Cooks, Waiters and Waitresses Union, Local 327

National Labor Relations Board - Board Decisions

Apr 24, 1961

131 N.L.R.B. 198 (N.L.R.B. 1961)

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the contract is not a bar, and that,a question affecting commerce
exists concerning the representation of employees of the Employer
within the meaning of Section 9(c) (1) and Section 2(6) and (7) of
the Act. '
4. We find that the following employees constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees, excluding all office
clerical employees, guards, professional employees, and supervisors as
defined in the Act .8
[Text of Direction of Election omitted from publication.]
The unit appears as amended at the hearing.
Cooks, Waiters and Waitresses Union , Local 327; and Peoria
Local Joint Executive Board , Hotel and Restaurant Em-
ployees International Union ; and Anna C. Rimington and
Greater Peoria Restaurant Association . Case No. 13-CB-840-2.
April 24, 1961
DECISION AND ORDER
On August 2, 1960, Trial Examiner Thomas F. Maher issued. his
Intermediate Report in this case, finding that the Respondent had
violated Section 8(b) (1) (A) of the Act and recommending that they
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. The
Trial Examiner also recommended that the separate complaint alleg-
ing violations of Section 8 (b) (3) of the Act be dismissed. Thereafter
the Charging Party and the General Counsel filed exceptions to the
Intermediate Report, and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner to the extent consistent with the decision set forth
below.
The complaint in this case alleges that the Union unlawfully refused
to bargain with the Association by executing individual contracts
with two restaurants, Vonachen's Junction and the Steak House, on
June 6 and January 18, 1960, respectively. A preliminary question
131 NLRB No. 33.
COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 199
in this case is the factual 'issue whether these two employers were
actually members of the Association on the above dates. Briefly, the
history of collective bargaining between the Union and the Associa-
tion and its members is as follows :
Since 1947, the Association has negotiated collective-bargaining
agreements with the Union on behalf of the members of the Associ-
ation. Prior to the expiration of the last contract on January 31,
1958, the Association secured bargaining authorizations from its par-
ticipating employers, and bargaining commenced on a new contract
on January 9, 1958. Vonachen's Junction, and the Steak House signed
authorizations on November 20, 1957, and January 7, 1958, respec-
tively. Shortly after negotiations began, difficulties arose and nego-
tiations ended on January 31, 1958. On January 28, 1958, Vonachen's
by letter revoked its authorization to the Association and prior to
February 1, 1958, executed an individual contract with the Union.
On the evening of January 31, 1958, the Association at a meeting of
its members took the following action : First, it authorized those
employers who wished to avoid a strike to sign the contract offered by
the Union, which many did. Second, it agreed to file unfair labor
practice charges against the Union alleging violations of Section
8(b) (3) of the Act. The charge (Case No. 13-CB-627) was filed in
February 1958 and culminated in an informal settlement executed on
March 10, 1959, in which the Union, while admitting no violations of
the Act, agreed to bargain with the Association and to abrogate the
individual contracts signed pursuant to the agreement at the January
31,1958, meeting. A list of Association members was appended to the
settlement agreement and this appendage included the names of
Vonachen's Junction and the Steak House. Negotiations between the
Association and the Union, under the terms of the settlement, resumed
on March 19, 1959, but ended in a strike on June 6, 1959. On January
6 and 18, 1960, Vonachen's and the Steak House, respectively, signed
individual contracts with the Union.
It is the position of the General Counsel that the Union's obligation
under the March 10, 1959, settlement agreement to bargain with the
Association for a multiemployer unit, including Vonachen's and the
Steak House, makes irrelevant any attempts by these two employers
to withdraw from the Association prior to that date. With respect to
the evidence in the record that these two employers did, in fact, with-
draw from the Association subsequent to that date, the General Coun-
sel asserts that such evidence is inconclusive and insufficient to rebut
the presumption that they remained members of the Association when
the Union executed individual contracts with them. We do not agree
with the General Counsel's theory. As to the settlement agreement,
no obligation undertaken by the Union is sufficient in and of itself to
bind an employer to an Association from which it may have, in fact,
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdrawn. If such withdrawal was accomplished prior to March
10, 1959, the Association was not authorized to speak for, or to list,
such an employer as a member. Obviously, neither the General Coun-
sel nor the Union, the remaining parties to the settlement agreement,
had such authority. Accordingly, we shall consider all of the perti-
nent evidence in determining whether or not Vonachen's and the Steak
House were members of the Association on June -6 and January 18,
1960, respectively.
We adopt the Trial Examiner's finding, based, as it is, upon resolu-
tions of credibility, that the Association and the Union agreed within
1 month after negotiations resumed on March 19, 1959, to exclude
Vonachen's from the Associationwide unit. The record shows that on
January 17,1959, Vonachen's refused to sign a new authorization when
solicited to do so by the Association in contemplation of new negotia-
tions under the settlement agreement.
The Steak House, in August 1959, by its owner, Robert Ashmore,
informed Anna C. Riming ton, business agent of the Union, that it was
not a member of the Association. Again in December 1959, Ashmore
called Rimington, after receiving a subpena in connection with the
hearing conducted in the instant case, and protested that the Steak
House was not a member of the Association. He told Rimington
that he wanted to sign a contract with the Union.
The record indicates that neither Vonachen's nor the Steak House
have participated in Associationwide bargaining since negotiations
first broke down in January 1958, and that neither of them had paid
dues or assessments to the Association since January 31, 1958 (which
failure under the by-laws of the Association results in automatic ter-
mination of membership). Neither were these two employers on a list
of Association members submitted to an insurance agent at a negotiat-
ing session on April 22, 1959, for the purpose of determining certain
data with respect to an insurance plan.
It is well established that a single employer unit becomes appro-
priate when the employer, at an appropriate time, manifests an inten-
tion to withdraw from group bargaining and to pursue an individual
course of action with respect to its labor relations.'
The totality of the conduct of Vonachen's and the Steak House, as
outlined above, since January 1958, has been inconsistent with any
desire to conduct its labor relations policies in conjunction with the
Association. More than that, their conduct has manifestly indicated
an intent not to be bound by Associationwide negotiations in the fu-
ture. Indeed, it was pursuant to these individual policies that the
January 6 and 18, 1960, contracts were executed.
Under the circumstances of this case, especially in view of the fact
that neither Vonachen's nor the Steak House has bargained as a mem-
1 McAnary & Welter, Inc, 115 NLRB 1029.
COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 201
bet of the Association since January 1958, we find that they had
abandoned group bargaining, and were not Association members at
the time they signed individual contracts with the Union on January
6 and 18, 1960.1 Accordingly, the employees of these two employers
constituted separate appropriate units for purposes of collective bar-
gaining on these dates.' We shall therefore dismiss so much of the
complaint as alleges a violation of Section 8(b) (3) of the Act by the
Union. In view of this conclusion, we find it unnecessary to pass upon
the question whether the Union would have violated Section 8(b) (3)
by executing individual contracts with current members of the As-
sociation while engaged in collective bargaining with the Association.
