Local Joint Executive Board, Etc.

National Labor Relations Board - Board Decisions

Apr 27, 1964

146 N.L.R.B. 1094 (N.L.R.B. 1964)

1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum, for the reasons stated , the picketing in issue here has not violated Section
8(b)(7)(C), and I shall, therefore , recommend dismissal of the complaint.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding , I make the following:
CONCLUSIONS OF LAW
1. Sullivan Electric Company is, and has been at all material times, an employer
within the meaning of Section 2(2) of the Act.
2. Building and Construction Trades Council of Santa Barbara County, AFL-CIO,
International Brotherhood of Electrical Workers, Local 413, AFL-CIO, and Inter-
national Union of Operating Engineers , Local No. 12, AFL-CIO, respectively are,
and have been at all material times, labor organizations within the meaning of Sec-
tion 2 (5) of the Act.
3. By picketing a construction project of Sullivan Electric Company, as found
above, the Respondents have not violated Section 8 (b) (7) (C) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and the
entire record in this proceeding , I recommend that the National Labor Relations
Board enter an order dismissing the complaint.
Local Joint Executive Board , Hotel & Restaurant Employees
and Bartenders International Union Locals 19, 266, 420, 503,
and 655 of the Hotel & Restaurant Employees and Bartenders
International Union and Nationwide Downtowner Motor Inns,
Inc., d/b/a Downtowner and Downtowner Motor Inn. Cases
Nos. 17-CB-354 and 17-CP-26. April 27, 1961
DECISION AND ORDER
On August 26, 1963, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in any unfair labor practices requiring
the issuance of a remedial order, and reconunending dismissal of the
complaint in its entirety, as set forth in the attached Intermediate
Report. Thereafter the Charging Party and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.'
The Respondent filed certain exceptions to the Intermediate Report
and a brief in support of the Trial Examiner's recommended dismissal
of the complaint.
The Board 2'has reviewed the rulings of the Trial Examiner. made at
the hearing and finds that no prejudicial error was committed. The
Member Fanning notes that Cartage and Terminal Management Corporation, 130
NLRB 558 , cited by the General Counsel and the Charging Party in support of their allega-
tion that a violation of Section 8(b) (7) (C ) exists here , is distinguishable on its facts.
Unlike his colleagues in Cartage, Member Fanning based his finding of a violation in that
case on his :belief that the picketing there "had as its objects recognition as majority rep=
resentative of applicants [ Riss ' drivers ] for employment with Cartage at a time when
Cartage had no employees ." See 130 NLRB 559, footnote 2. Accordingly , Member
Fanning's conclusion in Cartage is not applicable to the present case.
2Pursuant 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 [Chairman McCulloch and
Members Fanning and Brown].
146 NLRB No. 139.
LOCAL JOINT EXECUTIVE BOARD, ETC. 1095
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record and
hereby adopts the findings, conclusions,' and recommendations of the
Trial Examiner.
[The Board dismissed the complaint.]
3 We find, in agreement with the Trial Examiner, that the sole object of the Respondent's
instant picketing was to compel the Employer to comply with its existing collective-
bargaining agreement. Accordingly, we shall dismiss the complaint Insofar as it alleges
a violation of Section 8(b) (7) (C) of the Act. See Building and Construction Trades
Council of Santa Barbara County, et at. (Sullivan Electric Company), 146 NLRB 1086.
In these circumstances we find It unnecessary to consider or adopt the Trial Examiner's
alternative findings at footnote 12 of the Intermediate Report.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate charges duly filed on January 25, 1963, by Nationwide Downtowner
Motor Inns, Inc., d/b/a Downtowner and Downtowner Motor Inn, by Don T. Baker,
its vice president-operations, hereinafter referred to as Downtowner or Charging
Party, the General Counsel of the National Labor Relations Board, hereinafter called
the General Counsel 1 and the Board respectively, by the Regional Director for the
Seventeenth Region (Kansas City, Missouri), issued its complaint dated March 15,
1963, against Local Joint Executive Board, Hotel & Restaurant Employees and
Bartenders International Union Locals 19, 266, 420, 503, and 655• of the Hotel &
Restaurant Employees and Bartenders International Union, hereinafter called Re-
spondent or Union. The complaint alleged that Respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning of
Section 8(b)(7)(C) and 8(b)(2) of the Labor Management Relations Act, 1947,
as amended, herein called the Act. Copies of the charges, the complaint, and
notice of hearing thereon were duly served upon Respondent and Downtowner.
