Bartenders & Culinary Workers Union

National Labor Relations Board - Board Decisions

Dec 2, 1966

161 N.L.R.B. 1458 (N.L.R.B. 1966)

1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion personnel in the Ladies Ready-to-Wear Department, Cosmetic Depart-
ment employees and watchmen/maintenance employees, but excluding
part-time employees working less than 15 hours per week, leased depart-
ment employees, commission personnel in the Furniture, Rugs, Fur
Appliance, Menswear, and Interior Decorating Departments, employees
of the Old Homestead House, Bedford, Massachusetts, confidential secre-
taries, professional employees, guards, supervisory trainees , department
heads, assistant buyers, assistant buyer trainees , buyers, and all other super-
visors as defined in Section 2(11) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of their rights guaranteed by Section 7 of the Act.
WE WILL bargain collectively with the aforesaid labor organization as the
exclusive representative of the employees in the appropriate unit, and, if an
understanding is reached, embody such understanding in a signed agreement.
A. G. POLLARD COMPANY,
Employer.
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 20th
Floor, John F. Kennedy Federal Building, Cambridge and New Sudbury Streets,
Boston, Massachusetts 02203, Telephone 223-33300.
Bartenders & Culinary Workers Union , Local No. 595 , Hotel &
Restaurant Employees and Bartenders International Union,
AFL-CIO and Arne Falk, Inc. Case 00-CC-552. December 0,
1966
DECISION AND ORDER
On July 19, 1966, Trial Examiner Arthur Christopher , Jr., issued
his Decision in the above -entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision . Thereafter Respondent filed exceptions to the Decision and
a supporting brief, and the General Counsel filed cross-exceptions
and a brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three -member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
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 briefs , and the entire record
161 NLRB No. 129.
BARTENDERS & CULINARY WORKERS UNION 1459
in this case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations, with the following modifications.
Paragraph 1 of the Trial Examiner's Conclusions of Law is
amended to read :
By inducing and encouraging individuals employed by Arne
Falk, Inc., Heath Neon Signs, Illinois Range Company, Robert
Cartage Company, Rivers Manufacturing Corporation, and
J. & M. Corp., to refuse in the course of their employment to
perform services for their employers, and by threatening, coerc-
ing, and restraining Arne Falk, Inc., Heath Neon Signs, Illinois
Range Company, Robert Cartage Company, Rivers Manufactur-
ing Corporation, and J. M. Corp., with an object in either case
of forcing each to cease doing business with Edwin G. Rossman,
and with an object of forcing or requiring Edwin G. Rossman
to recognize or bargain with Respondent as the representative
of his employees, although Respondent has not been certified as
the representative of such employees under the provisions of
Section 9 of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(b) (4) (1) and (ii) (B)
of the Act.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications:
[1. Substitute the following for paragraphs 1(a) and (b) of the
Trial Examiner's Recommended Order :
["1. Cease and desist from inducing or encouraging any individual
employed by Arne Falk, Inc., Heath Neon Signs, Illinois Range
Company, Robert Cartage Company, Rivers Manufacturing Cor-
poration, or J. & Al. Corp., or any other individuals employed in an
industry affecting commerce, to refuse, in the course of their employ-
ment, to perform any services, and from threatening, coercing, or
restraining the named employers, or any other person engaged in
commerce or in an industry affecting commerce, with an object in
either case of forcing or requiring Arne Falk, Inc., Heath Neon
Signs, Illinois Range Company, Robert Cartage Company, Rivers
Manufacturing Corporation, or J. & M. Corp., or any other employer
or person to cease doing• business directly or indirectly with Edwin
'The Trial Examiner ' s Decision is in error in two respects. In section III, B, the find-
ing that the Sheet Metal workers' business agent instructed the two members to leave
the construction site is not supported by the record evidence . In section III C , the Trial
Examiner appears to find that the Respondent sought strike sanction from the Building
Trades Council, of which it was not a member. The record shows that the request was made
of the Central Labor Council , to which Respondent does belong . Neither discrepancy
materially affects the validity of our findings and conclusions.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. Rossman, or of forcing or requiring Edwin G. Rossman to recog-
nize or bargain with Respondent as the representative of Rossman's
employees unless Respondent has been certified as such representative
pursuant to Section 9 of the Act."
[2. Substitute the following for paragraph 2(b) of the Trial
Examiner's Recommended Order:
[" (b) Sign and mail sufficient copies of said notice to the Regional
Director for Region 20, for posting by Arne Falk, Inc., Heath Neon
Signs, Illinois Range Company, Robert Cartage Company, Rivers
Manufacturing Corporation, J. & M. Corp., and Edwin G. Rossman,
such employers being willing, at all places where notices to their
respective employees are customarily posted."]
