Cockatoo, Inc.

National Labor Relations Board - Board Decisions

Dec 24, 1963

145 N.L.R.B. 611 (N.L.R.B. 1963)

COCKATOO, INC. 611
disclaimer of a desire to represent the employees of Martino's 27 I
would find that a question concerning their representation exists and
would entertain the Employer's petition for an election .21
' Contrary to my colleagues , further evidence that the picketing had a recognitional
object appears ( 1) in the admission of the Union ' s secretary -treasurer that the pickets
would be removed upon Martino ' s execution of a contract , and (2 ) in the Union 's news-
paper advertisement calling attention to Martino ' s efforts "to get rid of union contract
-obligations " and its "opposition to the Union agreement."
28 Since, in my view, there exists a question concerning representation , there is no
room for the Employer to achieve indirectly what could not be accomplished directly, as
.my colleagues suggest. Indeed, an election here would be consistent with the congressional
purpose to resolve representation disputes by the holding of an election and thereby to
-eliminate picketing as an industrial irritant whenever possible To refuse to hold an elec-
tion, as my colleagues do, is to allow the already prolonged picketing to continue in-
, definitely on the present basis.
Cockatoo , Inc.,' Employer-Petitioner and Culinary Workers &
Bartenders Union, Local 814, Hotel and Restaurant Employees
and Bartenders International Union , AFL-CIO, Union
The Cockatoo Hotel ,2 Employer-Petitioner and Culinary Work-
ers & Bartenders Union , Local 814, Hotel and Restaurant
Employees and Bartenders International Union, AFL-CIO,
Union. Cases Nos. 01-RM-832 and 21-ISM--873. December 24.x,
1963
DECISION AND ORDER
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Carl Abrams.
'The Hearing Officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board finds:
1. Cockatoo, Inc., which operates the Restaurant, is a corporation
wholly owned by Andrew Lococo and his wife. The adjacent Hotel
is also owned by Lococo and his wife in joint tenancy. Lococo testified
that during its last fiscal year the Restaurant grossed in excess of
$1,000,000 and that it purchased goods exceeding $100,000 in value
from distributors who received these commodities directly from out-
side the State. He further testified that during its current fiscal
year the Hotel will gross $310,000 to $330,000 and that for its pre-
vious fiscal year it grossed less than $500,000. The Hotel's indirect
annual purchases from outside the State exceed $50,000 in value.
i Hereinafter referred to as "Restaurant
8 Hereinafter referred to as "Hotel."
8 The Union subpenaed the records of both Restaurant and Hotel . A request to quash
that subpena was granted by the Hearing Officer and the Union 's motion to strike testi-
mony by Lococo , president of both Hotel and Restaurant , as to commerce facts, was denied.
Due to the nature of our decision herein, we find it unnecessary to rule on the Union's
exceptions to these rulings.
145 NLRB No. 67.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ninety percent of its guests remain less than 1 month . In addition
to the above-mentioned fact that Lococo and his wife are the sole
owners of both the Restaurant and the Hotel , the record also reflects
that Lococo hires the manager of the Hotel and the general manager
and chef of the Restaurant , that both establishments share an account-
ant, and that Lococo controls policy for both . In view of the fore-
going, we find that the Hotel and Restaurant constitute a single
employer for jurisdictional purposes ,4 and that it will effectuate the
policy of the Act to assert jurisdiction over the Employer.