In absence of exceptions we adopt the Trial Examiner's finding of
a violation of 8(b) (1) (A) pro forma.4
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Anna C. Rimington; Cooks, Wait-
ers and Waitresses Union, Local 327; and Peoria Local Joint Execu-
tive Board, Hotel and Restaurant Employees International Union,
their officers, representatives, agents, successors, and assigns, shall:
1. Cease and desist from restraining and coercing employees in the
exercise of their rights under Section 7 of the Act, by making threats
of reprisals against them during the course of strike activities against
the Greater Peoria Restaurant Association.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Post in their business offices, copies of the notice attached hereto
marked "Appendix." 5 Copies of said notice, to be furnished by the
Regional Director for the Thirteenth Region, shall, after being duly
signed by responsible officials of the Respondents, be posted by the
Respondents immediately upon receipt thereof, and be maintained by
it fora period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondents to insure that said
notices are not altered, defaced, or covered by any other material.
8 While the record is not clear as to whether the Steak House expressly communicated
its withdrawal to the Association , it is clear on the above facts that the Association was
informed of the withdrawal of the Steak House
See Colonial Cedar Company, Inc, 119 NLRB 1613.
• We adopt the Examiner's recommendation that posting notices need not be furnished
by Respondent to the Association solely because of the "fluidity " of the Association
members
5In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals . Enforcing an Order."
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days of the date of this Order, what steps it has
taken to comply herewith.
(c) It is also ordered that the complaint in Case No. 13-CB-840-2,
alleging the violation of Section 8(b) (3) of the Act, be dismissed.
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF GREATER
PEORIA RESTAURANT ASSOCIATION
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, we hereby notify,you that:
WE WILL NOT coerce or restrain the employees of Greater Peoria
Restaurant Association by threats of reprisals if they continue
to work for members of said Association, or fail or refuse to en-
gage in picketing or other concerted activity during the course of
the strike against the said Association and its members.
COOKS. WAITERS AND WAITRESSES
UNION, LOCAL 327,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
PEORIA LOCAL JOINT EXECUTIVE BOARD,
HOTEL AND RESTAURANT EMPLOYEES
'INTERNATIONAL UNION,
Labor Organization.
Dated---------------- By-------------------------------------
( Representative ) ( Title)
Dated---------------- By-------------------------------------
ANNA C. RIMINOTON
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges and amended charges filed on August 28 and October 1, 1959, and
January 8 , 1960, by Greater Peoria Restaurant Association, hereinafter referred to
as the Association , General Counsel of the National Labor Relations Board on
October 30, 1959, and thereafter on February 2, 1960 , issued complaints against
Cooks, Waiters and Waitresses Union , Local 327; Peoria Local Joint Executive
Board, Hotel and Restaurant Employees International Union ; and Anna C. Riming-
ton, herein referred to collectively as Respondent , or when appropriate , as Respond-
ent Union and Respondent Rimington , respectively . The October 30 complaint in
Case No. 13-CB-840, alleged violations of Section 8(b) (1) (A) of the National
Labor Relations Act, as amended ( 61 Stat . 136), herein referred to as the Act. The
February 2, 1960 , complaint in Case No . 13-CB-840-2, alleged violations of Sec-
COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 203
Lion 8(b)(3) of the Act. The complaints consolidated for purposes of hearing,
were, thereafter amended, without objection, at the hearing.
In its duly filed answers Respondent, while admitting certain allegations of the
complaints, denied the commission of any unfair labor practice. Prior to sub-
mission of its answer to the first complaint, Respondent moved that the complaint
be made more definite and certain, which motion was denied by Trial Examiner
A. Bruce Hunt. Subsequently Respondent' caused to be prepared and served upon
the several members of Greater Peoria Restaurant Association, the Charging Party
herein, subpenas duces tecum directed to the production of detailed information
concerning the volume of business of the respective members. Upon the Charging
Party's petition for the revocation of these subpenas, Trial Examiner George J. Bott
considered the matter and denied the petition without prejudice to the Charging
Party's right to renew its request at the hearing. When the petition to revoke was
renewed at the beginning of the hearing I reserved ruling at the time. As the various
stipulations of counsel with respect to the volume of business of the individual
Association members and to their membership and activities in and on behalf of
the Association were deemed by me, without objection of counsel, to be adequate
for purposes of developing the record herein, no further recourse was had to the
subpenas previously issued. So that they may not hereafter be viewed as operative
in this or related proceedings the Charging Party's motion to revoke is hereby
granted.
Pursuant to notice a hearing was held before me in Peoria, Illinois, on February
S, 9, 10, and 11, 1960, and in Chicago, Illinois, on March 17, 1960. All parties
were represented at the hearing and were afforded full opportunity to be heard, to
introduce relevant evidence, to present oral argument, and to file briefs. Parties
waived oral argument at the hearing and in lieu thereof filed briefs with me thereafter.
Upon consideration of the entire record and the briefs of the parties, and upon
my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE EMPLOYER ASSOCIATION
Greater Peoria Restaurant Association, the Charging Party herein, is a voluntary
association of owners and operators of restaurants, cafes, cafeterias, and other like
establishments engaged in the serving and sale of food and beverages in the Peoria,
Illinois, area to the general public for consumption on the premises. The Associa-
tion is incorporated under the laws of the State of Illinois and maintains offices and
headquarters in Peoria, Illinois Its members constitute the employers of the em-
ployees involved herein. Included among these members is Bishop's Cafeteria,
located in Peoria, Illinois, which in the year 1958 did a gross volume of business in
excess of $325,000, and Palace Restaurant, located in Peoria, Illinois, which during
the same year did a gross volume of business in excess of $370,000. In addition
to the foregoing the record reflects that during the same year, 1958, Palace Res-
taurant I purchased fixtures, meat products, and butter in an amount in excess of
$24,000 from firms located outside of the State of Illinois, which goods and fixtures
were shipped directly to Palace Restaurant in Peoria, Illinois, directly from points
outside the State of Illinois; and that the Palace Restaurant likewise purchased
during the same year foods and commodities valued in excess of $64,000 from firms
located in the State of Illinois which foods and commodities were purchased by the
aforesaid firms from manufacturers, growers, and others outside the State of
Illinois. Upon the foregoing, and upon consideration of the fact that the Board
has previously taken jurisdiction over the Association in a proceeding instituted by
charges filed by Respondent herein in Cases Nos. 13-CA-3391 and 13-CA-3444
(not published in NLRB volumes), I find and conclude that the Association is
engaged in commerce within the meaning of the Act and constituted a single
employer whose combined operations satisfy the minimum required by the Board
for the assertion of its jurisdiction.2
II. THE LABOR ORGANIZATIONS INVOLVED
Cooks, Waiters and Waitresses Union, Local No. 327, and Peoria Local Joint
Executive Board. Hotel and Restaurant Employees International Union, are labor
organizations within the meaning of the Act.