APPENDIX
-NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF ARNE FALK,
INC., HEATH NEON SIGNS, ILLINOIS RANGE COMPANY, ROBERT
CARTAGE COMPANY, RIVERS MANUFACTURING CORPORATION, AND
J. & M. CORP.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT induce or encourage any individual employed
by the employers named above, or any other individual employed
in an industry affecting commerce, to engage in a refusal in the
course of his employment to perform any services, nor will we
threaten, coerce, or restrain the employers named above, or any
other person engaged in commerce or in an industry affecting
commerce, where, in either case, an object is to force or require
the employers named above or any other employer to cease doing
business with Edwin G. Rossman or to cause another of the
named employers to cease doing business directly or indirectly
with Edwin G. Rossman, or to force or require Edwin G. Ross-
man to bargain with us unless we have been certified as exclusive
bargaining representative of Rossman's employees pursuant to
Section 9 of the Act.
BARTENDERS & CULINARY WORKERS UNION, LOCAL 595,
HOTEL & RESTAURANT EMPLOYEES AND BARTENDERS
INTERNATIONAL UNION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
BARTENDERS & CULINARY WORKERS UNION 1461
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.
If members have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, 13050 Federal Building, 450 Golden Gate Avenue,
Box 36047, San Francisco, California 94103, Telephone 556-3197.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on Septemer 15, 1965, by Arne Falk, Inc., herein called
Falk, a complaint was issued on November 18, 1965, alleging that Bartenders &
Culinary Workers Union , Local No. 595, Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO, herein called either the Union or Local
595, had engaged in unlawful - secondary boycott activities within the meaning of
Section 8 ( b)(4)(i) and ( ii)(B) of the Act by picketing the premises of Edwin G.
Rossman , a franchised operator of a McDonald's Carry-Out Restaurant, whose
employees Respondent did not represent , thereby inducing and encouraging per-
sons employed by Falk and other neutral persons to engage in a strike or a refusal
in the course of their employment to perform services for their respective employers
on the premises of Rossman , an object of said picketing being to force or require
Falk and the other contractors of Rossman to cease doing business with Rossman;
or to force or require the subcontractors of Falk or of the other neutral con-
tractors to cease doing business with Falk or with the neutral contractors in order to
require • Falk or the other neutral contractors to cease doing business with Ross-
man with the object of forcing or requiring Rossman to recognize or bargain with
Respondent as the representative of his employees , although Respondent had not
been ,certified as the representative of any employees of Rossman under the National
Labor Relations Act. Respondent filed an answer denying that its conduct was in
violation of the Act.
A hearing was held in this proceeding before Trial Examiner Arthur Christopher,
Jr., on March 29 and 30 , 1966, in San Francisco , California . All parties were repre-
sented and given a full opportunity to present evidence , to examine and cross-
examine witnesses , to argue orally, and to file briefs. At the conclusion of the hear-
ing, all parties waived the right to argue orally on the record. Thereafter, the
General Counsel and the Respondent each filed a brief.
Upon a consideration of the entire record 1 and the briefs , and from my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Arne Falk , Inc. has its principal office at Redwood City, California . During all
times material it has been a general contractor engaged in the construction busi-
ness. On or about April 20, 1965 , Falk was engaged in the construction of a struc-
ture known as McDonald 's Carry-Out Restaurant located at 12244 San Pablo
Avenue, San Pablo , California.
Edwin G. Rossman and his wife , copartners , during the summer of 1965 exe-
cuted an agreement with McDonald 's Systems of California Inc. and a sublease
agreement with Franchise Realty Interstate Corporation for the operation of the
aforementioned restaurant upon its completion . During 1965 , prior to the opening
of the restaurant business , Rossman purchased fixtures , equipment , and other goods
1 On June 1, 1966, the General Counsel filed a motion to correct the transcript of the
hearing In specified respects . A copy of the motion was served upon Respondent. In the
absence of any objection , I grant the motion and hereby direct that the corrections sought
in the motion , which is received in evidence as Trial Examiner 's Exhibit 1, be made.
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from a number of out-of-State suppliers including Illinois Range Company of Illi-
nois, Rivers Manufacturing Corporation of Tennessee, and C.R.A., a Division of
Monroe International Incorporated, of Illinois, and Air Distribution Associates, of
Illinois, for a total value of $49,279.61, all of which fixtures, equipment, and goods
were shipped directly to the aforementioned site from points outside the State of
California. During the same year Rossman purchased from a local supplier equip-
ment manufactured by the Keystone Company in Illinois valued at $217.88.
Arne Falk, Inc., in 1965, purchased materials and equipment for installation in
the restaurant, which were received directly from outside the State of California,
and shipped from points in Illinois- and had a total value of $6,076.16. During the
same year Falk also purchased materials from local suppliers within the State
which originated outside the State and were shipped to California from Pennsyl-
vania and Colorado, which had a total value of $755.48.
Arne Falk, Inc., in the construction of the restaurant, subcontracted certain of
the construction work to other concerns, including The Superior Tile Company,
Miro Vista Plumbing and" Heating, J. & M. Corporation, Schrader Iron Workers,
Inc., and Western Glass Company. During 1965 Miro Vista Plumbing and Heating
installed fixtures in the value of $359.28 which constituted indirect inflow from
outside the State of California.
