.
Apart from the latter's being uncorroborated by the representatives of Local 15, who
did not testify (supra, footnote 2), their fragmentary accounts hardly commended
themselves to one's sense of probability. The versions of Radulovic and Leeds are
credited. In substance, Siegal said Respondents would remove the pickets if Radulo-
vic signed contracts with them. Attorney Leeds demurred because the employees
would resent being forced into a union, whereupon Siegal said they would "cross that
bridge" in due time, but that meanwhile Radulovic could sign a "memorandum of
agreement" that he would make contracts with them. Radulovic asked if he would
still retain his own power to hire and fire, and with a show of amusement, the unions'
representatives explained grievance and arbitration procedures to him. Siegal asked
Radulovic if he had ever seen one of Respondents' contracts, and when the answer
was no, offered to give him one, whereupon first he and then Susi of Local 89 handed
Attorney Leeds a form of contract for their respective unions. Radulovic said he
wanted to "sleep on the subject." Siegal said he "should not sleep too long." The
Bartenders' vice president then said that "while [Radulovic] was sleeping the unions
would not be sleeping," that they knew where he got his deliveries and "they would
see to it that [he] would no longer get these deliveries." With some anger, Radulovic
said to Siegal he "might sleep all winter." Siegal replied the union "would not be
sleeping all winter," and would see to it that Radulovic was "driven out of business
unless [he] sign a contract with those unions."
Statements to employees: While the picketing was going on, two employees, accord-
ing to their undenied testimony, were separately approached. Alfredo Hogen, a
bartender at the 48th Street store, testified that at about the end of October, as he was
leaving for home, Farrell approached him, explained all the benefits of union member-
ship to him, and said that about 2 weeks before, "Stanley didn't agree about signing a
contract with the union," that this was "too bad because he like[d] Stanley very
much, he had a nice place but if Stanley didn't sign a contract ... they would picket
the Renaissance as long as it was necessary until a contract was signed." Ramon
Palacios, also a bartender at "Renaissance 48," testified that during an afternoon in
mid-November, after the "rush" or lunch hour, a man waved to him through the
window, sat down at the bar, and showed him his card as Mr. Rojas, of Local 1
(Waiters). Rojas bought some drinks, which Palacios served him, and said he should
join the restaurant union because of its numerous benefits , which he described. Rojas
also said he was "here to help [Palacios]." Palacios asked why then were they picket-
ing the premises , since that reduced the employees ' earnings, and Rojas replied they
had to picket because "the boss don't want to sign the union contract," and they would
continue to do so until he did sign .4
Statements to representatives of Renaissance: Attorney Leeds and Secretary-
Treasurer Swire testified to like statements made to them concerning the purpose of
the picketing. Thus, Attorney Leeds (who used to greet and be greeted by the
respective business representatives on the picket line) testified that on a morning early
in November, Molina, of Local 89, and about four of the pickets gathered around him
near the 48th Street store in friendly fashion. Molina asked "if Stanley made up
his mind yet," and Leeds replied Radulovic was away on vacation. During the talk
they were joined by one "Phil," who was introduced to Leeds as a "troubleshooter"
for one of the unions. Other testimony (that of Swire and Don Anderson, an
employee at Renaissance 49) shows this to have been Phil Geisenheimer of Local 15.
Though it would appear from Anderson's testimony that Geisenheimer was acting as
a picket captain (Anderson testified he checked the pickets in and out as they came
on or left), and as later shown, he was most active in advancement of Respondent's
purpose to make the picketing effective (such as outright appeals to drivers of sup-
plies not to make the delivery, and complaints to authorities calculated to frustrate
Renaissance's efforts at alternative means of delivery), Local 15, as stated (supra,
footnote 2), put on no witnesses whatever, not even Business Representative Farrell
in denial or explanation of the statements attributed to him or Vice President Bakst
for his version of the October 16 meeting at the Biltmore Hotel, in which he was
directly implicated, or either of them in disclaimer, mitigation, or clarification of
Geisenheimer's connection with Local 15. This is so despite counsel's statement at
the hearing that he "know[s] who Phil is," and despite the fact that Geisenheimer
4 For its relevancy to the subject discussed in the next section, it is noted that al-
though these witnesses , well before the original complaint herein issued , had already
given pretrial statements concerning these conversations , the original complaint did not
ascribe to the picketing an organizational purpose.