1 Also Identified In the record as Palace Cafeteria
. 2 Siemons Mailing Service, 122 NLRB 81, 85; Belleville Employing Printers, 122
NLRB 350, 352.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ISSUES
1. Whether Vonachen's Junction and the Steak House unequivocally manifest an
intent not to be bound by multiemployer bargaining.
2. Whether the foregoing establishments withdrew from multiemployer bargain-
ing at an appropriate time.
3. Whether remarks by union officials constituted restraint and coercion of
employees.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
Because this proceeding is the result of the consolidation of two separate com-
plaints whose subject matters are completely unrelated they will be considered
separately herein:
A. The alleged refusal to bargain 3
1. Facts
Beginning sometime in 1939 a ,,predecessor of the Association executed. its first
collective-bargaining,"agreement withthe Respondent Union in behalf of the em-
ployees of the employer-members. Since then the Union has continued to represent
these employees. Meanwhile, in 1947 the Peoria Restaurant Association was in-
corporated and succeeded to the bargaining responsibilities of the employer group.
By amendment of its articles of incorporation in 1955 the present name of the
Association was adopted.
Between 1947 and 1955 representatives of the Association and the Union met
periodically and negotiated and executed collective agreements . In 1955 the parties
agreed upon a contract, due to expire on February 1, 1957. Unlike the previous
contract executed by the Association and the individual - members, this one was
negotiated by the Association but executed only by the individual'methbers, although
the preamble of the document itself designated the Association as the "Party of
the Second Part." This contract was reopened in 1956 and its expiration date
extended to January 31, 1958.
In late 1957, prior to the approaching renegotiations, the Association solicited
from restaurants in the Peoria area formal authority to the Association' s negotiating
committee to represent them in the forthcoming negotiations . Approximately 45
restaurants responded and authorized bargaining in their behalf. Included among
this group were Vonachen's Junction and the Steak House, the only two employers
directly concerned in these proceedings, who signed authorizations on November 20,
1957, and January 7, 1958, respectively.
Although negotiations began immediately thereafter, on January 9, 1958, and
continued throughout the month, Vonachen's Junction and four other restaurants
notified the Association on January 28, within 3 weeks of the commencement of
bargaining, of its intention to withdraw from the Association and to disassociate
itself from the negotiations then in progress. The text of this notification is as
follows:
We, the undersigned , hereby withdraw our membership from the Greater
Peoria Restaurant Assn. as of January 28, 1958
We further withdraw the bargaining authorization, immediately, wherein we
appointed and designated the Greater Peoria Restaurant Association and its
officers, directors, committees and agents selected for that purpose to act for
and on our behalf in bargaining and negotiations with the Cooks, Waiters and
Waitresses Local No. 327 and its affiliates for the labor contract to take effect
after the expiration of the present contract on January 31, 1958.
The undersigned further notified you that, effective immediately, the under-
signed withdraws authorization for you to incur any expenses or expend any
money on behalf of the undersigned?
At the January 29, 1958, bargaining session , the Union presented the Association
with a proposed contract and its ultimatum that a strike would be called unless the
proposal was accepted. The Association members voted not to accept the proposed
contract but agreed to permit those of its members who could not "take a strike" to
S Case No 13-CB-840-2.
4 Several days thereafter, on January 31, 1958, the proprietor of Jumbo Lunch likewise
withdrew from the Association and the bargaining arrangements, stating:
I hereby resign from the Greater Peoria Restaurant Association.
I further withdraw any authorization previously given to you to act on my behalf
or to encur any expense on my behalf.
COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 205
sign individually . Most of the individual members signed the contracts , and when
Harold A. Vonachen, Jr., signed in behalf of Vonachen's,Junction he advised Busi-
ness Agent Rimington that he had notified the Association of his withdrawal from
group bargaining.5
Subsequently, upon the investigation of a charge in Case No. 13-CB-627 filed
with the Board by the Association against the Union in February 1958, and upon
the execution over a year later, on March 10, 1959, of a settlement agreement
thereon,6 the Union agreed to abrogate these contracts and to resume bargaining
with the Association. The agreement with Vonachen's was not abrogated but upon
the mutual agreement of parties remained in full force and effect. And in the
meantime, in January 1959, when Vonachen's Junction was solicited to rejoin with
the Association in its resumed bargaining with the Union-an expected result of
the then proposed settlement agreement-Harold Vonachen refused to authorize
resumed bargaining in his behalf and continued to hold in full force and effect the
year-old individual contract he had executed with the Union in late January or early
February 1958.7 This refusal Vonachen thereafter communicated to Union Business
Agent Rimington.8
The March 1959 settlement agreement upon which bargaining was scheduled to
resume included as an appendix a list of the employers in the the bargaining unit
agreed upon by the Association and the Regional Director, but not by the Union
representing the employees. Included on this list of employers was Vonachen's
Junction, the Steak House, and Jumbo Lunch whose 'withdrawal of 14 months
previous has been referred to above (supra).
Negotiations did resume as a result of the settlement agreement , and from
March 19, 1959, to January 27, 1960, frequent meetings were held between the
Association and the Union. During many of these meetings discussions between
the partices were held directed to an understanding of what constituted the bar-
gaining unit. Thus on March 19 and 25 and May 6 the parties considered and
finally agreed upon the Union's proposal to exclude four or five restaurants from the
unit, including Vonachen's and Jumbo Lunch, both of whom had withdrawn pre-
viously, and to include two new restaurants .9 On June 5, 1959, after a prolonged
period of fruitless negotiations, the Union called a strike against the Association and
began to picket several of its members. The strike is still in progress.
On January 6, 1960, Respondent Union renewed its individual contracts with
Vonachen's Junction and on January 18 it executed a contract with the Steak House.
s The credited testimony of Rimington.
This charge , ultimately dismissed by virtue of the settlement agreement, alleged
among other things the maintenance of an allegedly unlawful agreement with the em-
ployers by the terms of which clearance by or membership in the Union was required of
employees as a condition of employment by the signatory employers.
7 Vonachen 's reply to the Association 's request for his authorization , dated January 17,
1959 , is as follows :
After careful personal consideration and several consultations with my lawyer I have
decided to return the copies of the authorization unsigned.
I feel that I have signed a contract with the Union in good faith and I hesitate
to change until the present contract expires. I feel the Union negotiated with me
in good faith and both of us intend to live up to the provisions of the contract.
I fully realize the need for an association and agree for the betterment of our
Industry we should band together . On the other hand I feel that the association
as it is organized now is of no value to me.
The issues at stake in the present difficulties are insignificant and the attempted
settling of them will bring only a large amount of legal expense. Because of my
many employees a great portion of that expense will fall upon Vonachen 's Junction.
To sum up my feeling I don 't think it would be advantageous to enter into an agree-
ment in something I do not firmly believe in . It seems to me that someone is going
about this matter on a grudge battle basis rather than good old common sense.
I have no personal ill feeling towards the association or any of its members.