During 1965 Illinois Range Company, in connection with its contract with Ross-
man, subcontracted with Robert Cartage Company, herein called Robert, for
delivery of restaurant materials and equipment purchased by Rossman mentioned
hereinabove, to the restaurant site at San Pablo. These materials were shipped
from outside the State of California.
As the combined direct and indirect inflow of the primary and secondary employ-
ers at the San Pablo site exceeds $50,000 in value, I find that the primary and
secondary employers named herein are, and have been at all times material,
employers engaged in commerce within the meaning of Section 2(6) and (7) of
the Act and that it will effectuate the policies of the Act to assert jurisdiction
herein.2 I further find that The Superior Tile Company, Miro Vista Plumbing and
Heating, J. & M. Corporation, Schrader Iron Workers, Inc., Western Glass Com-
pany, Rivers Manufacturing Corporation, Illinois Range Company, and Robert
Cartage Company are, and have been at all times material herein , persons engaged
in commerce or in an industry affecting commerce.3
II. THE LABOR ORGANIZATION INVOLVED
A. Introduction
The Respondent became interested in representing the employees of the McDon-
ald Carry-Out Restaurant upon learning from a local business service that the
restaurant would be constructed. As a consequence, John M. Kropa, secretary-
treasurer of the Respondent, wrote several individuals in the hope that he could
obtain such recognition of the Respondent. He first addressed a letter to Rod Polley,
who was the California representative of the McDonald Corporation, but Polley
replied that he had no authority to engage in any negotiations with a labor orga-
S M. Keener & Sons, 131 NLRB 1196
I find no merit In the Respondent's contention that the Board lacks jurisdiction in this
proceeding because the operations of the primary Employer involved are insufficient to
meet the Board's jurisdictional standards In applying its standards in cases such as this
the Board takes into consideration for jurisdictional purposes not only the operations of
the primary Employer, "but also the entire operations of the secondary employers at the
locations affected by the alleged conduct involved " Madison Building and Construction
Trades Council, William Arnold, et al (Wallace Htildebrant cC John Kiefer, d/b/a
H & K Lathing Company), 134 NLRB 517, 518. Moreover, in computing the jurisdictional
amount, the Board has held that the cost of installation and local or State taxes may be
Included in determining the amount of inflow. E Paturzo, Bro if Son, Inc., 114 NLRB
1161, 1163; South Florida Liquor Distributors, Inc. of Tampa, 113 NLRB 109, 110; J. Tom
Moore if Sons, Inc., 119 NLRB 1663. The Board likewise has held that the total value of
goods and materials purchased from the beginning of construction until the time of the
bearing may be considered in arriving at this amount. Carpenters Local No 2133, et al.
(Cascade Employers Association, Inc.), 151 NLRB 1378, enfd. 356 F.2d 464 (C A. 9) ;
Hotel, Motel if Club Employees Union, Local 568, AFL-CIO (Leonard Shaffer Company, Inc.,
and Arthur A. Kober), 135 NLRB 567.
BARTENDERS & CULINARY WORKERS UNION 1463
nization. Thereafter, on August 10, 1965, Kropa wrote Ray A. Kroc, chairman of
the Board of the McDonald Corporation in Chicago, advising Kroc of the Respond-
ent's interest in representing the employees at the new McDonald Restaurant then
under construction at San Pablo, Contra Costa County, California, and requesting
an opportunity to discuss the matter with his firm. In the meantime, having received
no replies from his letters to management representatives whom he believed had
the authority to negotiate with the Respondent, Kropa, on August 3, 1965, had
contacted the Central Labor Council of Contra Costa County (AFL-CIO) request-
ing that the Council grant Local 595 strike sanction against the McDonald Carry-
Out Restaurant at San Pablo. On August 12, 1965, Hugh Caudel, secretary-treasurer
of the Council, wrote Kropa, advising that the Council's Executive Board had
voted its approval of strike sanction against the McDonald Carry-Out Restaurant.
After that date, Kropa and James E. Calvarese, president and organizer of the
Respondent, each day observed the premises of the McDonald Restaurant in San
Pablo with the expectation of learning the identity of the franchise-operator of the
restaurant. One day they observed A. T. Wanlass, one of the co-owners of the
premises , at the building site and, through Wanlass, obtained information that the
future operator of the carry-out restaurant was an individual who resided outside
the State of California. Later, upon observing activity at the site, Calvarese visited
the premises prior to the end of construction and contacted Rossman , who declined
to recognize the Respondent.
The Respondent contends that it committed no unfair labor practices , asserting,
as stated hereinabove, that the Board has no jurisdiction in this matter and further
urging that California law, which permits picketing for the purpose of obtaining
"pre-hire" bargaining agreements , is controlling.