CHEFS, COOKS, PASTRY COOKS, LOCAL 89, ETC . 197
acted with ostensible authority in manifest advancement of the common cause and
purpose of all three Respondents . Respondents resist imputability to them of Geisen-
heimer's role on the picket line under a conception of the rules of evidence as being
sworn to eternal hostility to the assumptions of common sense. But "the law has out-
grown its primitive stage of formalism " (Judge Cardozo in Wood v. Duff Gordon, 227
NY 88) with its anomalies that drew from the incredulous Bumble the critique that
"the law is a ass" (Dickens, C., Oliver Twist, ch. LI). Respondents' silence concern-
ing Geisenheimer where some explanation would normally be expected confirms the
inference that common sense would draw from the totality of Geisenheimer's activities
as variously described, namely, as I find, that he was acting for and on behalf of
Respondents in a role of which they were aware and which they embraced, and his
actions and statements are imputable to them.
In the conversation between Attorney Leeds and Business Agent Molina, Geisen-
heimer chimed in with a warning that Radulovic "better make up his mind in a hurry
because next week we start the rough stuff." Also, Geisenheimer approached Swire,
as the latter creditedly testified, "practically every day," whether at the 48th or the
49th Street store, and would constantly "ask [him] when Stanley is going to sit down
with the unions and couldn 't [Swire] persuade him to."
2. The picketing as a signal to truckdrivers not to make deliveries
and its actual effect in preventing deliveries
The picketing just about halted the delivery of supplies at both stores. To the
extent that that result fell short of being total, it was not due to any lack of effort
on the part of Respondents . Swire, who handles that end of the business for Renais-
sance, described the situation between October 1 and 20 , when only Renaissance 48
was picketed. Pickets would take down the name and license number on each truck
as it stopped to make a delivery. A picket would approach the driver and point to
the picket sign. The driver would then go on without making the delivery. In other
instances , a picket would ask the driver if he was a union man and if he was, the
picket told him, "Then you do not want to pass this line." Swire, for a while, tried
using his station wagon for picking up liquor and unloading it at 48th Street. The
alert Geisenheimer took down the station wagon 's tag number and reported Swire to
the police for unloading from a vehicle which did not have commercial tags. After
this and until the picketing was extended to 49th Street, all supplies for Renaissance
48 were delivered at 49 and "shuttled" by Renaissance personnel to 48. After Octo-
ber 20, what had been happening at 48 was now repeated at 49. In most instances,
the mere sight of the picket line was enough: truckdrivers would halt at the front
of the store and on seeing the signs moved on without making the delivery. Radu-
lovic so testified, and at the end of the case he was corroborated , interestingly enough,
by a witness for Respondents. This was Felix Garcia of Local 89. He had been put
on the picket line at 49 by Business Representative Molina. Garcia, an aging, unlet-
tered man (in English at least ), and not too attuned to the nuances of Respondents'
defense, on direct examination by counsel for Local 89 , in response to whether he
saw "any trucks refuse to make any deliveries at the 49th Street store," testified that
"someone go away because of-they see the picket-someone went away because he
saw the picket sign Local 89 .... The truck someone see our sign Local 89, they go
away with the truck .... Too many go, don't deliver. Too many because the union,
they see the sign."
Don Anderson, who tends bar at 49, testified to frequent instances where "pickets
wearing either of any of the signs [of Local] 1, 15, or 89 [would] approach drivers
and talk with them and the delivery wasn't made." Anderson testified to a conversa-
tion he had overhead ( albeit the union overture in this instance was not successful).
A driver of a truck for Standard Wine & Liquor Company stopped and began unload-
ing with his helper. Geisenheimer pulled up to them in his car, berated the driver
as "a hell of a union member," and protested that "they shouldn 't be making this
delivery." He also said he would report them to their unions. The driver said he
had already called his union and was told "to use [his ] own judgment ." Despite
Geisenheimer's pyrotechnics, this delivery was made.