I have based this decision on my conviction that I am doing the best for my organi-
zation . I hope someday we will all have a meeting of the minds and may knit
together a strong organization which will bargain on a friendly and impartial basis
with organized labor.
s The credited testimony of Rimington.
9In this respect I discredit the testimony of Labor Relations Consultant Scheinman
that these exclusions were viewed as tentative or that he was not clear as to the Union's
suggestions as to exclusions . Upon my disposition of this phase of the case, however, I do
not consider this a significant factor.
206 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD —'
The circumstances surrounding the Steak House's relation to the bargaining unit
is not as well defined as is Vonachen's. Thus, there is no direct evidence that this
establishment formally withdrew from the Association. But,the record does con-
tain, however, a detailed analysis chart of the Association membership 10 whereon
is recorded, in columnar form opposite the respective restaurants, such details as
the date of their respective bargaining authorizations, whether or not they were
revoked, and the details of membership dues and bargaining assessments. Sig-
nificantly, while the Steak House is not shown to have revoked its bargaining
authorization, it has paid neither its membership dues nor bargaining assessments.
With respect to the revocation of the Steak House's bargaining authorization there
does appear in the record ample evidence of the Association's understanding that a
revocation had been effected.ll Thus on April 22, 1959, Joseph Hecht, an insurance
agent present at a bargaining session, was asked to provide certain detailed in-
formation concerning group insurance as it applied to restaurant employees whose
employers were represented by the Association. As an essential to his compu-
tations he was provided by the Association's representative, Scheinman, with a list
entitled: RESTAURANTS WHICH HAVE SIGNED BARGAINING AUTHORI-
ZATIONS OF GREATER PEORIA RESTAURANT ASSOCIATION. The Associ-
ation had not included the Steak House on this list. Moreover, Robert Ashmore,
owner of the Steak House, credibly testifying as a witness for the General Counsel,
stated that he did not believe that the authorization which he gave the Association on
January 7, 1958, lasted "up to this day." A conclusion that Ashmore did not under-
stand himself to be bound by his 2-year old authorization or his earlier ties with the
Association receives further support from two sources. Thus upon the credible
testimony of Union Business Agent Rimington:
Q. I show you the contract and I ask you if you can tell the Trial Examiner
the circumstances under which the Union signed a contract with the Steak
House.
A. In the summer of '59 . . . Mr. Ashmore called me up . . . he said, I
want you to understand and know that I do not belong to the Restaurant As-
sociation, and I don't want any part of it.
A. . . he says look, he says, "I told you before that I do not belong to that
[Association] and I want no part of it," he says, and "I haven't belonged to it,"
he says; and "I would like to have you send me a contract"; he says, "I want to
sign the contract."
and John F. Curtis, manager of the Y.M.C.A. Restaurant, testified credibly that it
was his understanding that no signed document was necessary either "to withdraw
or sustain your membership with the Association" and that "in the event [he] wished
to withdraw membership [he] would have that right at any time."
Upon all of the foregoing circumstances, therefore, I conclude and find that the
Steak House, through its proprietor, Ashmore, did not consider itself bound to the
Association by its January 1958 authorization, nor was it a member of the Associa-
tion when it signed an individual agreement with the Union on January 18, 1960.12
10 Respondent's Exhibit No. 3.
n While there is indication on the aforementioned analysis chart '(Respondent's Exhibit
No. 3) that the Steak House had not filed its revocation, it likewise states that Jumbo,
another one-time member of the Association,: had not filed a revocation. This statement
was contrary to the admitted fact that Jumbo had filed its authorization as early as
January 31, 1958. Because of such inaccuracy I am constrained to reject this chart as
evidence of the authorizations remaining in force and those that were revoked. I shall
accept it only as evidence of payment or nonpayment of dues and bargaining assessments.
12 In the meantime while the employees were on strike and while the Association and
Union continued to bargain the Union filed charges against the Association in Case No.
13-CA-3391, alleging violations of Section 8(a) (1), (3 ), and (5 ) which are not relevant
to issues herein. After investigation of the charge by the Regional Director and negotia-
tions with the Association a settlement agreement (not to be confused with the agree-
ment considered previously, supra ) was executed over the objections of and without the
signature of the Union. Included in the agreement, as an appendix, was a list of em-
ployers for whom the Association obligated itself to bargain. As the list includes 10
restaurants whom it is stipulated have gone out of business, out of a total of 45, its
accuracy is open to serious question . To conclude otherwise would be to assume that
22 percent of all the restaurants represented by the Association went out of business be-
tween November 3, 1959, the date of the agreement, and February 10, 1960, the date of
the stipulation. This is hard to believe, and I do not. For this reason and because the
COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 207
2. Contentions of the parties
It is the 'General Counsel's position that the March 10, 1959, settlement agree-
ment in Case No. 13-CB-627, containing a list of employers whom the parties
understood to be represented by the Association, obligated the Respondent to bar-
gain with the Association in behalf of the employees of all of these employers ex-
cept insofar as the parties should agree thereafter to exclude one or more of these
listed establishments, or unless one or more of the employers executed a timely uni-
lateral withdrawal from the unit. The General Counsel further contends that there
has been no such opportunity for a timely unilateral withdrawal following the
execution because contract negotiations had already begun before the attempted
withdrawal and have continued uninterruptedly to the date of the hearing, witnout
having resulted in a contract. Thus, the General Counsel insists, in effect, that the
only withdrawal that could be viewed as timely would be one executed before the
beginning of original negotiations, sometime in December 1957. And in this re-
spect he would view the most recent obligation to bargain, i.e., the settlement agree-
ment of March 10, 1959, as a restatement, as of that date, of the earlier obligations
to.bargaining in the then-constituted multiemployer bargaining unit.
In sum, therefore, General Counsel would reject as untimely Vonachen's Junc-
tion's withdrawal on January 28, 1958, as well as its January 17, 1959, refusal to
authorize the Association to bargain for it; and it would not consider the Steak
House to have effected, in any fashion, its withdrawal from Association bargaining.
Respondent contends that when the bargaining resumed on March 19, 1959, under
the terms of the settlement agreement of March 10, 1959, Vonachen's Junction was
not then included in the bargaining unit, for, regardless of its inclusion on the settle-
ment agreement list, it had previously indicated its withdrawal, on January 28, 1958.
Respondent urges, moreover, that this withdrawal from the unit was fully under-
stood by the Association and agreed upon by the parties by virtue of an agreement
arrived at on March 25, 1959, between the Association and Respondent, through
correspondence and oral understanding between Association representatives and Re-
spondent's counsel, Mr. Lee Buckey (supra). And with respect to the Steak House,
Respondent relies upon the bylaws of the Association, admitted into evidence, which
"specifically and automatically terminate the membership when found to be in 'delin-
quency in the payment of dues.' " And it further relies on the evidence that the
management of the Steak House not only considered itself withdrawn from member-
ship and unobligated by the bargaining then in process but had positively stated its
rejection of Association bargaining to one of the parties, the Respondent, and spe-
cifically requested representation on an individual employer basis.