B. The facts
The basic facts are not substantially disputed or controverted.
On August 26, 1965 , a Robert Cartage truck containing the restaurant equipment
ordered by Rossman from the Illinois Range Company arrived at the San Pablo
site. Upon arrival, John C. Junkins, the driver of the truck, parked his truck along-
side the building and notified his office of his arrival. The next day Junkins talked
to Sig Chakow, vice president of the Illinois Range Company, by long-distance
telephone, inquiring where was the company installer who was scheduled to unload
the truck. Chakow advised Junkins that the departure of the installer from Chicago
had been delayed because of a storm, and he would not arrive until the following
Monday, August 30. He directed Junkins to contact the Sheet Metal Workers' Local
Union and instruct the business agent or representative of that Local to contact
Chakow. Junkins followed Chakow's instructions and as a result the office clerk
of the Sheet Metal Workers' Local Union in Oakland, California, told Junkins
that the Illinois Range Company had authorized four men to unload the truck and
they would arrive at the construction site that afternoon. Two men instead of four
arrived at the jobsite that afternoon. Upon arrival they observed the pickets and
inquired "what was going on." In addition to talking to Junkins , the two Sheet
Metal Workers also talked with two other persons, whom Rossman believed were
members of Local 595. Immediately thereafter the two men left the construction
site for the purpose of making a telephone call. Later the business agent of the
Sheet Metal Workers' Local Union arrived on the scene and instructed the two
sheet metal workers to leave the construction site. Junkins overheard the business
agent tell them "this is an authorized strike and a recognized strike and we will
honor the picket line."
On the same day the sheet metal workers refused to unload the truck containing
the Illinois Range restaurant equipment, Junkins had a conversation with Calvarese
at the building site. Calvarese explained to Junkins that the Union was attempting to
obtain recognition from McDonald 's because McDonald 's did not employ "union
help" in their operations . On the same day Junkins had another conversation with
Simon and Bob Spencer, both of whom were officials of Local 315, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen , and Helpers of America.
The two officials presented their credentials to Junkins and asked for his. Simon
informed Junkins that he had completed his phase of the contract as he had arrived
at the jobsite and that Junkins should not do anything to "jeopardize" himself per-
sonally or his employer . He also told Junkins that "this was a recognized picket
line." The restaurant fixtures and equipment aboard the Robert Cartage • truck
shipped by Illinois Range Company to the building site was not unloaded that day,
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor was it unloaded at the San Pablo McDonald premises anytime during the
month of August as no one could be obtained who would cross the picket line for
the purpose of loading the truck .4
On the Sunday evening following the arrival of the Robert truck, a truck from
Tennessee loaded with sign equipment arrived at the site. The equipment aboard
the truck-"McDonald" signs, arches, and plastic materials-was furnished by the
Rivers Manufacturing Corporation, pursuant to a contract executed by Rossman
and Rivers. Rivers, in turn, had executed a contract with a local sign equipment
firm, Heath Neon Signs, to complete the installation of the signs transported to the
site. On the following Monday or Tuesday several electricians from the local
area arrived for the purpose of completing the installation work on the signs. Upon
observing the picket signs they declined to cross the picket line and install the
signs.5
Edwin G. Rossman credibly testified that he talked to Union President Calvarese
on August 30 and the latter told Rossman that President Kroc of the McDonald
Corporation had asked Sig Chakow of Illinois Range to inform Rossman that the
only way Rossman could get his restaurant equipment was to execute a contract
with the Union. Rossman replied that it was none of Chakow's business to tell Ross-
man what to do. Calvarese denied conveying such a message to Rossman.6
Later the same day, Calvarese asked Rossman to look over a copy of an agree-
ment between Local 595 and the East Bay Restaurant Association, and Rossman
agreed to read the document. According to Calvarese, this conversation occurred on
August 27,7 and Rossman, upon being told that the Union was interested in obtain-
ing a signed agreement from him, declined and stated that he had no intention of
discussing the matter further. Calvarese testified that shortly after this conversation
the Union commenced picketing, which began at 7:30 a.m. and ended about 9 p.m.,
on a 7-day-a-week basis.
Charles McGrady, an installation supervisor for the Illinois Range Company,
credibly testified that he arrived at the San Pablo site on August 30, 1965, at or about
10:30 a.m. and, upon observing the Robert truck still loaded with his Company's
equipment parked on the lot, the presence of the pickets, and noting that the equip-
ment was not being unloaded, inquired as to the reasons. McGrady first talked to
Junkins, the truckdriver, who told McGrady that he had been contacted by his
local union business agent and had been instructed that he should not break the
seal on the truck unless the Sheet Metal Workers' Local Union members would
unload the truck. McGrady thereafter talked to Joe Luby, the installer of the Illi-
nois Range Company, who informed him that the sheet metal workers had arrived
on the job earlier but would not cross the picket line.