To overcome the picket line barrier to deliveries at the restaurants , Renaissance
early in November leased an empty store about a half block down from the restaurant
at 49th Street. This necessitated its procuring an "outside warehouse permit" from
the State Liquor Authority and (under $5,000 bond) also a "commodity warehouse
permit" from the city. With two exceptions , no deliveries were accomplished there
either. Typifying the situation were two incidents, one involving a delivery of
Schweppes Tonic and the other of Coca Cola. In each instance, as the driver pulled
up near the empty store, a picket left the line at Renaissance 49, ran to the driver,
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and on verifying that the delivery was intended for Renaissance , told the driver that
"this little store" was picketed . In each instance , Swire disputed this, but the picket
insisted that the picketing applied to the empty store too . Swire then suggested that
the driver call his "local." The Schweppes driver reported back that his "delegate"
said he could use his own "judgment," and made the delivery . On the other hand, the
driver for Coca Cola, after the pause, "came back from the cigar store and said he
was not going to deliver, and, he drove away." The Coca Cola result was the typical
one, and after 5 days the leased store was abandoned . Renaissance then arranged
for deliveries at a bonded public warehouse, where the provisions were picked up by
a driver hired by Renaissance. After Renaissance received two large deliveries from
that source, that warehouse bowed out, because, as it stated, it "didn't want to get
in the middle of" a union fracas. Renaissance then turned to another public ware-
house, which it used until all picketing was suspended under the District Court's
consent order entered January 11 (and from January 29 was resumed under the
provision limiting all picketing, during the 8 a.m. to 5 p.m. day, to the nondelivery
hours of 12 to 2:30 p.m.).
3. Conclusion concerning conduct preceding the consent order
There is little need to labor the issue of Respondent's liability under Section 8(b)
(7) (C). The "informational" character of the picket signs did not relieve Respond-
ents of liability, since the independent evidence shows that information to the con-
suming public was not "the purpose" of Respondents. The evidence is all too clear
that "an object," indeed the pervading one, was the immediate one of having Renais-
sance capitulate to the demand to "sit down" and sign contracts with Respondents,
recognizing them as representatives of the respective employees. This appears from
the demand made October 16 that Radulovic either sign contracts with Respondents
or sign a "memorandum of agreement" to do so, under threat of halting all his deliv-
eries and driving him out of business if he did not, and from the statements by the
various representatives of Respondents on the picket line that "Stanley's" refusal to
sign a contract was the cause of the picketing. Additionally, the outright demands
by the various pickets and of picket captain Geisenheim on the truckers that as union
members they refrain from making deliveries shows that Respondents were not limit-
ing themselves to the permissive recourse of "appeal[ing] to the organized public for
spontaneous popular pressure upon an employer " but were resorting also to the pro-
hibited tactic of "invocation of pressure by organized labor groups or members of
unions, as such." N.L.R B. v. Local 3, International Brotherhood of Electrical
Woikeis (Jack Picoult), 317 F. 2d 193, 198 (C.A. 2). Respondents' picketing thus
"was not directed at achieving the limited purpose of communicating with the public,
but was also intended to be precisely that `signal ' to organized labor which Congress
sought to curtail." Local 3, International Brotherhood of Electrical Workers (Jack
Picoult), 144 NLRB 5, 8 (on remand from C.A. 2, supra). "Respondents' picketing
is [therefore ] not protected by the [informational picketing ] proviso of subsection
(C)." Ibid. And even if the purpose of the picketing had been solely for "the lim-
ited purpose of communicating with the public," it would still not have the shelter
of the subsection (C) proviso, because a substantial "effect of such picketing was to
induce [truckdrivers] employed by ... other person[s] in the course of [their] employ-
ment, not to ... deliver ... goods" to Renaissance . Since it had such an effect, the
conclusion follow[s] that the picketing . . . even if regarded as informational, was
violative of Section 8(b)(7)(C) of the Act." Chefs, Cooks, etc., Local 89 (Stork
Restaurant, Inc.), 135 NLRB 1173, 1174 [emphasis in original].
13. The situation from the time of the District Court's consent order of Janu-
ary 11: the claim that the picketing also had an organizational object
Under the consent order of January 11 (supra, footnote 1), there was (as the
parties called it) a "hiatus," under which picketing for any purpose was suspended
until January 29. From then on, during the business day of 8 a.m. to 5 p.m., picket-
ing by Respondents was limited to the period from 12 to 2 30 p.m. (when deliveries
are not ordinarily made) of a purely "informational" vintage, with one picket for
each local at both stores.