3. Analysis of issues and relevant decisions
All that we have for consideration in this case is a determination of what is and
what is not a legitimate, timely withdrawal of an employer from previously estab-
lished multiemployer or association bargaining. If, therefore, it can be shown that
either Vonachen's Junction or the Steak House withdrew from the Association
negotiating in behalf of the area restaurant employers, either in the wrong fashion
or at the wrong time or both, Respondent's subsequent contracts with them or either
of them would constitute a'refusal to bargain in violation of Section 8(b)(3). Be-
cause there have developed numerous complications in interpreting the authorities
supporting this legal proposition a brief review of pertinent authority appears to be
in order.
McAnary and Welter, Inc., 115 NLRB 1029, continues to be 13 the cornerstone
of an individual employer's rights and obligations in multiemployer bargaining.
Thus it is stated (at p. 1031) :
A unit limited to employees of the employer becomes appropriate if the em-
ployer manifests its intention to withdraw from multiemployer bargaining and
to pursue an individual course of action at an appropriate time.
settlement , agreement's appendix list was supplied unilaterally by the Association I am
not disposed to accept it as evidence of who is represented by the Association Cf
Local 883, International Union , United Automobile Workers of America (UAW-AFL-CIO),
at al. ( Paper Makers Importing Co, Inc ., et al.), 116 NLRB 207, 276.
is The Board most recently relied upon this case in American Publishing Corporation,
et at ., 121 NLRB 115 , 122, footnote 39, and in Detroit Window Cleaners Union, Local
139, etc ., 126 NLRB 63, wherein it considered and accepted the Trial Examiner's re-
liance upon the case, to the exclusion of others.
208 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two subsidiary problems emerge from a statement of this well-established rule:
(1) what constitutes manifesting an intent to withdraw from multiemployer bargain-
ing and to pursue an individual course of action, and (2) what constitutes an appro-
priate time.
a. The intent to withdraw
The adequacy of an employer's intent to withdraw from multiemployer bargaining
has been variously described. Thus it has been held that an employer who has
not for the past 2 years participated in the joint negotiations with a group with
which it had previously been associated has unequivocally manifested its intent not to
be bound by such negotiations in the future.14 Similarly, when an employer has
consistently objected to the course which multiemployer negotiations were taking,
refused to sign the resulting contract, and thereafter undertook individual negotia-
tions with the union, the Board held multiemployer bargaining to have been
abandoned and an intent to pursue individual bargaining clearly manifested. 15 Simi-
larly, by signing individual employer contracts an intent to abandon multiemployer
bargaining has been found manifest as has been the requests of a union to bargain
separately in derogation of a binding multiemployer unit-a unit claimed to have
been in existence by the union petitioning for an election.16
And finally withdrawal from multiemployer bargaining has been approved upon
a showing of release of individual members by the Association,17 mutual agreement
of the parties that individual bargaining be substituted for joint bargaining,18 and
inadequate bargaining history.19
On the other hand withdrawal of individual employers has been refused upon
an absence of the foregoing factors. Thus, in Anderson Lithograph Company, Inc.,
et al., 124 NLRB 920, unequivocal withdrawal by an employer was not established;
for although the employer withdrew before a multiemployer agreement was reached
it did so only after having previously pursued multiemployer negotiations fully aware
that other employees had secretly withdrawn and executed separate contracts with
the union. This continued bargaining rebutted, the Board held, an unequivocal
intent to withdraw. Out of this species of attempted withdrawal it would appear
that a concept of estoppel has been engrafted on the requirement of "unequivocal
manifestation." 20 Thus, in Detroit Window Cleaners Union, Local 139, etc., 126
NLRB 63, wherein the employer gave no notice of its withdrawal until after contract
negotiations had been concluded, the Board held that because "it stood by while
negotiations were being conducted, keeping informed of the progress of these nego-
tiations without giving the [Union] the slightest reason to believe that the Associ-
ation was no longer bargaining in its behalf," the employer was thereby estopped
from relying upon its withdrawal. And in the most recent Cosmopolitan Studios,
Inc., 127 NLRB 788, the Board, relying upon Anderson, reiterated this theory of
estoppel, holding that an employer having reaffirmed its willingness to bargain
through the group, and the union having relied upon it and commenced bargaining,
the employer's subsequent withdrawal before contract execution was precluded on
the basis of estoppel.21
A summary of these cases suggests, therefore, that to manifest unequivocally an
employer's intent to withdraw from multiemployer bargaining it is expected that
parties to such bargaining be made aware of the employer's actual or intended with-
drawal and that his conduct generally not be so inconsistent with his intent as to
compromise it and estop any reliance upon it 22
14 Colonial Cedar Company, Inc, 119 NLRB 1613, 1614.
15 International Brotherhood of Electrical Workers, AFL-CIO, et al . (Texlite, Inc.),
119 NLRB 1792, 1794.
1E Neville Foundry Company, Inc., 122 NLRB 1187, 1189. That it was the union (as
distinct from the employer association in the instant case) which sought to rely upon the
continuing unaffected multlemployer bargaining unit is, in my judgment, irrelevant.
17 Pennsylvania Garment Manufacturers Association. Inc 125 NLRB 185.
is Scougal Rubber Mfg Company, Inc, et al, 120 NLRB 470
19 Pioneer Holding Company d/b/a Blue and White Cab Co , 126 NLRB 956
20 Compare The Standard Register Company, Pacific Division, 120 NLRB 1361, 1363.
n See also General Teamsters Local Union No 324, etc. (Cascade Employers Assn.,
Inc ), 127 NLRB 488, and Marcus Trucking Co, Inc, 126 NLRB 1080, where the Board
held withdrawals not to have been accomplished.
22 Apart from the Board's most recent reliance upon estoppel as a basis for nullifying
withdrawal from joint bargaining it has advanced a converse approach in assessing the
intent to withdraw. Thus it has been held that the employer's desires to continue in a
multiemployer bargaining unit and "to be bound in future collective bargaining by group
rather than individual action" is "an essential basis for any finding that a multiemployer
COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 209
b. The timely withdrawal
A definition of what constitutes a "timely " withdrawal suffers from conflicting
authority . In McAnary and Welter , Inc.,23 the employer withheld his withdrawal
until after the agreement was negotiated and after actual signing by one of its cor-
porate officers. This the Board held untimely . But, distinguishing this case in
Textile, Inc.,24 where the Board held that withdrawal after refusing to sign a joint
contract was timely , it was emphasized that throughout the multiemployer bargain-
ing the employer constantly objected to the course being taken.
No precise pattern emerges from a study of the remaining cases treating of the
timeliness of an employer's withdrawal . Thus, in Benjamin Franklin Paint and
Varnish Company, a Division of United Wallpaper, Inc., 118 NLRB 1007, it was
held that withdrawal upon the expiration of multiemployer agreement was timely.
