Hotel & Restaurant Employees Local 274 (Stadium Hotel Partners)

National Labor Relations Board - Board Decisions

Aug 31, 1994

314 N.L.R.B. 982 (N.L.R.B. 1994)

982
314 NLRB No. 161
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has filed a request for oral argument. The re-
quest is denied as the record, exceptions, and briefs adequately
present the issues and the positions of the parties.
2 The General Counsel has excepted to the judge’s granting of the
Respondent’s motion to strike the complaint allegations that certain
unions acted as agents of the Respondent. Although we agree with
the judge’s granting of the motion, we do not adopt the judge’s char-
acterization of those allegations as ‘‘mere surplusage’’ and a
‘‘waste’’ of time at the hearing.
1 The relevant docket entries are as follows: The unfair labor prac-
tice charges in Cases 4–CP–441 and 4–CP–442 were filed by Sta-
dium on May 27 and July 13, 1993, respectively, and the complaint
issued on July 28. Stadium filed its charge in Case 4–CB–6960 on
July 13, 1993, and the complaint issued thereon on August 31 and
was amended on November 8. The cases were consolidated by order
dated October 19; and the hearing was held in Philadelphia, Pennsyl-
vania, on November 30 and December 1. On the first day of the
hearing, the parties settled the complaint in Case 4–CB–6960.
2 All dates hereafter mentioned refer to the year 1993, unless oth-
erwise stated.
Local Union No. 274, Hotel Employees and Res-
taurant Employees International Union, AFL–
CIO and Stadium Hotel Partners, Inc., General
Partner, and 35 Limited Partners, d/b/a Sta-
dium Hotel Partners, L.P. d/b/a Holiday Inn-
Philadelphia Stadium. Cases 4–CP–441, 4–CP–
442, and 4–CB–6960
August 31, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On February 9, 1994, Administrative Law Judge
Benjamin Schlesinger issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief. The
General Counsel filed exceptions, and the Respondent
filed a brief in opposition to the General Counsel’s ex-
ceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and briefs and has
decided to affirm the judge’s rulings,2 findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local Union No. 274,
Hotel Employees and Restaurant Employees Inter-
national Union, AFL–CIO, Philadelphia, Pennsylvania,
its officers, agents, and representatives, shall take the
action set forth in the Order.
William Slack, Esq. and Sheila Mayberry, Esq., for the Gen-
eral Counsel.
Bernard N. Katz, Esq. and Adam H. Feinstein, Esq. (Meranze
and Katz), both of Philadelphia, Pennsylvania, for Re-
spondent Union.
Philip Keating, Esq. (David & Hagner, P.C.; Jay P. Krupin,
Esq., on the brief), of Washington, D.C., for the Charging
Party.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge. The
consolidated complaint alleges that Respondent, Local Union
No. 274, Hotel Employees and Restaurant Employees Inter-
national Union, AFL–CIO (the Union), engaged in recog-
nitional picketing for more than 30 days in violation of Sec-
tion 8(b)(7)(C) of the National Labor Relations Act, 29
U.S.C. § 151 et seq. The Union denied that it violated the
Act in any manner, insisting that it picketed at first solely
to protest the unfair labor practices of Charging Party Sta-
dium Hotel Partners, L.P. (Stadium) and, later, solely to pub-
licize Stadium’s payment of substandard wages and benefits.1
Jurisdiction is conceded. Stadium, a limited partnership
consisting of Stadium Hotel Partners, Inc., general partner,
and 35 limited partners doing business as Holiday Inn-Phila-
delphia Stadium, has its principal place of business in Phila-
delphia, Pennsylvania, where it is engaged in the operation
of a hotel and restaurant known as the Holiday Inn-Philadel-
phia Stadium (Hotel). During the year ending July 28, 1993,
Stadium derived gross revenues in excess of $500,000 and
purchased and received goods valued in excess of $50,000
directly from points outside the Commonwealth of Pennsyl-
vania. I conclude, as the Union admits, that Stadium is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. I also conclude that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
Until 1991, Colonial Philadelphia Limited Partnership (Co-
lonial) operated the Hotel, which was then known as the Air-
port Hilton Inn. The Union represented a unit of service em-
ployees at the Hotel since approximately 1974, its most re-
cent collective-bargaining agreement with Colonial being ef-
fective on October 1, 1990, and expiring by its terms on Sep-
tember 30, 1995. Among its provisions, the agreement pro-
vides that it shall be applicable to any successor or assign
of Colonial. In 1991, Security Pacific Credit Corporation
(Security) acquired legal title to the Hotel and contracted
with Richfield Hotel Management, Inc. (Richfield) to manage
it. Security and Richfield adopted the collective-bargaining
agreement and recognized the Union as the representative of
the employees covered by the agreement. After taking con-
trol, Security changed the name of the Hotel to the Philadel-
phia Court Hotel.