There is no claim that Respondents did not strictly adhere to the time restriction
or that since the "hiatus" any interruptions of deliveries were either attempted or had
resulted. (There were a few sporadic instances, three at most, when a delayed driver
arrived at either of the restaurants between 12 and 2 30, and the delivery would then
be made during a nonpicketing period of the day. The General Counsel, on the
record, disclaimed any significance for these purely fortuitous interruptions ) I had
CIIEFS, COOKS, PASTRY COOKS, LOCAL 89, ETC. 199
also assumed that there was no claim that the signs, which had concededly been purely
informational even before the hiatus, were other than that after it. I was told the
contrary when I asked for confirmation of my assumption at a late stage of the hear-
ing during Respondents ' case. The General Counsel's representative then informed
me that a photograph introduced into evidence early in the case, which was taken by
Radulovic on February 8, showed a picket for Local 1 carrying a sign appealing to
employees of Renaissance "to join our union for better wages , hours and working
conditions ," and that that prompted the amendment to the complaint made Febru-
ary 16 ( supra, footnote 1), which now alleged that the picketing was organizational
in purpose as well . Since the amendment ascribes that additional purpose to the
picketing from the beginning and makes no reference to the sign carried after the
hiatus, I had until then thought that the amendment simply reflected an additional
theory for the conduct preceding the hiatus , presumably based on the portions of the
testimony of employees Hogen and Palacios, who quoted the union representatives as
having expounded the benefits of union membership to them, in addition to having
told them the picketing would continue until the "boss " signed a contract . These two
employees had given their pretrial affidavit well before the original complaint issued
(supra, footnote 4), and presumably that portion of their conversations had not then
been deemed sufficient to warrant alleging an organizational purpose. The General
Counsel's representative indeed confirmed that the amendment was only made because
of the new sign carried by Local 1.
The exclamations with which opposing counsel greeted the relevation that that
was what was embraced by the amendment may have had a touch of thespis. But it
must be said that there was a hard core of merit in their plea of surprise Local 1's
business representative David testified the'sign was inadvertent and was caused by
a mixup of signs in the office during his illness. The situation fairly abounds in per-
suasive indication of inadvertence . It is most unlikely that Respondents, who even
before the hiatus had used only "informational" signs, would wittingly make them-
selves vulnerable on that score after the hiatus, most especially in the light of the
obvious pains they had taken to remove their conduct from even the possibility of
reproach . Before resuming picketing under the restrictions of the consent order, they
wrote Renaissance in separate letters identical in wording , disavowing any recogni-
tional claim and assuring Renaissance that the picketing , which was to be hereafter
confined to the nondelivery period of 12 to 2.30, "will be directed only at the public"
[emphasis supplied] to advise it of claimed substandard working conditions at Renais-
sance and of the nonunion composition of its personnel . My observation at the hear-
ing that it would have been the better part of wisdom-if only for the purpose of
defining the issue-to have consulted Respondents ' attorneys and asked for an expla-
nation of the sign in the light of the assurances in their letters ( copies of which
Respondents had sent to the Regional Office ) may well have the elements of hindsight
afforded to the second guesser. But the almost certain prospect that the sign would
have been removed on the instant of such an inquiry ( as Local I acted to remove it
the first day of the hearing when the photograph was introduced ) gives special point
to the failure to have taken that preliminary step here , aggravated as it was by the
failure of the amendment to show that it was based even in part on the posthiatus
sign, which is now revealed as the essence of the accusation it embodies . Assuming
an amendment thus made warrants being considered on the merits , the conclusion is
that the allegation that the picketing also had an organizational object is opposed to
the fair preponderance of the evidence considered as a whole.
The Government representative , during oral argument , conceded the virtue of
such specificity , but only in an "ancillary order ," and he distinguished the Second
Circuit's decision in the Stork case on that basis. ( The matter had come before the
court on appeal from the District Court's restraining order in a 10 ( 1) proceeding.)
Just why specificity serves a good purpose in an "ancillary order" and a bad one in
a permanent order was not explained. The only reason given is that an injunction
in the general language of 8(b)(7)(C) appears in "almost 99.9 percent of all cases
of similar nature." I would be interested in the reason for the departure conceded
for the residual one-tenth of 1 percent , as I would also be whether in the "almost
99.9 percent" on which counsel relies the issue here discussed was either raised or
considered by the Board. The general phraseology urged by Government counsel
leaves future issues concerning claimed violations to construction of an imprecise
command . But, as the Supreme Court observed in J. 1. Case Company v. N L.R.B.,
321 U.S . 332, 341 , "A party is entitled to a definition as exact as the circumstances
permit of the acts which he can perform only on pain of contempt of court " (Here
read: on pain of being charged with having overstepped the prohibition of the
mandate.)