2. Culinary Workers & Bartenders Union, Local 814, Hotel and
Restaurant Employees and Bartenders International Union, AFL-
CIO, is a labor organization within the meaning of the Act.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and ( 7) of the Act for the following reasons:
The Restaurant filed a petition on May 23, 1962 ( Case No. 21-RM-
832) alleging that the Union had presented it with a claim for recogni-
tion as the representative of certain of its employees . A Decision and
Direction of Election was issued by the Regional Director on July 9,
1962, but on September 7, 1962, the Union filed a disclaimer of interest
in the employees involved , and on September 10 the Regional Director
issued an order dismissing the petition . The Hotel filed a petition
on August 3, 1962 ( Case No. 21-RM-851) and that petition was dis-
missed on August 9, 1962 , when the Union disclaimed . On Septem-
ber 25 , 1962, the Restaurant filed a motion requesting reinstatement
of its petition in Case No . 21-RM-832 and on October 5, 1962, the
Hotel filed a new petition ( Case No. 21-RM-873 ). The Regional
Director thereupon , on October 31, 1962, issued an order withdrawing
dismissal of petition ( Case No. 21-RM-832 ), and issued a notice of
further hearing, order consolidating cases and notice of representa-
tion hearing in both cases.
On or about September 7, 1962, the Union began picketing both
the front and rear entrances to the Hotel, and such picketing con-
tinued at least until the hearing in December 1962. The picket signs
contained the following language :
Cockatoo Hotel Not Union.
Please Patronize Union Houses.
In addition , at least one sign was used which read, in part, as follows :
This Establishment Not Union.
Please Patronize Union Houses.
4 Canton Carp 's, Inc, 125 NLRB 483, 484.
COCKATOO, INC. 613
There is no evidence to show that work stoppages or refusals to
deliver goods either occurred or were induced.'
The Employer contends that such picketing was organizational or
recognitional in nature, and that, due to the placement of the pickets
near entrances to both the Hotel and the Restaurant and the use of
at least the one sign reading, in part, "This Establishment Not Union,"
rather than "Cockatoo Hotel Not Union," such picketing was directed
at both the Hotel and the Restaurant. The Employer further con-
tends that, soon after picketing had begun, the Union made a demand
for recognition inconsistent with its previous disclaimers .1
The Union contends that the picketing was directed only at the
Hotel, and that it was solely informational in nature. Union Repre-
sentative Rebell denied making the above-mentioned demand for
recognition.
A walkway leads from the rear customer entrance of the Hotel east-
ward to a public sidewalk. Approximately 35 feet to the north is a
second parallel walkway extending from the sidewalk to a customer
entrance to the Restaurant and to the Restaurant delivery entrance.
A brick wall runs parallel to the sidewalk between the two walkways.
The record reflects that the Union picketed both the front and rear
customer entrances to the Hotel. Several witnesses for the Employer
testified that pickets patrolling the sidewalk at the Hotel's rear cus-
tomer entrance followed a path past the Hotel entrance northward
across the walkway leading to both the Restaurant's public entrance
which is used by approximately 90 percent of the Restaurant's cus-
tomers and the delivery entrance to the Restaurant. Other Employer
and Union witnesses testified that the pickets did not cross the Res-
taurant walkway but patrolled only up to the walkway. According
to the latter witnesses, the pickets were at all times at least 10 to 15
feet distant from the Restaurant entrance.
We find it unnecessary to determine whether the picketing was con-
fined to the Hotel or was directed against both the Hotel and the
Restaurant. Even if testimony is credited that the Restaurant walk-
way was picketed, it is obvious that only by such picketing could the
Union achieve its perfectly legitimate purpose of informing 90 per-
8 Like our dissenting colleague , we take note of certain testimony in the record to the
effect that on one occasion a delivery man was stopped by a picket and told that a strike
was in progress . The testimony , however , was hearsay and, as such , unreliable. In any
event, the record shows that the delivery was made forthwith. With regard to the purpose
of the picketing , we consider it significant that on September 6, 1962 , letters were sent by
the Union to the Los Angeles County Federation of Labor, to The Cockatoo Hotel, to the
Joint Council of Teamsters , and to the Food and Drug Council advising of the informa-
tional picket line and asking that deliveries continue to be made as usual.