Respondent duly filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing thereon was held in Kansas City, Missouri on June 25,
1963, before Trial Examiner Thomas S. Wilson. All parties appeared at the hearing,
were represented by counsel and afforded full opportunity to be heard, to produce,
examine and cross-examine witnesses, to introduce evidence material and pertinent
to the issues, and were advised of their rights to argue orally upon the record and
to file briefs and proposed findings and conclusions or both. Oral argument was
waived. Briefs were received from General Counsel, Downtowner, and Respondent
on July 22, 1963.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING PARTY
The Charging Party, whose principal office is in Memphis, Tennessee, owns and
operates a chain of 19 motor hotels in 13 States, including the Downtowner Motor
Inn at Kansas City, Missouri, the only facility here involved and hereinafter called
the Motor Inn. More than 25 percent of the guests at the Charging Party's motels,
including the Motor Inn, remain for less than a month. The Charging Party receives
more than $500,000 gross revenue annually at Motor Inn. The Charging Party
receives at Motor Inn goods, products, and materials from outside the State of
Missouri valued in excess of $10,000 annually.
I find that the Charging Party is engaged in commerce and in operations affecting
commerce.
II. THE RESPONDENT
Local Joint Executive Board, Hotel & Restaurant Employees and Bartenders Inter-
national Union, Locals 19, 266, 420, 503, and 655 of the Hotel & Restaurant
'This term specifically includes the counsel appearing for the General Counsel at the
hearing.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees and Bartenders International Union is a labor organization admitting to
membership employees of the Charging Party.
III. THE UNFAIR LABOR PRACTICES
A. The facts
On April 29, 1962, the newly constructed Downtowner Motor Inn in Kansas City,
Missouri, was opened to the public. Its general manager was John Nichols , Jr., an
experienced hotelman. It was staffed with employees referred to it by Respondent,
employees recruited from other hotels in Kansas City, and through newspaper
advertising.
There was at this time a labor agreement in effect between the Greater Kansas
City Hotel Association on behalf of a large number of the Kansas City hotels and
Respondent which covered the hours, wages, and working conditions of the employees
of the member hotels. This agreement was by its terms to remain in effect until
June 16, 1963, and contained a wage reopener clause effective June 16, 1962. The
agreement also contained a recognition clause as well as clauses providing for union
security, on health and welfare contributions, a no-strike clause, and wage rates
including overtime pay.
John Nichols was hired by the Charging Party in March 1962. He was made
general manager of the Kansas City Motor Inn by Don T. Baker, Charging Party's
vice president-operations, with instructions to'pay his staff union wages and to get
the Motor Inn operating.
Fred Jorgensen, organizer for Respondent, began securing signed authorization
cards from Downtowner employees which from time to time he would show Nichols.
On or about April 20, Jorgensen inquired of Nichols if the Motor Inn was to be a
union house. Nichols stated that he would find out.
At or before this time Nichols requested permission of Baker for the Motor Inn to
join the Greater Kansas City Hotel Association arguing that the Motor Inn would
benefit from the joint negotiations with Respondent and in the Association 's joint
effort to prevent the imposition of a 5-percent city. tax on hotel rooms.
On or about May 1,2 Jorgensen again approached Nichols at the Motor Inn with a
Hotel Association contract, a stack of 40 or 50 signed authorization cards, a claim
that Respondent represented the majority of the Downtowner employees, and a re-
quest that Downtowner execute the Association contract. Nichols showed Jorgensen
a letter from Downtowner headquarters in Memphis, Tennessee, authorizing him to
join the Hotel Association, which Nichols had thereupon done. He thumbed
through a number of the authorization cards handed to him by Jorgensen briefly
and with little, if any, study thereof announced that, as it was obvious Respondent
had the majority of the employees signed, there was only one thing to do and
that was to execute the Association agreement which he proceeded to do on
behalf of the Charging Party by himself as general manager?
Sometime about June, Downtowner headquarters in Memphis requested and
received from Nichols a copy of the Kansas City Hotel Association contract signed
by him for use in another Downtowner dispute in Little Rock, Arkansas. -
Following the execution of this contract by Nichols, Respondent handled one
grievance on behalf of the Downtowner employees which was promptly and in-
formally settled by Nichols. Otherwise, except that the Downtowner abided by the
contract wage scale with the possible exception of time and a half pay for over-
time, the agreement appears to have lain dormant : there was no checkoff of dues,
no contributions to the health and welfare fund , and no attempt to enforce the union
shot) clause so far as the Motor Inn was concerned.
The Hotel Association contract was reopened for wages on or before June 16,
1962. Sometime during these rather protracted negotiations which lasted until Octo-
ber 17, 1962, when the new wage scale was adopted, the Hotel Association invited
Nichols, as manager of the Motor Inn, to participate therein.