In mid-December 1992, Stadium, in conjunction with GF
Management Co. (GF), made an offer to purchase the Hotel
from Security. On January 11, 1993,2 Security sent Stadium
a proposed agreement which required the assumption of the
collective-bargaining agreement. GF, which was to become
the management company of the Hotel, objected that the as-
983HOTEL & RESTAURANT EMPLOYEES LOCAL 274 (STADIUM HOTEL PARTNERS)
sumption was ‘‘overly restrictive and create[d] serious obsta-
cles to [the] ability [of the buyer] to make operational
changes at the Hotel.’’ It advised that it had no intention to
hire all the seller’s personnel. As a result, there is no such
provision in the agreement of sale, which was entered into
on January 22. Rather, the agreement provided, in part, that:
‘‘Buyer and Seller hereby acknowledge that all individuals
employed by Seller shall be deemed terminated as of the
Closing Date and that Buyer is a new employer and as such
has completed [sic] discretion over hiring decisions in ac-
cordance with applicable federal, state and local law.’’ Fur-
ther, the parties agreed: ‘‘[T]he compensation of employees
working as of the Closing Date will be paid by Seller for
all shifts commencing prior to the Closing Date and shall be
paid by the Buyer for all shifts commencing after the Closing
Date.’’
The title closing was scheduled for February 25, and it
began that morning, but for a variety of reasons (problems
with the transfers of vehicles and liquor license, for example)
did not conclude until somewhere between 11 p.m. and 2
a.m. that night. Because of the delay, the counsel for Sta-
dium wrote to the counsel for Security confirming their
agreement that: ‘‘[M]anagement of the Hotel will transfer to-
morrow at 3:00 p.m. Until such time, Richfield Management
Company will remain responsible for the management of the
Hotel and its employees.’’ By shortly before 3 p.m. on Feb-
ruary 26, neither Security nor Richfield had informed the
employees that their employment was terminated. But, at
about that time, GF Regional Manager Roger Murphy held
a meeting at the Hotel with those individuals who had been
employed there by Security and Richfield and told them of
the sale and the need to make major changes. He announced
that: ‘‘[W]e are temporarily closing the hotel starting today.
We expect to be reopening on Friday, March 5th.’’ He fur-
ther stated:
We understand that you probably have questions
about jobs and we look forward to meeting all of you.
As I explained, we are a new employer and have no in-
formation about any of you. In fact, we do not have
employee files or other documents from your employer.
For this reason, we ask that if you are interested in
working with us you come to the hotel ballroom on
Monday or Tuesday between 10:00 a.m. and 7:00 p.m.
in order to complete an application for employment.
We will be conducting interviews at those times.
Unfortunately, we are not in a position to tell you
that everyone will be hired. Because of the changes that
are so important for this hotel, we may be eliminating
or modifying some classifications, or adjusting service
or performance levels. We can tell you that we are
committed to employing the best qualified individuals
for all positions. We hope to see you next week.
Stadium curtailed operations at the Hotel between Feb-
ruary 26 and March 5. It told its guests that it could not pro-
vide them with services and asked them to move to other fa-
cilities. Many did, however, fewer than a dozen guests who
had been present in the Hotel on February 26 remained dur-
ing this period, although they were not serviced by any em-
ployees and had to clean their own rooms. In addition, three
functions (a cocktail reception, a breakfast and seminar, and
a bridal shower) which had been scheduled prior to February
26 went ahead as scheduled on February 26, 27, and 28,
serviced solely by GF management personnel. Stadium (or
GF) was paid for these events, although they were contracted
prior to Stadium’s purchase of the Hotel. (All receipts from
the operation of the Hotel after the closing of title were paid
to and retained by Stadium (or GF) and not reimbursed to
Richfield.) Normal operations of the Hotel resumed on
March 5 with only 15 employees; and after that date, the
complement of employees increased to about 70 by June,
when Stadium changed the name of the Hotel to its current
name.
On February 26, Stadium General Partner Kenneth
Kochenour wrote to union secretary-treasurer, Patrick
Coughlan, notifying him of Stadium’s purchase, its closing
of the Hotel, and its offer to accept applications for employ-
ment on March 1 and 2. In addition, he wrote that Stadium
did not wish to adopt any collective-bargaining agreement.
The Union was displeased. First, representatives of Stadium
and the Union met on March 1. Union Attorney Bernard
Katz started the meeting by asking Kochenour if he was
going to recognize the Union or if he wanted a war.
Coughlan stated that Stadium had to recognize the Union,
and Katz added that it was in Stadium’s best interest to do
so. The Union’s desire to be recognized is also evidenced in
Union Attorney Michael Katz’ letter of March 4 to Sta-
dium’s attorney:
As we indicated at our meeting held on March 1, 1993,
it is the intent of the Union to negotiate with your cli-
ent concerning the continued employment of bargaining
unit employees, terms and conditions of employment
including any desired modifications to the existing col-
lective bargaining agreement, and other matters relating
to the transition of ownership to your clients as it per-
tains to labor relations. It is also our desire to negotiate
with your client concerning the decision to terminate
operations during the week of March 1 and concerning
the effects of such termination as well as your client’s
termination of the existing employees.
It is my understanding that your client declines to
recognize Local 274 and to negotiate with it concerning
any of the above-mentioned issues.