Immediately thereafter McGrady went to the spot on the premises where Cal-
varese and Kropa, of Local 595, were standing. After Luby introduced McGrady
to the two union officials, McGrady asked Kropa if there was any way "we could
arrange to have our truck unloaded just so that the truckdriver could get back to
Chicago-and not install our equipment-." Kropa replied that there was no way
that could be done as he would not have any guarantee that the shipment would
not be installed. Kropa denied telling McGrady there was no way he could remove
the pickets. I credit McGrady's version of this conversation.
McGrady later called his superior in Chicago and advised him about the situa-
tion. Afterwards, he had a further conversation with Kropa. In the course of that
conversation Kropa stated that if the equipment were installed and the carry-out
restaurant were permitted to open, the picket line would not mean anything because
"college kids" would not honor it. McGrady told Kropa that the Illinois Range
Company was "100 percent union," and his company was being injured by its
inability to unload the truck. Kropa thereupon stated that he regretted that Illinois
Range was placed in "the middle of it" but there was nothing that he could do
about it. McGrady testified that on the occasion of this conversation with Kropa,
4 The foregoing findings are based upon the credited testimony of Junkins and Rossman.
The picket signs carried by the Local 595 members at the jobsite stated, "McDonald Drive-
in unfair to organized labor. Bartenders and Culinary Workers Local Union 595, AFL-
CIO." The language quoted above appeared on both sides of the signs.
5 The foregoing findings are based upon the credited testimony of Edwin G. Rossman.
9 For reasons stated in detail hereinafter , I do not credit Calvarese's denial.
7I find that Rossman apparently was mistaken in the date , but this slight variance is not
material to a resolution of the issues involved.
BARTENDERS & CULINARY WORKERS UNION 1465
which occurred about August 30 as stated above, Kropa said that the officers of
Local 595 were not themselves preventing anyone from unloading equipment con-
signed to the jobsite.
The next day McGrady was instructed by his Chicago office to direct Joe Luby
to proceed to a job installation at Portland, Oregon. As a consequence, he called
Luby on the public telephone located at the jobsite to relay the message and asked
Luby if Kropa was there and asked to speak to Kropa. McGrady again asked
Kropa on the telephone if there were any change and any possibility of Illinois
Range unloading the truck. Kropa replied "absolutely not." McGrady thereupon
told Kropa that they would have to dispatch Luby to another job.
The Robert Cartage truck containing the restaurant kitchen equipment was sent
to Southern California upon instruction of Vice President Sig Chakow of Illinois
Range Company, where the equipment aboard originally consigned to San Pablo,
was installed on a job at Pomona, California.
Arne Falk was advised by telegram from Air Distribution Associates, Inc., of
Schiller Park, Illinois, that the air-conditioning equipment and accessories ordered
for installation at the San Pablo construction site were released for shipment to San
Pablo on August 22, 1965. The shipment was handled by Consolidated Freight-
ways, a freight motor carrier, but was diverted, while en route to McDonald's, to
another installation at Lenwood, California. Air Distribution Associates, Inc., stated
that the reason for the diversion of the equipment was because it had been notified
that picket lines existed at the San Pablo site and local cartage would not cross the
picket lines. Although Rossman testified that, as of the hearing date, he had not
yet received the air conditioning equipment, Air Distribution Associates, Inc.,
advised Falk that the equipment would be delivered and Falk testified that it was
customary to install such air conditioning equipment upon final completion of the
building and that the installation would be completed shortly.
Stanley M. McIntire, an electrician employed by the J. & M. Corporation, a
subcontractor of Falk, performed electrical work at the McDonald construction site
prior to August 27, 1965. According to the credible testimony of McIntire, about
30 percent of the electrical work remained to be done at the time the picketing
commenced. McIntire further testified that at the time the picketing began on
August 27, approximately 14 days were required to complete his employer 's elec-
trical subcontracting work at the San Pablo site, utilizing two men on the job. This
work included, inter alia, the electrical installation of the Illinois Range equipment.
About the end of August, McIntire, upon receipt of a telephone call from Falk,
proceeded to the San Pablo site, arriving after the picketing had commenced. His
visit to the construction site at that time was for the purpose of making the final
installations and completing the wiring of the building. Observing the picketing,
McIntire asked one of the pickets what was the reason for the picketing and was
referred to Calvarese. McIntire later talked to Calvarese and another man named
Walter Holler. McIntire told Calvarese that he was dispatched to the site to perform
electrical work. During this conversation Calvarese asked McIntire whether he was
a union member. McIntire replied that he was a union member and showed him his
local clearance slip Later Calvarese identified himself as the president of Local 595,
and stated that if McIntire were "a good union member" he would not cross the
picket line, adding "all the union members have cooperated." Calvarese stated that
the picket line had been established in order to stop the construction of the build-
ing as it was the only way "he could get to McDonald's." Calvarese further stated
that he would not stop at the single store involved in the picketing but would later
proceed to other McDonald establishments in Alameda, Napa, and Contra Costa
counties, and tie them up .8
Following the conversation with Calvarese described above, McIntire called
Local 302 of the International Brotherhood of Electrical Workers and talked to a
man named McCann, a dispatcher for the Local. McIntire asked McCann whether
his union recognized the picket line at the San Pablo job and McCann replied that
the Building Trades Council recognized it. Thereupon McIntire asked McCann what
should McIntire do. McCann advised him that he could not do anything about it,
that McIntire was "on his own," adding "the handwriting is on the wall." On that
8 Calvarese denied telling McIntire that the picketing was instituted to stop the con-
struction of the building , that it was the only way he could get to McDonald 's and that he
would tie tip other McDonald restaurants in the aforementioned three counties I credit
McIntire's version of this conversation over that of Calvarese
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasion McIntire performed no work at the jobsite. He returned to the San Pablo
premises again about the first of September. Several times he stopped at the site
while the picket lines were present and on each such occasion performed no work.