However, under date of September 14. 1962. Baker, as vice president, addressed
the following letter to the president of the Hotel Association:
This letter is directed to you for the purpose of confirming the status of the
Downtowner Motor Inn in Kansas City, with respect to our membership in
the Hotel Association of Greater Kansas City. Pursuant to our usual practice,
2 All dates herein are in the year 1962, unless otherwise noted.
8 Nichols execute(] two of the printed FJotel Association-Respondent agreements which
also contained the printed names of the other parties signatory thereto. One such copy
was retained by Nichols and the other by Jorgensen.
LOCAL JOINT EXECUTIVE BOARD, ETC. 1097
we joined the Hotel Association when we began operations in Kansas City, but
it was made clear at that time that membership in the Association did not con-
stitute a designation of the Association as our bargaining representative for
negotiations with any unions representing Hotel employees .4
I wish to reaffirm our position that we do not now, nor have we in the past,
designated or given authority to the Association to represent the Downtowner
Motor Inn of Kansas City, Missouri, in collective-bargaining negotiations with
any labor organization. It has always been our practice to handle these matters
individually and we have, and expect to continue this practice in Kansas City.
Also on that same day, September 14, 1962, Baker, as vice president, addressed a
letter to Respondent reading.as follows:
This is to advise you that the Hotel Association of Greater Kansas City does
not now, nor has it in the past, been given authority to represent the Down-
towner Motor Inn of Kansas City, Missouri, in dealing with your union or
with any other labor organization for the purpose of collective bargaining. Such
matters will be handled by us exclusively .5
Nichols refused to participate in the negotiation of the new wage agreement be-
tween the Hotel Association and Respondent.
The new wage rates agreed upon by the Hotel Association and Respondent went
into effect on. October 17, 1962.
On October 18, Don Baker was in Kansas City. He instructed Nichols to reduce
the maid force even though that might mean working the maids 10 hours per day
6 days a week without overtime pay and that thereafter the maids and hall porters
were to work at least a full 8-hour day exclusive of meal breaks. As ordered, Nichols
conveyed these instructions to the maids and the hall porters. The employees were
unhappy.6
By 1:30 p.m. of that day these employees, led by employee Bruce Masters, had
demanded and received an audience with Baker during which the threat of a walkout
was made. By telephone Baker ordered Nichols to "straighten out" the employees
and "get them off his back."
Nichols again talked to the employees in the linenroom and asked them to resolve
the matter by talk rather than by walkout.
The evidence also shows that twice on the day of October 18, the Downtowner
employees went to union headquarters and on both occasions were told to go back
to work. The employees returned to the Motor Inn.
Later that day Baker refused a request to meet with the employees on the matter.
Subsequently that afternoon the employees went out on strike. Baker candidly
admitted in his testimony that the strike was caused by his own unilateral change in
the working conditions and wages of the maids and porters. This change would
have required the presence of the maids and porters on the premises for an extra
hour or two per day.
On October 19, the 25-35 employees who had walked out the previous day began
picketing the Motor Inn on all four sides, including that area where supplies were
delivered. The pickets wore signs reading as follows: '
Employees of the Downtowner Motel are not being paid the wages or getting
the working' conditions that has been [sic] established in this area by the Hotel
& Restaurant Employees and Bartenders International Union Nos. 19, 266, 420,
503, and 655.
There is no dispute but that this picketing resulted in obstructing deliveries and
the performances of services to the Motor Inn.
Sometime in December, the picket signs were changed to read that the Down-
towner employees were "on strike."
Under date of October 19, 1962, Baker advised Respondent by letter as follows:
You have asserted that this Company, the Downtowner' Motor Inn, is under
contract with your labor organization. If this assertion be true (which we
deny) we wish to advise you that effective immediately the Company is rescind-
ing and abrogating the alleged contract because of a material violation.
* No evidence of such limitation on the Downtowner membership was presented at this
hearing.
s This was the first, and only, such notification Respondent ever received.
6 At the hearing Baker maintained that.. Nichols "misconveyed" these instructions by so
informing the maids in addition to the hall, porters. In view of the fact that it is un-
denied that Baker's instructions to Nichols involved both maids and porters, this explana-
tion has all the earmarks of an alibi.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That was the last communication between the parties hereto until January 4, 1963,
when Baker telephoned Respondent and arranged for a meeting with them at the
Muehlebach Hotel Coffee Shop that morning.