Stadium’s rejection prompted the Union to file an unfair
labor practice charge in Case 4–CA–21488 on March 3, al-
leging violations of Section 8(a)(1), (3), and (5) of the Act.
The Union complained that Stadium terminated the employ-
ees, unilaterally abrogated the collective-bargaining agree-
ment without bargaining with the Union, and failed and re-
fused ‘‘to recognize [the Union] as collective-bargaining
agent for bargaining unit employees, . . . and to bargain
with the Union concerning the decision to terminate the oper-
ation of the Hotel for a period of time.’’ On March 4 or 5,
in conjunction with the filing of the charge, the Union com-
menced picketing; because, as Coughlan testified, the Union
had every reason that Stadium was not going to rehire all of
the employees whom the Union represented and that Stadium
was not going to deal with the Union. The Union continued
to picket on each day from then, except for Easter Sunday,
April 11 through July 3, when, as will be seen, it stopped
for 1 day. Most of the pickets carried signs stating, ‘‘Holiday
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 ‘‘Scab’’ is defined in The American Heritage Dictionary, Third
Edition (1992), as a ‘‘worker who refuses membership in a labor or-
ganization’’ and a ‘‘strikebreaker.’’ The use of the word does not
necessarily imply a recognitional object in all instances. Here, how-
ever, the Union’s object was the replacement of ‘‘scabs’’ with its
members in order to regain recognition by Stadium.
4 The Union filed this as an amended charge. There was, however,
nothing to amend because the original charge had already been dis-
missed. The Regional Director treated the charge as a new one.
5 The letter was not introduced in evidence.
Inn—unfair.’’ At no time did the Union file a petition under
Section 9(c) of Act seeking an election among Stadium’s em-
ployees and certification by the Board that it was the rep-
resentative of such employees.
Section 8(b)(7)(C) prohibits a labor organization from
picketing any employer where an object thereof is forcing or
requiring it to recognize or bargain with the labor organiza-
tion as the representative of its employees, or forcing or re-
quiring the employees of the employer to accept or select
such labor organization as their collective-bargaining rep-
resentative, when the labor organization is not currently cer-
tified as the representative of such employees and when the
picketing has been conducted without a petition under Sec-
tion 9(c) being filed within a reasonable period of time not
to exceed 30 days of commencement of such picketing. Rec-
ognition or bargaining need not be the sole object for a vio-
lation to occur. Service Employees Local 73 v. NLRB, 578
F.2d 361, 373 (D.C. Cir. 1978); NLRB v. District Council of
Carpenters of Suffolk County, 387 F.2d 170, 173 (2d Cir.
1967); Stage Employees IATSE Local 15 (Albatross Publica-
tions), 275 NLRB 744 (1985). Coughlan’s admission that the
picketing resulted from Stadium’s refusal ‘‘to deal with the
Union’’ is, by itself, sufficient to prove an illegal object. His
admission is consistent with the very relief that the Union’s
March 1 meeting and unfair labor practice charge sought and
was rejected—recognition of the Union and adoption of its
collective-bargaining agreement. Automotive Employees
Local 618 (S & R Auto Parts), 193 NLRB 714 fn. 1 (1971).
His admission is also consistent with the fact that the pick-
eting followed immediately on Stadium’s rejection of its de-
mands for relief, a certain indication that the Union was
seeking on the picket line what it could not obtain at the
meeting. Building 7 Construction Trades Council (Fisher
Construction), 149 NLRB 1628, 1643–1644 (1964); Retail
Clerks Local 1557 (Giant Foods), 217 NLRB 4, 9–10
(1975).
Its conduct on the picket line supports this finding. Shortly
after the picketing began and on at least another occasion,
Coughlan told a police officer that the Hotel ‘‘was a union
hotel, and they threw all the union employees out. And that
they [the Union] would be out there for as long as it took
for this to remain a union hotel.’’ Coughlan later explained
that: ‘‘Eighty people would be hired back or nothing.’’ The
Union’s picket signs made the very same complaint, that Sta-
dium was ‘‘unfair’’ by employing scab labor, instead of the
Union-represented employees Stadium declined to continue
to employ. On May 19, a rally was conducted at the Hotel,
organized by the Philadelphia AFL–CIO Central Labor
Council (Council), but effectively led by Coughlan. To ob-
tain his members’ attendance at the rally, Coughlan wrote
that it was being held to support the Union’s members who
had been forced to strike by the new management of the
Hotel. The individuals participating at the rally chanted, ‘‘Put
them back to work Ron [a reference to Ron Jaworski, an-
other of the general partners of Stadium],’’ ‘‘Union yes;
scabs no,’’3 and ‘‘You ain’t Union, you ain’t shit.’’ There
were a number of speakers, including Coughlan, union presi-
dent, and business manager, Robert Baker, and Joseph
Rauscher, then president of Bakery Workers and Confec-
tionery Workers Local 6 and later president of the Council,
who stated, ‘‘Let the message go out from here today, if he
don’t sit down and negotiate with this Union, this hotel will
not operate.’’ Coughlan’s participation in and presence at the
rally, his introduction of the speakers, and his failure to dis-
associate the Union from the remarks of all the speakers,
constitute an adoption and ratification of the remarks, which
are wholly consistent with the object of the Union; and the
Union is responsible for them. Service Employees Local 87
(West Bay Maintenance), 291 NLRB 82, 83 (1988).