As to the job assignments, McIntire testified, "Well, I am a good union member and
I didn't think it would be right to cross a picket line that was sanctioned by the
Building Trades Council." McIntire later went to the site after the picket line had
been removed and completed the electrical wiring.
On September 9, Warren Krueger, employed by Falk as a carpenter and a mem-
ber of the Carpenters' Local Union No. 1048 of Redwood City, California, was
instructed by Falk to repair a catch basin at the San Pablo McDonald construction
site. Krueger credibly testified that while he was on the site repairing the damage
to the catch basin , he was approached by a man who introduced himself as Calva-
rese and stated that he was connected with Local 595. Krueger introduced himself
and explained his mission at the site. Krueger credibly testified that Calvarese
informed him that he had no objection to the repair work and would not make any
effort to stop him from completing it, as he ascertained that such work was part of
the general construction project. Calvarese described the events to Krueger which
preceded that day, which was September 9, 1965. On that date no pickets were pres-
ent at the jobsite. Calvarese stated that Local 595 had picketed the construction
site to prevent the installation of the equipment and that the pickets surrounded
the site when the Robert Cartage truck arrived with the Illinois Range Company
kitchen and restaurant equipment consigned to Rossman. The pickets according to
Calvarese, remained at the premises for several days until the truck left the site.
and at that time a union man followed the truck to Los Angeles.9 Krueger told Cal-
varese that he believed that the building was not yet completed at that time because
it had not obtained final electrical and plumbing inspections and such inspections
could not be obtained until the equipment was connected. Calvarese told Krueger
that the sheet metal workers had refused to cross the picket line at the time the
truck was present on the premises . Krueger testified that only he and Calvarese
were present during the course of their conversation. Thereafter, he completed the
repair work without event and left the site.
Krueger stated that on such jobsites the general contractor obtains a permit from
the local building department and the utilities for the installation of a temporary
power pole, which the general contractor provides and that he made the application
for the temporary power pole himself . He stated that the pole , which provided
power to the jobsite in the course of construction and was installed by him upon
the direction of Falk, was not removed until the second week of December 1965.
At that time Rossman had not opened the carry-out restaurant and no food or
beverages were being served.
Illinois Range Supervisor Charles McGrady returned to the San Pablo site during
the latter part of September 1965, at the time his company had scheduled a second
delivery of restaurant equipment which was to be made on or about September 28
or 29. McGrady, in accordance with the policy of his company, contacted the Local
Sheet Metal Workers' Union and requested that four men be assigned to the jobsite
on the following Thursday at noon. Because of a breakdown of the truck delivering
the equipment, the date of delivery and installation was postponed until Monday
morning, October 4, 1965. Again McGrady requested the dispatch of sheet metal
workers for the purpose of unloading the equipment. On October 4 the two sheet
metal men were present at 8 a.m. as requested, together with the truckdriver and
officials of Local 595. The truck was backed up for a normal delivery and the two
sheet metal men were present but the truck was not unloaded at that time. McGrady
talked to the job steward, who with another worker, had been dispatched by the
Sheet Metal Workers' Union, and was informed that the men, upon observing the
pickets at the site, called their business agent and requested advice as to what they
should do. The business agent advised them to adhere to their usual union pro-
cedure and not cross the picket line. He also told the steward to exercise his own
judgment in the matter . Upon their arrival , both employees had been told they were
dispatched for the purpose of unloading the truck. However, both refused to unload
the truck because of the picketing. Upon the direction of Vice President Chakow
of Illinois Range, the equipment aboard the truck was taken to San Francisco for
storage and was installed later at another site. Installation Supervisor McGrady
9I do not credit Calvarese's denial that he told Krueger that a union man followed the
truck to Los Angeles.
BARTENDERS & CULINARY WORKERS UNION 1467
testified that the seal on the shipment of August 30 as well as the one of October 4
was not broken at the time the trucks departed and the equipment aboard each
truck was diverted from the San Pablo construction site.