In American Publishing Corp., 121 NLRB 115 , 122, attempts of employers to with-
draw, made after the first 6 months of a 2 -year contract , were clearly untimely ( citing
McAnary and Welter , Inc., supra ). In Krist Gradis, et al., 121 NLRB 601, 607,
footnote 17, the withdrawal of a group of employers from a larger group , during
the term of a joint contract was held "not untimely ." And finally, in a situation
suggesting the application of the previously discussed estoppel theory to determina-
tions of timeliness it was held in a subsequent American Publishing Corporation,
et al., decision 25 that withdrawal from multiemployer bargaining would not be per-
mitted after commencement of representation proceedings before the Board, where
the circumstances of the withdrawal , though known to the parties , were not dis-
closed at the representation hearing. Consequently , the parties to the individual
contract were deemed estopped.
This review of the cases dealing with timeliness of withdrawal suggests an ab-
sence of any pattern or formula that has been consistently applied. On the contrary,
I am left with the distinct impression that the factor of timeliness of withdrawal is
to be applied on an ad hoc basis, to be determined by the peculiar circumstances of
the case at hand.26
4. Conclusions
a. Vonachen's Junction
Vonachen's withdrew from the Association 23 months before the filing of the
relevant charge in this proceeding. During all the intervening period Association
bargaining continued without success. During the same period Vonachen and
Respondent have been operating under an individual collective agreement. Because
the Association and Respondent had been negotiating for 3 weeks, back in January
1958, before Vonachen formally withdrew and signed its contract with Respondent,
General Counsel insists that during all the intervening months, to the present time,
Vonachen's is nonetheless wedded to multiemployer bargaining.
unit is appropriate." Chicago Metropolitan Home Builders Association, 119 NLRB 1184
See also Harbor Plywood Corporation, et al, 119 NLRB 1429. This suggests the need of
a demonstrated intent to remain within the larger unit as evidence of the continuing
appropriateness of the larger unit
The Board has not repudiated this criteria. Because, however, such it requirement is
completely contrary to the theory of the Board's subsequent cases, namely, that the intent
to remain is presumed until the contrary has been unequivocally manifest, I shall assume
for the present purposes that this theory expressed by the Board in Chicago Home
Builders is no longer the law.
zs 115 NLRB 1029 at 1031
24 Supra, footnote 15, 119 NLRB 1792 at 1794.
25 124 NLRB 1227
is In Retail Associates, Inc, 120 NLRB 388, the Board also considered the complica-
tions arising from withdrawal from multiemployer bargaining This case became the
subject of considerable court litigation (42 LRRM 2031 ; 43 LRRM 2004, 43 LRRM 2029)
and culminated in the Board's order of December 5, 1958, vacating its Decision and Direc-
tion of Election insofar as they hold that the appropriate bargaining unit is a multi-
employer unit. Because this latest order has thus cast doubt upon the continued existence
of the original decision and because the Board itself has refused to rely upon its decision
in several instances (Detroit Window Cleaners Union Local 139, etc, 126 NLRB 63;
Marcus Trucking Company, Inc, 126 NLRB 1080; General Teamsters Local Union No 324,
etc (Cascade), 127 NLRB 488, Cosmopolitan Studios, Inc, 127 NLRB 788) I do not
believe it necessary to burden this report with further references to the case.
599198-62-vol 131-15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nothing in the record suggests that relations between Vonachen 's and Respondent
are strained, or that Vonachen's employees have suffered in any way by the long-
standing contractual arrangement. To insist, then, at this late date, that Vonachen's
withdrew from the Association at the wrong time and in the wrong fashion would
serve only to encourage the destruction of a stable relationship and to add to the
existing multiemployer stalemate. The processes of the Act were never so intended.
Insofar as the technical adequacy of Vonachen's withdrawal is concerned, it is
clear that its intent to withdraw has been consistently manifest; witness its two
formal notifications so stating (supra). To say that Vonachen's did not give ade-
quate notice in these premises is tantamount to a conclusion that no notice of any
kind would be acceptable.
Upon the foregoing and a review of the entire record, I have no doubt that the
Association and its representatives were as aware of Vonachen's withdrawal as was
the contracting union . Nor do I find anything in the record that would suggest that
Vonachen's equivocated in the matter or did anything at any time that could be
viewed as inconsistent with its desires to be rid of group bargaining.27 Accordingly,
I would find that Vonachen's intent not to be bound by multiemployer bargaining
was unequivocally manifest.
While I am not disposed to reconcile the conflicting criteria as to what is an appro-
priate time to withdraw I would suggest that 3 weeks after the beginning of 23 fruit-
less months of Association bargaining should be acceptable. Any other conclusion
would suggest that an employer may never withdraw from Association bargaining
once it begins; for from that time on the parties are either bargaining or living with
the contract they have bargained. None of the cases I have reviewed earlier can
thus support a bargaining obligation in perpetuity and I reject it.
Accordingly I find and conclude that Vonachen's Junction's unequivocal intent to
withdraw from multiemployer bargaining was manifest at a time when to do so would
stabilize the relationship existing between its employees and their chosen representa-
tive, the Respondent 28 As I fail to see how the contracts so executed constitutes a
refusal to bargain in violation of Section 8(b)(3), I shall recommend the complaint
be dismissed as it relates to this particular employer.
b. Steak House
The conduct of Robert Ashmore, Steak House owner, must necessarily be con-
sidered in the light of what is an unequivocal manifestation of an intent to withdraw
from multiemployer bargaining, because, unlike the obvious and long-standing dis-
association of Vonachen's Junction, Ashmore's activities in behalf of the Steak
House typifies the "negative approach." Thus, according to the Association's own
records he failed to maintain his membership in that body by paying dues, as re-
quired by the Association's bylaws. And he failed to contribute, as had 27 others,
his assessment to defray the collective-bargaining expenses. It is also to be noted, of
course, that, unlike other employers who revoked their bargaining authorizations
but whose names the Association continued to carry on its list of those obligated to a
multiemployer bargaining arrangement,29 Ashmore did not formally revoke his au-
thorization. There is sufficient credible evidence in the record, however, to satisfy me
that whatever failed for lack of formality was accomplished nonetheless to the satis-
faction of both parties to the multiemployer arrangement. Thus a list was furnished
as early as April 22, 1959, to Joseph Hecht, the insurance agent engaged to explore
experience figures relative to group insurance, which list included, according to its
title, "RESTAURANTS WHICH HAVE SIGNED BARGAINING AUTHORIZA-
TIONS OF GREATER PEORIA RESTAURANT ASSOCIATION." This list, fur-
nished by Scheinman, the representative of the Association, did not include the Steak
ar Cf. Anderson Lithograph Company, Inc., et al ., 124 NLRB 920 ; Cosmopolitan Studios,
Inc, 127 NLRB 788
m International Brotherhood of Electrical Workers, AFL-CIO, et al . ( Texlite, Inc),
119 NLRB 1792, 1794, supra, footnote 15; Colonial Cedar Company, 119 NLRB 1613,
1614, supra, footnote 14; Neville Foundry Company, Inc, 122 NLRB 1187, 1189, supra,
footnote 16
20 This information was supplied in the record by a chart (Respondent's Exhibit No 3)
the accuracy of which was conceded but its relevancy protested by counsel for the General
Counsel. I reaffirm my ruling admitting this chart.