On May 25, Union Business Agent Thurston Hyman stated
that the union pickets would block all entrances until the
Union received a contract from Stadium. On June 16,
Coughlan spoke to prospective patrons of the Hotel over a
loudspeaker, stating: ‘‘Please do not patronize this scab
hotel.’’ The next evening, June 17, there was a night baseball
game being played at Veterans Stadium, which is located
across from the Hotel. During sporting events, the Hotel
rents space in its parking lot to individuals attending the
sporting events. The Union picketed the Hotel during the pe-
riod immediately preceding the start of the game, and one of
the union pickets used a loudspeaker to communicate with
individuals attending the game: ‘‘Scab hotel. $3 parking
across the street. $4 at the scab hotel. All scabs working in
there.’’
The Union’s conduct at the picket line dramatically evi-
dences its demand for recognition. The Union also continued
to prosecute its unfair labor practice charge. On May 18, the
Regional Director for Region 4 refused to issue a complaint,
finding that Stadium was not a joint employer with Security
and so was not involved in the termination of the employees
and was not a party to its predecessor’s collective-bargaining
agreement. Thus, he concluded, contrary to the Union’s posi-
tion, that Stadium ‘‘had no obligation to recognize or bargain
with the Union as the representative of its employees, or to
abide by the Union’s collective bargaining agreement.’’ The
Union appealed the refusal, and the General Counsel denied
the appeal on June 22. The Union filed a motion for recon-
sideration which was denied on July 30. Thereafter, on Octo-
ber 12, the Union filed a new charge (Case 4–CA–22157),4
alleging the same claim of successorship as had been con-
tained in its earlier charge, but based on claimed newly dis-
covered evidence. On November 23, the Regional Director
dismissed the new charge and refused to issue a complaint.
That the Union was attempting to obtain recognition is
demonstrated by other legal actions it took. It filed on March
5 a demand for arbitration with the American Arbitration As-
sociation (AAA) charging that Stadium, Security, and Rich-
field had violated the recognition and successors clauses of
the collective-bargaining agreement and seeking, inter alia,
the reinstatement of all bargaining unit employees. Appar-
ently, Stadium took exception to the claim that it was a party
to the agreement.5 In reply, on April 2, counsel for the
Union wrote to the AAA:
985HOTEL & RESTAURANT EMPLOYEES LOCAL 274 (STADIUM HOTEL PARTNERS)
6 The letter also was not introduced in evidence.
It is the position of Local 274 that Stadium Hotel Part-
ners, L.P. functioned as a joint employer with Richfield
Hotel Management during times both relevant and ma-
terial to the disputed issue, and engaged in certain con-
duct creating liability as an employer under the collec-
tive bargaining agreement. Having functioned as a joint
employer during times material to this dispute, Stadium
Hotel Partners, L.P. cannot now attempt to avoid obli-
gations created under the collective bargaining agree-
ment on the claim that it is not signatory to that agree-
ment. In the alternative, Stadium Hotel Partners, L.P.
acted in a manner making it a successor to Richfield
Hotel Management under the terms of the collective
bargaining agreement.
Again, on April 16, apparently under questioning from the
AAA about the reason that Stadium should be retained as a
party to the arbitration proceeding,6 union counsel wrote:
On February 26, 1993, Stadium Hotel Partners, L.P.
executed an agreement to purchase the Hotel from Se-
curity Pacific and Richfield. For at least thirty (30) days
prior to that date, Stadium Hotel Partners, L.P. jointly
managed and operated the Hotel with Richfield and was
actively involved with the day to day operation of the
facility. At all times during this period, Stadium Hotel
Partners, L.P. in conjunction with Richfield and Secu-
rity Pacific, acted consistent with the terms of the col-
lective bargaining agreement and functioned as a joint
employer. As a result, Stadium Hotel Partners, L.P. be-
came party to and bound by the existing collective bar-
gaining agreement. It is only at this juncture, subse-
quent to the agreement of sale, that Stadium Hotel Part-
ners, L.P. has taken a position that it has no obligation
to continue to adhere to the terms of the agreement.
It is well established that an employer by its conduct
can adopt or otherwise become party to an existing col-
lective bargaining agreement. It is no defense thereafter
for the employer to contend it has no obligation on the
basis that it never technically executed a new copy of
the agreement or that its name does not appear on the
face thereof. The American Arbitration Association, as
an administrative tribunal, does not have the jurisdiction
to determine the issues which are now being raised.
Such matters fall within the purview of the Arbitrator
or the courts. With all due regard to the AAA, I submit
that this matter should simply proceed with normal case
administration unless and until any of the employer en-
tities obtains an adjudication from a tribunal of appro-
priate jurisdiction to the contrary.