McGrady thereafter talked to Kropa, stating that he thought that the matter had
been settled. He was told that it had not been settled as the operators of the restau-
rant were attempting to obtain a restraining order from the courts barring the pick-
eting. Kropa substantially corroborated McGrady's testimony concerning this
conversation.
The parties stipulated that the picketing continued at the San Pablo location from
August 27 to November 26, 1965. The picketing ended on November 26, 3 days
prior to the temporary restraining order issued by the United States District Court
for the Northern District of California. On that date the Respondent's attorney,
having received a copy of the proposed temporary restraining order, advised the
Union to discontinue the picketing. After the temporary restraining order was en-
tered and the picketing ceased, the equipment ordered from the Illinois Range
Company as well as that from the Rivers concern were installed.
Before the carryout restaurant could be opened and any food products or bev-
erages could be sold, it was necessary for Rossman to have the premises inspected.
Plumbing, health department, and general inspections were made by local authorities.
Certain corrections of existing defects were required by the Contra Costa Health
Department before the business could be opened. These matters were not taken care
of until early in December 1965. The first electrical service was instituted on De-
cember 6, 1965, or shortly thereafter. The gas service commenced on December 16,
1965. On December 15, 1965, Rossman made a deposit with the East Bay Munic-
ipal Utility District which was required before the restaurant could be furnished
water. Rossman's application for a seller's permit and registration as a retailer,
required by the State before he could operate his business, was filed with the State
Board of Equalization on December 14, 1965. The health department inspection
referred to hereinabove was made on December 15, 1965, and Rossman subse-
quently made the corrections required thereunder. The first person employed by
Rossman filed his application on December 13, 1965, and was hired several days
later. This employee actually was engaged for cleanup work in the restaurant prior
to its opening, which occurred on December 20, 1965, the approximate date of com-
pletion of all installation and construction.'°
C. Analysis and conclusions
The Respondent asserts that its dispute was with Rossman, the primary employer
involved, and that its picketing of the restaurant premises was not proscribed by
Section 8(b)(4) of the Act. It contends that the picketing was lawful as it was
directed against Rossman for the purpose of achieving recognition from him. This
argument is not persuasive.
The record is replete with evidence that the specific objective of the picketing
was to prevent the completion of the restaurant in order to compel Rossman to sign
a bargaining agreement with Local 595, before Rossman had hired any employees.
Respondent commenced picketing on the same day it demanded recognition of
Rossman as the collective-bargaining agent of his nonexistent employees. At that
time construction work was still in progress and it was impossible for Rossman or
anyone to operate the restaurant without the installation of equipment and without
the actual completion of the building itself, including wiring, and the installation
of signs, etc.ii The picketing itself successfully appealed to a number of employees
of secondary employers who themselves were trade union members. This is revealed
10 The foregoing findings are based upon the credited testimony of Edwin G. Rossman and
Arne Falk.
11 Although Calvarese testified that A T. Wanlass, one of the co-owners of the premises,
had informed the Respondent 's officials that the construction of the building was com-
pleted about the middle of August , I do not credit his testimony in the face of the pre-
ponderance of evidence that the building at that time was not completed and considerable
work, including the installation of fixtures , wiring, signs , etc., was necessary , which re-
quired a substantial amount of time to complete . Moreover, Calvarese did not impress me
as being a forthright witness and admitted that he had named J. D. Kllcrease as the man
with whom he had talked in his affidavit to the U.S. District Court.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the testimony of McGrady , Kreuger, and McIntire , that the employees of neutral
employers , observing the pickets upon their arrival at the construction site to per-
form services for their respective employers declined to cross the picket line. Al-
though for their respective employers declined to cross the picket line . Although
Local 595 itself was a "service -type" labor organization and not a member of the
Building Trades Council , Kropa admitted that when Local 595 sought strike sanc-
tion from the Council it was essentially seeking the aid of the building and con-
struction trades union members affiliated with that council , with the expectation
that they would not cross the picket line.
The Respondent 's reliance in its brief upon Board cases assertedly holding that
the picketing of the premises of an employer with whom the union was engaged in a
labor dispute was primary in character is misplaced . Here Rossman , the primary
disputant , had not in fact taken over the premises at the time the picketing occurred,
and had not yet hired any employees . Moreover , the picketing began about 3 hours
earlier each day than the customary hour McDonald restaurants opened.
Respondent's contentions that Rossman was not engaged in commerce within the
meaning of the Act and that the laws of the State of California are applicable in
this proceeding likewise are lacking in merit. As found hereinabove , Rossman, the
primary employer , together with the secondary employers , are engaged in commerce
within the meaning of the Act, which warrants assertion of jurisdiction by the
Board. Moreover , Respondent 's argument that California law, which assertedly per-
mits labor organizations to picket for prehire union shop contracts even in the
absence of present or prospective employees , controls this case, is not tenable. Mr.