Among the restaurants for whom assessments and dues had not been received were :
Vonachen's Junction, the Original Murphy's, and Hager's Stage Coach Inn. All had
formally revoked.
COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 211,
House 30 In addition to the foregoing evidence of the Association's actual aware-
ness of the Steak House's intent not to be included in the Association bargaining,
there is the previously considered testimony of both its owner, Ashmore, and Re-
spondent's business representative, Rimington (supra) that he wanted no part of the
Association, considered himself out of the Association, and wished to bargain with
Respondent separate and apart from the Association. The Respondent was thus
equally aware of Ashmore's feelings in the matter.
Upon the foregoing I conclude and find that Robert Ashmore, in behalf of the
Steak House, unequivocally manifested an intent not to be included in the Association
bargaining then in progress.31 It remains to be seen, however, whether he accom-
plished this at an appropriate time.
In the summer of 1959 Ashmore advised Respondent's Rimington that he was not
part of the group bargaining, and by April 22, 1959, the Association's Scheinman,
according to the list he supplied Hecht, was aware that no authorization for the
Steak House was on file.
Both April 1959 and the summer of 1959 occurred during a period of continuing
negotiations; one before and one after the strike was called. All that is presented
for determination by these circumstances is whether these dates of notice to the par-
ties constitute an appropriate time. Under the conflicting criteria revealed by a study
of the cases this is not a simple task. In fact, I am at a loss to suggest, on the basis
of chronology alone, whether it was appropriate or not. Instead I must rely upon an
analysis of the offense charged, namely a failure and refusal on the part of the Re-
spondent Union to bargain with the Association insofar as Steak House's employees
are concerned. Because Steak House and the Respondent actually did something
more than simply fall or refuse to bargain, that is to say, because they indulged in the
positive action of negotiating and executing an individual contract, their respective
motives for doing what they did, and in consequence, the good or bad faith of their
positive action comes into issue . I am called upon, therefore, to determine not
merely whether Respondent's separate contract amounted to 'a failure to bargain with
the Association but indeed whether it was action taken in bad faith. Moreover, to
the extent that the Steak House was a party to the contract, I must assess its motives
as well 32 This I believe to be crucial to the determination of whether the time was
appropriate, because under the most recent theory expounded by the Board a party's
ill-motivated withdrawal estops his subsequent reliance upon it 33 Precisely, there-
fore Lam called upon to decide two items: (1) whether Ashmore, deciding when he
did to. abandon the Association, did so in good or bad faith, and (2) whether Re-
spondent, in bargaining with Ashmore and signing a contract, did so knowing Ash-
more had withdrawn in bad faith, or did so for some devious reason of its own, not
otherwise described in the record. I see no such evidence of bad faith here.
Robert Ashmore wanted to get out of the Association for reasons best known to
him (as did numerous other members) and, with the knowledge of both Association
and Union he did so. Ashmore, to his credit, asked for and got a collective agree-
ment covering his employees, the principal beneficiaries of these proceedings. The
Union for its part negotiated and executed a contract with Ashmore when he asked
for one. Certainly these circumstances do not, of themselves, add up to bad faith.
Only a flouting of the law itself could , it seems to me, establish the ingredient of bad
faith essential to finding an untimely withdrawal. The law, as reflected by the cases
cited above, is not so clear asto suggest what is the precise time at which a with-
drawal would be appropriate. Nor does this Trial Examiner presume to make a posi-
tive judgment in the matter. Consequently, if we expect Robert Ashmore and the
representatives of the Union to pattern their bargaining conduct upon proper timing,
we are asking of them something that the present state of the law itself cannot supply.
Consequently to expect Ashmore and the Union to second-guess the Board, the courts,
and this Trial Examiner, is indeed a tender reed upon which to posit bad-faith
bargaining as it is affected by timely or untimely action. Because, therefore, I have
no reason to find that the Steak House's withdrawal from Association bargaining was
not fully communicated to all parties in ,timely fashion and in good faith and because
30 Neither did the list include Vonachen's Junction nor Jumbo. For some reason not
explained in the record it did include Hager's and Murphy's, both of whom had also
formally resigned. I do not view this error as detracting, however, from the evident con-
clusion that the Association was aware of the Steak House's and Vonachen's failure to
authorize group bargaining.
3' Colonial Cedar Company, Inc., 119 NLRB 1613; Texlite, Inc, 119 NLRB 1792;
Neville Foundry Company, Inc., 122 NLRB 1187, footnotes 14, 15, and 16, supra.
ra Detroit Window Cleaners Union, Local 139 , etc, 126 NLRB 63, supra.
83 Cases cited at footnotes 20 and 21 , supra.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I see no culpability by Respondent in these respects I shall recommend that the com-
plaint be dismissed insofar as it alleges a refusal to bargain by negotiating a separate
contract with the Steak House.34
B. The alleged restraint and coercion 35
1. Facts
Upon the commencement of the strike against members of the Association, on
June 5, 1959, the Respondent, through its leaders, Business Representative Anne
Rimington, and her daughter Junetta Saxton, former secretary-treasurer of the Union
and presently its full-time office employee, took the usual routine steps to insure that
the picket lines were adequately manned and that the striking members were given
proper instructions as to the performance of their assigned duties. These instructions
and the exhortations that normally accompany strike activity were renewed periodi-
cally and were always the principal item of business at the union meetings held regu-
larly each month and at such special meetings as were called from time to time.
In the process of maintaining the picket lines at adequate strength it is alleged that
Respondent, through Rimington and Saxton, threatened certain employees with loss
of employment and union benefits if they failed to participate in union or concerted
activities. In support of these allegations employees Banks, Little, and Tompkins, all
members of the Union,36 testified credibly, albeit vaguely and frequently in general
terms, that pressure was put upon them to participate in the picketing then in progress.
Employee Bamadine Tompkins, who had done some service on the picket line
shortly after the strike began, sought and received from the Union temporary em-
ployment and thereafter returned to full-time work at a restaurant then being struck.
Early in July, Saxton telephoned Tompkins from union headquarters and asked her
if she was going to picket. Upon receiving a negative reply, Saxton, according to
Tompkins,
said I done the lowest thing a creature could have done by going to work for
another association restaurant... .
She told me that after the strike was all over with, that maybe sometime I'd want
a job in one of the hotels or restaurants and she wouldn't be able to do anything
for me because other girls wouldn't want to be working with somebody who
didn't picket.
Tompkins further testified that at the regular August union meeting Rimington, in the
course of her discussion of strike progress and of unwillingness of some members to
picket, stated that
these strong Union members know how to deal with these girls that don't picket
and are not good Union members; she said did you ever work with anybody
that wouldn't talk to you-it can make it mighty uncomfortable for them.