The demand for arbitration was still pending at the time
of this unfair labor practice hearing, and the arbitration hear-
ing was scheduled to be held on January 11, 1994. If suc-
cessful, the Union will force Stadium to recognize it because
Stadium will be bound by the collective-bargaining agree-
ment which so requires. The Union seeks to avoid the obvi-
ous by claiming essentially that no self-respecting arbitrator
would grant the relief that the Union sought, that the Union
was merely ‘‘inviting’’ Stadium to play a part in the arbitra-
tion, and that the Union had no intention at the arbitration
of asking for the award of damages against Stadium. How-
ever, the arbitration demand and the letters which explained
the Union’s position are utterly contrary to this new claim,
which is novel and unsupported and a feeble effort aimed at
avoiding the clear consequences of the Union’s actions.
The Union contends that its picketing was intended to pro-
test the Stadium’s unfair labor practice—mass termination of
the bargaining unit employees it then employed, as the suc-
cessor to Security or Richfield. It reaches the conclusion that
Stadium was a ‘‘successor’’ on the basis of the following ar-
gument: Under the agreement of sale, the parties agreed that
title would pass at the closing. Title passed late on February
25, from 11 p.m. to 2 a.m.; and so Stadium became the
owner of the Hotel at that time. It, therefore, became the em-
ployer of the Hotel’s employees, whom it employed from
then until 3 p.m. on February 26, about 13–16 hours. The
letter extending the time of Richfield to assume the manage-
ment of the Hotel was not legally effective because any
amendment of the agreement of sale had to be in writing,
signed by the ‘‘party to be bound’’; and it was not signed
by Security. Therefore, the Union contends that Stadium
could not have delayed its employment of the employees.
However, this conclusion is inconsistent with what the par-
ties were attempting to accomplish. The agreement makes
clear that the employees were to be deemed discharged be-
fore the buyer bought the business. The buyer was not to as-
sume the Union’s collective-bargaining agreement. Counsel
was certainly aware that, if Stadium bought the Hotel with
the employees, it might be found to be the successor because
then there might be continuity in the work force, which ex-
ists when a majority of the successor’s employees were those
of the predecessor. Fall River Dyeing Corp. v. NLRB, 482
U.S. 27, 46 (1987). Consistent with the parties’ under-
standing, when the delay in the closing prevented the buyer’s
immediate takeover of the Hotel (it could hardly be expected
that there would be a changing of management guard at 2
a.m. or at a different time in the middle of the night, depend-
ing on the preparation of the last escrow agreement at the
closing), the parties agreed to extend the time when the
buyer would assume the management of the Hotel. That is
the agreement reflected in the letter from Stadium’s counsel
to Security’s. And that is what happened.
Counsel for the Union wanted to prove that Security paid
the wages of the employees that were incurred for shifts that
commenced after the closing. However, Stadium’s counsel
represented that was not so; and the hearing was not closed
pending the Union’s call for an additional hearing to dem-
onstrate that counsel’s representation was inaccurate. The
Union did not request an additional hearing, because it was
unable to prove that Stadium paid any of the employees for
those 13–16 hours. There is no evidence to suggest the con-
trary, or that Stadium ever exhibited any indicia of becoming
the employer of those remaining employees. Richfield’s
comptroller clocked out the employees. Murphy’s speech on
February 26 merely announced that the Hotel had been sold
and that arrangements had been made for interviews of appli-
cants for employment with the buyer. Thus, he terminated no
one. And, up to the time that he made that speech, he and
Stadium had hired no one. There was no reason that they
should have: the purchaser of a business is not obliged to
hire the seller’s employees. Howard Johnson v. Detroit Joint
Board, 417 U.S. 249, 261 (1974), citing NLRB v. Burns Se-
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The Union does not contend in this proceeding, as it did before
the AAA, that Stadium was a joint employer with Security or Rich-
field and the collective-bargaining agreement was binding on Sta-
dium. It is not a joint employer because Stadium did not retain ‘‘for
itself sufficient control of the terms and conditions of employment
of the employees employed’’ by Security or Richfield. NLRB v.
Browning-Ferris Industries, 691 F.2d 1117, 1123 (3d Cir. 1982);
Cabot Corp., 233 NLRB 1388 (1976), enfd. sub nom. Chemical
Workers Local 483 v. NLRB, 561 F.2d. 253 (D.C. Cir. 1977). The
three companies do not ‘‘share or co-determine those matters gov-
erning the essential terms and conditions of employment.’’ NLRB v.
Browning-Ferris Industries, 691 F.2d at 1123; emphasis in original.
Stadium had nothing at all to do with the labor relations relating to
or conditions of employment of those employees who worked at the
Hotel prior to 3 p.m. on February 26.
8 The mere fact that the Union contends that its picketing is legal
publicity picketing intended to advise the public about Stadium’s
substandard wages and benefits does not insulate the Union from at-
tack. It has often been pointed out that labor organizations frequently
use substandard conditions as a reason to conceal the true reason for
the picketing, and the Board has not been averse to examining care-
fully the activities to ensure the reason is not pretextual. Service Em-
ployees Local 87 (Liberty House/Rhodes), 223 NLRB 30, 34 (1976).