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, to brush aside the Second Circuit's pronouncement as merely an inci-
dent of "ancillary relief" is to overlook the considerations which the Court was at
pains to explain called for the specificity it imposed. The considerations are so
basic as to repel the suggestion that the court thought their applicability to hinge
on whether the injunction was permanent or "ancillary." The Court, in its first
decision in Stork Restaurant said (280 F. 2d 760, at 764-765) :
However, to enjoin all picketing, even at times when deliveries would not be
made but where there is ample opportunity to convey information to consumers
and other members of the public, would seem to carry the scope of the injunc-
tion beyond what is contemplated by the Act.... In arriving at this conclusion
it is especially significant to note that the nature of the employer's business in
this case is such as to afford the opportunity for informational picketing at
times when the restaurant is open for business but when deliveries would not
be expected. To curtail the dissemination of information by the unions in a
manner approved by Section 8(b) (7) (C) at times when only consumers and
other members of the general public would be expected to be exposed to this
activity, is, we think, beyond what was intended to be prohibited by the Act,
and unnecessarily raises a constitutional question by its impact on the right of
free speech.
In its second Stork Restaurant decision (286 F. 2d 727, 730), the Court reaf-
firmed "the careful balancing of interests and the precision of mandate contem-
plated" by the first decision.
It may be that the position of government counsel is based on an apprehension,
however unarticulated, that a precise order leaves too little play for treating a future
situation-such as a possible indirection in attempted evasion of the spirit of the
injunction-which cannot now be foreseen. If that is so, the apprehension is
unfounded for two reasons: first, the precise definition of the forbidden and per-
mitted would, as it does in the present consent order, appear in the portion of the
order immediately after the portion which enjoins the repetition of the found offense
in the general language used by the Board in its own orders, and thus the order as
a whole is adequate to treat with any attempted evasion of its purpose; secondly,
just as the present consent order, as did the order in Stork Restaurant (286 F. 2d at
730), reserves to the Court the power to make such future changes "as justice may
require and to effectuate the purposes of the [Act]," so too does the Agency retain
a like power over its orders. This is so even after the court enforcement, if not
inherently so (see American Chain & Cable v. F. T. C., 142 F. 2d 909 (C.A. 4) ),
then indisputably so where the order "by its terms require[s] modification should
conditions change." International Union of Mine Mill & Smelter Workers v. Eagle
Picher Co., and N.L.R.B. 325 U.S. 335, 341. The Board has, indeed, beginning
with Fairmont Creamery Company, 64 NLRB 824, 830, expressly reserved the
right to make such changes in its orders as future conditions might indicate to be
necessary.
A recommended order will accordingly be framed in accordance with the princi-
ples above articulated.
On the foregoing findings and the entire record, I state the following:
CONCLUSIONS OF LAW
1. By picketing Renaissance with an object of forcing said Employer to recognize
or bargain with them as representative of its employees, without having filed a peti-
tion under Section 9(c) within a reasonable period of time, Respondents engaged
in unfair labor practices within the meaning of Section 8(b)(7)(C) of the Act
2. The said unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and upon the entire record, and
pursuant to Section 10(c) of the Act, it is hereby ordered that Respondents, Chefs,
Cooks, Pastry Cooks and Assistants Union of New York, Local 89; Bartenders
Union of New York City, Local 15; and Dining Room Employees Union, Local 1,
all affiliated with Hotel & Restaurant Employees and Bartenders International Union,
AFL-CIO, their officers, representatives, and agents, shall:
CHEFS, COOKS , PASTRY COOKS , LOCAL 89, ETC. 201
1. Cease and desist from picketing or causing to be picketed Cafe Renaissance,
Inc., or Cafe Renaissance 48th Corp. where an object thereof is forcing or requir-
ing said Employer to recognize or bargain with said Respondents as representatives
of the employees of said Renaissance.
Provided , however, that this order shall not be construed to prohibit any picketing
or other publicity for the purpose of truthfully advising the public ( including con-
sumers ) that said Employer, Renaissance , does not employ members of, or have a
contract with, a labor organization , unless an effect of such picketing is to induce
any individual employed by any other person in the course of his employment, not
to pickup , deliver, or transport any goods or not to perform any services ; provided
further, that there shall not be more than one picket on behalf of each Respondent
at any one time at each of the restaurants operated by said Employer , Renaissance;
and provided further, that there shall be no picketing for any purpose between the
hours of 8 a.m. to 12 p.m . and 2.30 to 5 p.m., during which hours deliveries are
normally made.
2. Take the following affirmative action, which it is found will effectuate the poli-
cies of the Act.