Employee Sally Little testified that in August, after she had become tired of picketing
and wanted to return to work, Rimington, according to Little's credited testimony,
did tell me if you go back to work you would never be able to get a job in no
other Union house and you would be black-balled.
According to Little, Rimington made this or a similar remark each time Little ap-
peared at union headquarters to collect her strike benefits. Despite her dissatisfaction
84A study of the cases dealing with the establishment and maintenance of multi-
employer bargaining reveals an inclination on the part of the Board to require not only
employer authorization of such bargaining but employee approval as well Thus, In
Mohawk Rosiness Machines Corporation, 116 NLRB 248 the Board (citing the Pepsi-
Cola Bottling Company of Kansa8 City case in 55 NLRB 1183 1186) stated that "a
multiemployer bargaining unit is appropriate only if there is some indication that the
employees in each of the constituent employer groups, which themselves would comprise
natural and inherently appropriate units, have consented, expressly or otherwise, to
be represented by a single bargaining agent in common with the employees of other
employers "
As the question of employee approval was never raised In the instant proceeding and as
there has been an extensive history of bargaining on a multiemployer basis I shall assume
for purposes herein that employees have consented to the arrangement carried on in their
behalf Cf. Shamrock Dairy, Inc, et at, 119 NLRB 998, 1002.
85 Case No 13-CB-840
38 It is not clear from the record which of these employees have or have not maintained
a status of paidup membership.
COOKS, WAITERS AND WAITRESSES UNION, LOCAL 327 213
with picket duty Little continued with it from June to December 11, at which time
she forsook the strike and went to work at the struck Palace Restaurant as a fry cook.
Employee Flora Banks, whose picket duty for the first 21 weeks of the strike
was interrupted by failing health, testified credibly that on one occasion she went
to union headquarters and complained to Rimington of all the picketing she had
been doing and the need for a steady job. Rimington, according to Banks, replied
that
if everybody felt like I did there wouldn't be anybody to picket and if anybody
went scabbin' over picketing why they wouldn't have jobs when they came out 37
In rebuttal of the foregoing accounts of pressure placed upon employees to
engage in picket activity Respondent called a considerable number of witnesses, and
offered to call more, to attest to the fact that they never heard Rimington nor Saxton
make any of the statements attributed to them either at meetings or in private con-
versations. I place no weight upon their testimony for the simple reason that their
failure to hear announcements or statements at union meetings throughout the
summer of 1959 (at least 15 such meetings having been held) proves only that these
particular people did not hear the statements being made. Nothing in the record
suggests that they attended each meeting and each particular session (morning, after-
noon, and evening) of each meeting. Furthermore, the fact that neither Rimington
nor Saxton made statements of the nature alleged within the hearing of, or directly
to, these people in no way proves that such statements were never made. On the
credited testimony of those to whom the statements allegedly were addressed I have
found that they were made.38
2. Analysis and conclusions
Citation of authority is unnecessary to establish that statements of the sort quoted
above necessarily tend to restrain and coerce employees. Section 7 of the Act, by
its very language, gives them the right to give up picketing when they choose, or
to refrain from it altogether, just as it permits them to return to the job from which
they went on strike. I have no doubt that Respondent's agents, Rimington and
Saxton, by the remarks quoted above, sought to, and in fact, did curtail these
rights. The record is clear that the remarks were made to employees protesting their
picket duty assignments and seeking to improve their meager income. Thus em-
ployee Little could not "live out of the little money [she] was getting for strike
benefit"; and employee Banks was under heavy debt buying a house. Although both
protested to union officials that they were thus hard pressed and sought relief from
the burden of picketing it is significant that they actively picketed for periods of time
thereafter. I have, therefore, no alternative but to conclude that the threats of the
Union's agents were effective. Upon this conclusion I further conclude and find
that the Respondent has restrained and coerced employees in the exercise of their
statutory rights and has thereby violated Section 8(b)(1)(A) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondent set forth in section IV, above, occurring in con-
nection with the operations of member restaurants of Greater Peoria Restaurant
Association described in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
VI. THE REMEDY
Having found that the Respondent has violated Section 8 (b) (1) (A) of the Act,
it will be recommended that it cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act. I shall recommend that the Respond-
ent and its agents be ordered to refrain from making threats of reprisal against
s7 Employee Lucille Harper was also called by the General Counsel to testify as to her
conversations with Rimington on the subject of picketing Because of her stated in-
ability to quote Rimington, and the vague and disjointed testimony which she gave
throughout her appearance on the witness stand , I place no reliance upon her accounts of
the threats made to her and the reasons for them
as In finding as I have, I reject as incredible the denials of both Rimington and Saxton
of the statements attributed to them. In so doing , however, I do not intend in any way
to detract from the reliance I have placed on the testimony of these witnesses respecting
the general conduct of the Union's affairs and its negotiations with the association, as
considered herein ( supra).
214 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD
nonstriking employees of the Association and those who fail or refuse to participate
in picketing or other forms of concerted activity . Affirmatively I shall recommend
that appropriate notices be posted by Respondent at its place of business . I shall
not, however , require that such notices be furnished the member restaurants of the
Greater Peoria Restaurant Association for posting by them if they so choose. The
record in the instant case indicates that the membership of this Association is so
fluid as to cast doubt on who should be furnished notices for posting; furthermore,
the administrative details , including preparation and distribution of notices and
verification of compliance , should not, in my judgment , be used in remedying mat-
ters of such slight significance in the effectuation of the Act 39
CONCLUSIONS OF LAW
1. Cooks , Waiters and Waitresses Union, Local 327, and Peoria Local Joint
Executive Board , Hotel and Restaurant Employees International Union , are labor
organizations within the meaning of Section 2(5) of the Act.
2. Greater Peoria Restaurant Association is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
3. By making threats of reprisal against nonstriking employees and those who
failed or refused to participate in picketing or other concerted activity or who sought
to withdraw from such activity during the course of a strike it was conducting
against Greater Peoria Restaurant Association, the Respondent restrained and
coerced employees in the exercise of their rights guaranteed by Section 7 of the Act
and it thereby violated Section 8 (b) (1) (A) of the Act.
4. The aforesaid practices are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
8 Cf. N.L.R.B. v. Crompton-Highland Mills , Inc., 337 U.S. 217, 226 , rehearing upon
Court's refusal to require posting of notice denied 337 U.S. 950.
Mister Softee of Michigan , Inc. and Charles Neal . Case No.
7-CA-2840 (2). April 24, 1961
DECISION AND ORDER
On January 26, 1961, Trial Examiner James T. Rasbury 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 copy of the Intermediate
Report attached hereto. The Respondent and the General Counsel filed
exceptions to the Intermediate Report.
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 Intermedi-
ate Report, the parties' exceptions, and the entire record, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following additions and modifications :
1. We agree with the Trial Examiner's finding that Respondent dis-
charged Charles Neal on June 27,1960, in violation of Section 8 (a) (3)
131 NLRB No. 35.