9 The parties stipulated that the wages and benefits provided by
Stadium to its employees since March 5 are lower than the wages
and benefits provided to employees covered by the Union’s collec-
tive-bargaining agreements in the Philadelphia metropolitan area.
However, Coughlan testified that, for Stadium to comply with area
wages and standards, it had to adopt the same terms of employment
as were contained in the Union’s collective-bargaining agreement
that was binding on Security. While Attorney Bernard Katz stated,
in answering Stadium’s request for a list of the area standards, that
the Union was not ‘‘implying . . . that the labor cost and condition
package must be in the precise form which we maintain,’’ he added
that ‘‘the Union is willing to evaluate any provision of wage, ben-
efit, and applicable economic condition, which your client may in-
tend to place into effect, in order to ascertain whether these would
be the monetary standard equivalent of the Union’s wage and benefit
standard levels.’’ Insistence on compliance with the specific terms
of the agreement is the functional equivalent of bargaining and dem-
onstrates a recognitional and not a proper area standards object.
NLRB v. Electrical Workers IBEW Local 265, 604 F.2d 1091, 1097
(8th Cir. 1979); Teamsters Local 456 (Construction City Corp.), 233
NLRB 418, 419–420 (1977); Retail Clerks Local 899 (State Mart),
166 NLRB 818, 823–824 (1967), enfd. 404 F.2d 855 (9th Cir.
1968).
10 The Union’s use of nonarea standards signs occurred on about
25 occasions, diminishing over time.
11 The Union’s attempt to distinguish this decision is unavailing.
First, the Board found that, despite the union’s claim that its pick-
eting was solely aimed at the employer’s substandard conditions, the
union’s filing of an unfair labor practice charge alleging that the em-
ployer refused to honor a current collective-bargaining agreement
and the union’s appeal from the dismissal of that charge indicated
that the picketing was recognitional. Second, the Board is not bound
by an Advice Memorandum, including the one relied on by the
Union, Carpenters Local 258 (Sabotka Co.), Case 3–CP–369 (Sept.
28, 1988). Third, that memorandum does not reverse Shepard Ma-
rine, supra, particularly because the union there had never previously
curity Services, 406 U.S. 272, 280 fn. 5 (1972). There is thus
a complete void of evidence that Security ever became the
employer of anyone.
Even assuming that it did, that it employed these employ-
ees for 13–16 hours, it would still not be a successor. The
determination of successorship is made when the successor
has begun normal operations, Fall River Dyeing Corp. v.
NLRB, 482 U.S. at 51, with a substantial and representative
complement of employees. Id. at 48–49. The employment of
Security’s employees was meant to be merely temporary,
pending the closing of the Hotel for reevaluation of its needs
and hiring of personnel. The determination of whether Sta-
dium was a successor would be appropriately delayed until
it commenced its regular operation. Galis Equipment Co.,
194 NLRB 799 (1972). The record shows that, of 70 em-
ployees ultimately hired by Stadium, only 3 were formerly
employed by Security. (Stadium offered employment to
about nine more of Security’s employees, but they rejected
the offers.) Of the 15 employees initially hired by Stadium,
no more than 3 could have been employed by Security. Thus,
Stadium did not employ a majority of its predecessor’s em-
ployees, and it could not constitute a successor.7 Because the
Union picketed for more than 30 days and did not file a peti-
tion seeking an election, I conclude that the Union’s pick-
eting through July 3 violated Section 8(b)(7)(C) of the Act.
The Union did not picket on July 4, but it picketed on
each day from July 5 through September 12. The Union
claims that it did not picket on July 4 (1) to create a hiatus
so that it could commence picketing to protest substandard
wages and benefits being provided by Stadium and (2) to
comply with an informal settlement of the unfair labor prac-
tice charges filed by Stadium in this proceeding. However,
assuming that the Union engaged in legal substandard pick-
eting,8 a conclusion that Coughlan’s testimony does not sup-
port,9 the Union’s picket signs did not uniformly commu-
nicate this object. Although most of the signs stated, ‘‘Holi-
day Inn—unfair—area wages and standards’’ and ‘‘Holiday
Inn—unfair—area wages and benefits,’’ some read, ‘‘This
hotel—unfair,’’ ‘‘Holiday Inn—unfair,’’ ‘‘Ron Jaworski is an
unfair employer,’’ ‘‘Ron Jaworski unfair,’’ ‘‘Jaworski
sucks,’’ and ‘‘Scab hotel—unfair,’’ all of which signify the
very same recognitional object as the picketing prior to July
4.10 Newspaper & Mail Deliverers (Macromedia Publishing),
289 NLRB 537, 540 (1988). Indeed, one morning, about July
18, there were no signs present which mentioned substandard
wages. Furthermore, Coughlan was present on the picket line
at the Hotel for a portion of July 6 and, using a loudspeaker
to communicate with Hotel patrons, stated: ‘‘This is a scab
hotel, please do not cross the picket line’’; ‘‘Picket lines
have been up for four months, please honor the picket line,
do not support this scab hotel’’; and ‘‘All workers were fired
in February, please honor the picket line.’’ Thus, Coughlan
viewed the dispute as a continuing one, one that started 4
months before when Stadium purchased the Hotel and did
not retain the union represented employees. The recognitional
object remained. American Federation of Casino Employees
(New Pioneer), 166 NLRB 544, 549 (1967). The Union was
still attempting to obtain employment for its terminated
members, a ‘‘bargaining’’ objective within the meaning of
Section 8(b)(7). Graphic Communications Local 1-M
(Heinrich Envelope), 305 NLRB 603, 605 (1991).