(a) Post, in conspicuous places, in Respondents ' business offices, meeting halls,
and places where notices to their members are customarily posted, copies of the
attached notice marked "Appendix ." 5 Copies of said notice , to be furnished by
the Regional Director for the Region 2, shall, after being duly signed by the author-
ized representatives of the Respondents , be posted by the Respondents immediately
upon receipt thereof, and be maintained by them for 60 consecutive days from the
date of posting . Reasonable steps shall be taken by the Respondents to insure that
said notices are not altered , defaced, or covered by any other material.
(b) Mail or deliver to the said Regional Director copies of the aforementioned
notice for posting ( if willing ) by said Employer , Renaissance , where notices to
employees are customarily posted. Copies of said notice , to be furnished by the
said Regional Director , shall, after being signed by the Respondents , as indicated,
be forthwith returned to the Regional Director for disposition by him.
(c) Notify said Regional Director , in writing , within 20 days from the receipt of
this Decision , what steps have been taken to comply herewith.s
The right is hereby reserved to make, upon notice duly given, such modifications
of the order as future circumstances indicate to be necessary in the interest of justice
and in order to effectuate the policies of the National Labor Relations Act.
5 If this Recommended Order is adopted by the Board , the words "a Decision and Order"
shall replace " the Decision and Recommended Order of a Trial Examiner " in the notice.
In the event of court enforcement , the words , "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order "
e If this Recommended Order Is adopted by the Board , the notice will be within 10 days
from the date of the Board 's Decision and Order . In the event of court enforcement,
it will be within 10 days from the date of the Court 's Decree.
APPENDIX
NOTICE TO ALL OUR MEMBERS AND ALL EMPLOYEES OF CAFE RENAISSANCE, INC.
AND CAFE RENAISSANCE 48TH CORP.
Pursuant to the Decision and Recommended Order of a Trial Examiner of the
National Labor Relations Board , and in order to effectuate the purposes of the
National Labor Relations Act, as amended , we hereby give notice that:
WE WILL NOT picket or cause to be picketed Cafe Renaissance , Inc., or Cafe
Renaissance 48th Corp ., where an object thereof is forcing Renaissance to rec-
ognize or bargain with us as representatives of the employees of Renaissance.
Provided , however , that the above shall not be taken to mean that we may
not picket or use other publicity for the purpose of truthfully advising the pub-
lic (including consumers ) that Renaissance does not employ members of, or
have a contract with, a labor organization , unless such picketing results in inter-
ruption of deliveries to Renaissance , and provided further, that we shall not
have more than one picket for each local at any one time at each of the res-
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taurants of of Renaissance , and that we shall refrain from picketing for any pur-
pose between 8 a.m. and 12 p.m. and 2:30 to 5 p.m., when deliveries are nor-
mally made.
FOR THE FOLLOWING AFFILIATES OF HOTEL & RESTAURANT
EMPLOYEES AND BARTENDERS INTERNATIONAL UNION,
AFL-CIO,
(1) LOCAL 89, CHEFS AND COOKS UNION OF N.Y.,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
(2) LOCAL 15, BARTENDERS UNION OF N. Y. C.,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
(3) LOCAL 1, DINING ROOM EMPLOYEES UNION,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fifth
Floor, Squibb Building , 745 Fifth Avenue, New York, New York , Telephone No.
751-5500 , if they have any questions concerning this notice or compliance with its
provisions.
1. Posner, Inc., Posner Distributing Corp ., and Posner Beauty and
Barber Supply Corp .' and District 65, Retail, Wholesale and De-
partment Store Union , AFL-CIO. Case No. 29-CA-14 (formerly
2-CA-7270). August 3,1965
SECOND SUPPLEMENTAL DECISION AND ORDER
On October 30, 1961, the National Labor Relations Board issued a
Decision and Order in the above-entitled case, finding that the
Respondent had discriminated against certain named employees in
violation of Section 8(a) (1) and (3) of the National Labor Relations
Act, as amended .2 Thereafter, the Board's Order was enforced by
the United States Court of Appeals for the Second Circuit, and a
decree was entered on July 3, 1962, against the Respondent .3 The
decree provided, inter alia, that Respondent make whole the employ-
ees named therein for any loss of pay suffered by reason of Respond-
ent's discrimination against them.
On December 21, 1962, the Regional Director for the National Labor
Relations Board for Region 2 issued a backpay specification and the
Respondent filed an answer and amended answers thereto. Upon
i Hereinafter referred to collectively as Posner or the Respondent.
2133 NLRB 1567.
8 N.L.R.B. v. I. Posner, Inc., et at., 304 F. 2d 773 (C.A. 2).
154 NLRB No. 15.