6 Lococo , who, together with his wife, owns both the Restaurant and the Hotel, and
Perconti , the manager of the Hotel , testified that on or about September 11, 1962, Debell,
a union representative, requested that both the Hotel and the Restaurant enter into a
contract with the Union.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cent of the Restaurant's customers that the establishment was "not
union." 7
In our opinion, it is clear that the picketing engaged in at customer-
entrances had as its purpose and effect the notification to the public
of the fact that the Hotel (or the Hotel and the Restaurant) was "not
union." In short, we find that the picketing was not in and of itself'
inconsistent with the Union's disclaimers."
The Employer's second contention that Union Agent Debell de-
manded recognition of both the Hotel and the Restaurant on about
September 11, 1962, is the sole remaining allegation of Union conduct
inconsistent with its disclaimers. As previously indicated, Debell'.
categorically denied making the demand. Other evidence adduced by-
the Union showed that, contemporaneous with thebeginning of picket-
ing, it had sent letters to the Employer and to various labor organiza-
tions denying any claim to represent the employees in question .9
Moreover, at the hearing the Union again asserted that it was not
seeking representation of the employees of the Hotel or Restaurant.
In these circumstances, we cannot conclude that either the Hotel or
the Restaurant had ever been presented with a claim to recognize the
Union which would support its petitions for an election herein.l°
Accordingly, we conclude that the picketing described above is not
inconsistent with the disclaimers by the Union. We, therefore, find
that there is no question concerning representation and shall dismiss,
the petitions filed herein.
[The Board dismissed the petitions.]
MEMBER JENHINS took no part in the consideration of the above
Decision and Order.
MEMBER LEEDOM, dissenting :
Unlike my colleagues, I would find the picketing to be inconsistent
with the Union's disclaimers. As my colleagues point out, the Union
contends that its picketing was solely informational in nature and
was directed only at the Hotel. The Union's conduct, however, belies
this contention. Thus, in at least one instance, a delivery man was
stopped by a picket and told that there was a strike in progress, in-
dicating that, rather than informational, the picketing was intended
as a signal to employees of other employers not to cross the picket
7 Cf. Normandin Bros . Company, 131 NLRB 1225, 1226, wherein the Union picketed only
at the employee-service entrance and not at the customer entrance.
8 Miratti's , Inc, 132 NLRB 699.
9 See footnote 5, supra
10 Martino's Complete Home Furnishings, 145 NLRB 604, Andes Candies, Inc., 133
NLRB 758; Miratti's, Inc., supra; cf. Retail Clerks Union, Local No . 1404, AFL-CIO'
(Jay Jacobs Downtown, Inc.), 140 NLRB 1344.
SOUTHERN TRANSPORT, INC. 615.
line, and was so used. Further, the fact that pickets patrolled the
path past the Hotel entrance northward across the walkway leading
to the Restaurant's public entrance and the delivery entrance, and
used at least one picket sign reading, in part, "This Establishment
Not Union," clearly demonstrates to me that the picketing was directed
at both the Hotel and the Restaurant.
Measuring this conduct of the Union against the fact that it is not
disputed that the Union had theretofore sought recognition from the
Restaurant and that the Union began its picketing on the very day
it filed its disclaimer, thereby obviating the election directed by the
Regional Director among the Restaurant's employees, I am persuaded
that the Union has acted inconsistently with its disclaimers." I would,,
therefore, find that there exist questions concerning representation in
both these cases and would process the petitions.
n See my dissenting opinion in Martino 's, supra.
Southern Transport, Inc. and Truck Drivers and Helpers Local
Union No . 568, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America . Case No. 26-CA-
1489. December 24, 1963
DECISION AND ORDER
On August 20, 1963, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that
the 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 Inter-
mediate Report. Thereafter, the Respondent filed a statement of
objections and exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
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 Inter-
mediate Report, the Respondent's statement, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent herewith.
1. We find, in agreement with the Trial Examiner, that the Re-
spondent violated Section 8 (a) (5) and (1) of the Act by, inter alia,
failing to meet at reasonable intervals with the Union, which was
145 NLRB No. 69.