In addition, the Union never retracted its demand for rec-
ognition. Newspaper & Mail Deliverers (Macromedia Pub-
lishing), supra; Plumbers Local 129 (Gross Plumbing), 244
NLRB 693 (1979). It also continued to pursue its arbitration
proceeding and unfair labor practice charge, which had rec-
ognition as their object. Carpenters District Council of De-
troit (Shepard Marine Construction), 195 NLRB 530, 531
(1972).11 Although Coughlan learned about Stadium’s failure
987HOTEL & RESTAURANT EMPLOYEES LOCAL 274 (STADIUM HOTEL PARTNERS)
engaged in picketing that would have been covered by Sec.
8(b)(7)(C), and its unfair labor practice charge was filed when its
picketing was undeniably lawful.
12 At the close of the hearing before me, the Regional Director’s
motion in Federal court to punish the Union for contempt was await-
ing hearing.
13 The use of the term ‘‘non-union,’’ in the circumstance of this
proceeding, was directly aimed at Stadium’s refusal to rehire the em-
ployees of Security and refusal to recognize the Union as their col-
lective-bargaining representative. Its use was far from the ‘‘solely in-
formational’’ use in NLRB v. Teamsters Local 239, 340 F.2d 1020,
1023 (2d Cir. 1965), relied on by the Union.
14 Stadium protested the location of the sheet, and it was subse-
quently moved from the Hotel property to the other side of the side-
walk, where it remained for 3 hours.
to meet area standards in early March, he failed to show any
interest in protesting that failure until after the Board’s Re-
gional Office determined that the Union’s unfair labor prac-
tice charge against Stadium had no merit and the Union’s
motion for reconsideration had been dismissed, thus showing
that the change of direction was merely a pretext for the
picketing that the Union wished to continue. NLRB v. Build-
ing Trades Council of Delaware, 578 F.2d 55, 59 (3d Cir.
1978). In addition, the Hotel was the only facility that
Coughlan was interested in. His Union had not picketed any
other hotel for substandard conditions for 12–15 months
prior to the time when it began its area standards picketing
of Stadium, indicating that this was, at best, an ancillary or
secondary reason for the Union’s protest. Teamsters Local
115 (Nate Ben’s Reliable), 224 NLRB 388, 390 (1976).
Finally, the change of direction of the Union from its
original ‘‘unfair’’ signs to those emphasizing substandard
conditions was merely one of convenience. On June 24, the
Regional Director petitioned for an injunction under Section
10(l) of the Act against the Union in the United States Dis-
trict Court for the Eastern District of Pennsylvania (Civil Ac-
tion No. 93-3357). Bernard Katz told him that he had to ac-
cept a hiatus or he could not picket at all. Over Coughlan’s
opposition—he did not want any pause in picketing and he
wanted to continue to ‘‘have some type of force there’’—he
agreed to the hiatus. But Coughlan also wanted the employ-
ees to have at least the ability to ‘‘walk around with their
heads held high and not down that they had lost everything,’’
and Katz recommended that the Union establish a new line
protesting substandard wages. As Coughlan explained, ‘‘So
rather than continuing picketing, we ceased picketing, and
then instituted a new line.’’ This demonstrates that the
Union’s object had hardly changed. Building Trades Council
of Philadelphia (Altemose Construction), 222 NLRB 1276,
1280–1281 (1976), enfd. mem. 547 F.2d 1158 (3d Cir.
1976).
The Union contends that the Board is estopped from seek-
ing any remedy in this proceeding because the Union settled
it. On July 6 the Regional Director forwarded a proposed in-
formal settlement agreement to Stadium, but Stadium did not
agree to it. Rather, it vehemently opposed the settlement.
Section 101.7 of the Board’s Statements of Procedure re-
quires the Regional Director to approve the settlement, but
he also did not sign the settlement agreement. Thus, there
was no agreement, and there is no evidence that the Union
was misled into believing that there was one. Gladstone’s 4
Fish, 282 NLRB 1285, 1287 and fns. 6 and 7 (1987). In any
event, even if the Union had legitimately thought that the
agreement had been approved, it nonetheless breached the
agreement by continuing to picket for recognition after it
signed the agreement. Equity will not permit the Board to be
estopped by a party which violates the very agreement it re-
lies on. Wallace Corp. v. NLRB, 323 U.S. 248, 253–255
(1944).