Justice Frankfurter, speaking for the Supreme Court in the Garmon case 12 set forth
the principle that:
When it is clear or may fairly be assumed that the activities which a State pur-
ports to regulate are protected by Section 7 of the Taft-Hartley Act, or con-
stitute an unfair labor practice under Section 8, due regard for the Federal
Enactment requires that State jurisdiction must yield.
It is clear that in this area the National Labor Relations Act, as amended, has
totally preempted state action.13
It is apparent from all the foregoing that Respondent unlawfully induced and
encouraged individual employees of neutral secondary employers to engage in a
strike or refusal to perform services for their respective employers , and unlawfully
threatened , coerced, or restrained them, with the object of causing the neutral sec-
ondary employers to cease doing business with Rossman , all with the ultimate object
of forcing Rossman to recognize and bargain with Respondent as a representative
of his employees . It is also clear that Respondent had no dispute with Illinois Range
Company,_ Robert Cartage Company, Rivers Manufacturing Corporation , Falk, J.
& M. Corp., or any other of the subcontractors , its dispute being solely with Ross-
man. Its activities , which were clearly intended to, and in fact did, enmesh neutral
employers and their employees in its dispute with Rossman for the proscribed
objects thus clearly violates Section 8 (b) (4) (i) and ( ii) (B) of the Act.i4
CONCLUSIONS OF LAW
1. By inducing and encouraging employees of Falk, Illinois Range Company,
Robert Cartage Company, Rivers Manufacturing Corporation , and J. & M. Corp., to
refuse in the course of their employment to perform services for their employers,
and by threatening , coercing , and restraining Falk, Illinois Range Company, Robert
Cartage Company , Rivers Manufacturing Corporation , and J . & M. Corp. , with an
object in either case of forcing each to cease doing business with Rossman,
Respondent has engaged in unfair labor practices within the meaning of Section
8(b) (4) (i ) and (ii ) (B) of the Act.
v San Diego Building Trades Council et at v Garmon, et al , 359 U.S. 236, 244.
13 See Local 542, International Union of Operating Engineers (R. S. A'oonan, Inc ), 142
NLRB 1132. See also Come, Federal Preemption Since Garmon, 17 Lab L J 195 (1966).
14,41i8cellaneous Drivers and helpers Union Local 619 (Robe)t R. Wright, Inc ),
151 NLRB 182; Hotel, Motel & Club Employees' Union, Local 568, AFL-CIO (Leonard
Shaffer Company, Inc.), 135 NLRB 567
BARTENDERS & CULINARY WORKERS UNION 1469
2. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of Section 8(b)(4)(i) and (ii)(B) of the Act, my Recommended Order will
require that it cease and desist therefrom and take certain affirmative action designed
to remedy the unfair labor practices and otherwise effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions and the entire record in
this case, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, I hereby recommend that the Respondent, Bartenders & Culinary Work-
ers' Union, Local No. 595, Hotel & Restaurant Employees and Bartenders Inter-
national Union, AFL-CIO, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Picketing the premises of the McDonald's Carry-Out Restaurant, located at
12244 San Pablo Avenue, San Pablo, California, or in any other manner inducing
or encouraging an individual employed by Falk, Illinois Range Company, Robert
Cartage Company, Rivers Manufacturing Corporation, and J. & M. Corp., or any
other individuals employed in an industry affecting commerce, to refuse, in the
course of their employment, to perform any services, with an object of forcing
or requiring Falk, Illinois Range Company, Robert Cartage Company, Rivers
Manufacturing Corporation, and J. & M Corp., to cease doing business with Edwin
G. Rossman.
(b) Threatening, coercing, or restraining Falk, Illinois Range Company, Robert
Cartage Company, Rivers Manufacturing Corporation, and J. & M. Corp., or other
person engaged in an industry affecting commerce, with an object of forcing or
requiring Falk, Illinois Range Company, Robert%Cartage Company, Rivers Manu-
facturing Corporation, and J. & M. Corp., to cease doing business with Edwin G.
Rossman.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Post in Respondent's business offices, and meeting halls, in conspicuous
places, including all places where notices to members are customarily posted, copies
of the attached notice marked "Appendix." 15 [Board's Appendix substituted for
Trial Examiner's Appendix.] Copies of said notice, to be furnished by the Regional
Director for Region 20, shall, after being duly signed by Respondent's authorized
representatives, be posted by it immediately upon receipt thereof and be maintained
by it for 60 consecutive days. Thereafter, reasonable steps shall be taken by
Respondent to insure that such notices are not altered, defaced, or covered by any
other material.
(b) Sign and mail sufficient copies of said notice to the Regional Director of
Region 20 for posting by Falk, Illinois Range Company, Robert Cartage Company,
Rivers Manufacturing Corporation, and J. & M. Corp., and Edwin G. Rossman, such
employers being willing, at all places where notices to their respective employees
are customarily posted.
(c) Notify said Regional Director, in writing, within 20 days from the date of
the receipt of this Decision, what steps the Respondent has taken to comply
herewith.16
is In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order is enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
1O In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."