A 10(l) injunction issued on September 7. Again, to create
a hiatus and recommence picketing with a valid object, the
Union did not picket at the Hotel from 1 p.m. on September
12 until 6 a.m. on September 14, when it resumed picketing,
which has continued to the date of the hearing.12 Since pick-
eting resumed on September 14, the pickets have displayed
signs stating, ‘‘Holiday Inn-Philadelphia Stadium is destroy-
ing our area wages and standards. Local 274 Hotel Employ-
ees and Restaurant Employees AFL–CIO.’’ However, be-
cause the Union has continued to prosecute the arbitration
proceeding, its object never changed. Furthermore, during the
baseball playoffs in October, Coughlan telephoned the public
relations director for Major League Baseball asking that he
not have its representatives remain at the Hotel because the
Hotel was ‘‘non-union.’’ Coughlan was not interested in
where either of the baseball teams stayed, and whether their
hotels were represented by a union or whether they paid sub-
standard wages and benefits. In connection with a rally to be
held at the opening of the Series, Rauscher, then Council
president, wrote: ‘‘[I]n way or another, there have been eight
months of picketing. It is and has been a tough struggle.’’
His letter attached a leaflet, approved by Coughlan and the
Union’s attorney, referring to the Hotel and its parking facil-
ity as ‘‘NOW A NON-UNION CONCERN.’’13 The leaflet
makes no mention of any area standards dispute. Recognition
was still what the Union was seeking, as one time evidenced
by a bed sheet which pickets originally hung on Stadium’s
property14 and which bore the following: ‘‘They bought the
bricks and the mortar, not the employees. That’s why we’re
out here.’’ Again, that shows the desire of the terminated
employees to be rehired, a recognitional and bargaining ob-
ject.
The unfair labor practices found here, occurring in connec-
tion with Stadium’s business, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Union has engaged in an unfair
labor practice, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act.
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 The complaint alleges that Food Drivers, Helpers & Warehouse-
men Employees Philadelphia & Vicinity, and Camden and Vicinity,
New Jersey-Local 500 a/w International Brotherhood of Teamsters,
AFL–CIO and Gas Works Employees Union, Local 686, S.E.I.U.,
AFL–CIO also picketed the premises of Stadium as agents of the
Union within the meaning of Secs. 2(13) and 8(b) of the Act. The
record shows that they were present at rallies sponsored by the
Council on May 19 and June 7 and 17. However, the General Coun-
sel, while contending in his brief that the Union must ‘‘bear . . .
responsibility for their misconduct,’’ fails to allege that either local
engaged in any misconduct that should be attributed to the Union,
and no additional violations of the Act are added by including these
allegations of agency. Nor do the allegations affect the remedy. If
warranted, a cease-and-desist order is granted pro forma against the
labor organization and its officers, agents, and representatives.
At the hearing, the General Counsel subpoenaed officers of both
organizations to testify. That cost the Board money for subpoena and
attendance fees. One witness appeared with counsel, and I assume
that counsel was paid by his client. Witnesses’ valuable time was
lost, and time was wasted at the hearing, not only eliciting their tes-
timony but also waiting for them to appear. And for what purpose?
Absolutely none. I find the allegations mere surplusage, and I grant
the Union’s motion to strike these allegations.
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
17 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record,15 I issue the following recommended16
ORDER
The Respondent, Local Union No. 274, Hotel Employees
and Restaurant Employees International Union, AFL–CIO, its
officers, agents, and representatives, shall
1. Cease and desist from picketing or causing to be pick-
eted Stadium Hotel Partners, Inc., general partner, and 35
limited partners doing business as Stadium Hotel Partners,
L.P. doing business as Holiday Inn-Philadelphia Stadium,
where an object thereof is forcing or requiring the Employer
to recognize or bargain with it as the representative of its
employees or forcing or requiring its employees to accept or
select it as their bargaining representative, in violation of
Section 8(b)(7)(C) of the National Labor Relations Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its business office and meeting halls, copies of
the attached notice marked ‘‘Appendix.’’17 Copies of the no-
tice, on forms provided by the Regional Director for Region
4, after being signed by Respondent’s authorized representa-
tive, shall be posted by Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Respondent, if willing, at all
places where notices to employees are customarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS FURTHER ORDERED that the complaint in Case 4–CB–
6960 be severed and continued under my jurisdiction, pend-
ing compliance with the terms of the settlement agreement
signed by the parties on November 30, 1993.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket or cause to be picketed Stadium
Hotel Partners, Inc., general partner, and 35 limited partners
doing business as Stadium Hotel Partners, L.P. doing busi-
ness as Holiday Inn-Philadelphia Stadium, where an object
thereof is forcing or requiring the Employer to recognize or
bargain collectively with us as the representative of its em-
ployees or forcing or requiring its employees to accept or se-
lect us as their bargaining representative, in violation of Sec-
tion 8(b)(7)(C) of the National Labor Relations Act.
LOCAL UNION NO. 274, HOTEL EMPLOYEES
AND RESTAURANT EMPLOYEES INTER-
NATIONAL UNION, AFL–CIO