As arranged, Baker, accompanied by Nichols and Assistant Manager George
English, met with Union Representatives Fitzgerald, LeVan, and Prentice at the
Muehlebach Coffee Shop. Baker opened the meeting by asking what the Down-
towner "had to do to get the pickets removed." According to Baker and General
Counsel's witnesses, Fitzgerald answered, "Sign the contract" and reinstate the
strikers. According to Respondent's witnesses, the answer was "Abide by the con-
tract" and reinstate the strikers. There was at this, as at the subsequent meetings,
considerable talk about,the validity of the contract Nichols had signed with Respond-
ent maintaining that it had a valid agreement and Baker maintaining that it had no
contract but, if the agreement were valid, it had been breached by the strike in
derogation of the "no strike" clause included in the Hotel Association contract.
Baker also stated -that he had never seen the contract and asked for one. Thus,
Baker's position appears somewhat inconsistent. Respondent agreed to furnish him
a copy within the hour and did so. "By mistake" Respondent furnished Baker with
a copy of the contract containing the new October 17, 1962, wage scale.
Further meetings between the parties were held on January 7 and 11. Only
Baker and English attended these meetings as Nichols' employment with the Down-
towner ceased on January 5. These meetings were very similar to the one on
January 4. However, on January 7, Respondent did raise the question of three
bartenders at the Downtowner who had continued their employment by crossing
Respondent's picket line. Respondent suggested that these three could no longer
work for the Downtowner. Also at the meeting on January 11, Respondent brought
in their signed authorization cards for Baker's inspection but Baker refused on the
ground that ".the proper way" would be to hold an election among the employees.
It was again pointed out that the Charging Party had already recognized Respondent
when it signed the Hotel Association contract. The meetings were fruitless.
Under date of January 8, 1963, Baker advised Fitzgerald by letter as follows:
We have considered your request that we recognize your Union and sign the
existing contract.
This is to advise you that we cannot do this unless an election is first held
among our employees.
On February 27, 1963, Respondent wrote Baker as follows:
This is to advise you that if you have inferred from any of our conversations
that the picketing at your Kansas City operation is for the purpose of compelling
you or inducing you to terminate employees because they are not members of.
any one of the local unions affiliated with the International Union of Hotel &
Restaurant Employees and -Bartenders, or because they worked during the
strike or behind the picket lines, that such is not the case. If any such sugges-
tion was made, it is hereby withdrawn. As we have informed. you many times,
our picketing has been solely to secure compliance with the existing contract
which was signed by your local manager, Mr. John Nichols.
Respondent brought suit to enforce the May 1 contract.
On April 12, 1963, Respondent's picketing of the Downtowner Motor Inn was
enjoined at the instance of the Board by the Federal District Court. Picketing
thereupon ceased.
Respondent has never_ filed a petition for.certification covering the employees of
the Downtowner Motor Inn.
B. Conclusions
Although all parties managed to get a citation of authority or two into their
briefs, yet there is not a citation which is actually in point here. The reason for this
is, of course, twofold: (1) admittedly,. the Downtowner about May 1, 1962, had
joined .the Greater Kansas City Hotel Association which bargained on behalf of its
members with Respondent; and (2) on or about May 1, 1962, the Downtowner's
General Manager John Nichols actually executed the existing Hotel Association
contract with Respondent. These two facts tend to complicate the instant case.
The gravamen of General Counsel's complaint is a violation of Section 8(b) (7) (C)
which provides: .
It shall be an unfair labor practice for a labor organization or its agents-
(7) to picket or cause to be picketed . . . any employer where an object
thereof is forcing or requiring an employer to recognize or bargain with a
LOCAL JOINT EXECUTIVE BOARD, ETC. 1099
labor organization as the representative of his employees, or forcing or.re-
quiring the employees of an employer to accept or select such labor organ-
ization as their collective bargaining representative, unless such labor
organization is currently certified as a representative of such employees:
(C) where such picketing has been conducted without a petition
under section 9(c) being filed within a reasonable period of time not
to exceed thirty days from the commencement of such picketing . . . .
General Counsel's brief appears to find the above two facts to be immaterial
because he finds that "an object" of the strike of October 19, was "to bargain" over
the unilateral changes in working conditions and wages which Baker had admittedly
ordered the day before.
Even Baker acknowledges that the strike of October 19. was caused by, and in
protest of, the changed working conditions which he had instructed his General
Manager Nichols to make on October 18.
In the light of the legislative history of this section of the Act, General Counsel's
argument appears considerably oversimplified. This is the section of the Act Con-
gress designed to eliminate "blackmail" and "extortion" picketing. Neither appears
present in the instant matter, as General Counsel appears to concede when he elimi-
nates both "recognition" and "organization" as objects of the picketing.
On the other hand, Respondent and the Charging Party discuss the validity or in-
validity of the May 1 contract at considerable length. The Charging Party maintains
that the agreement was invalid because (1) General Manager Nichols was without
authority to negotiate or execute a labor agreement; and (2) the agreement, if valid,
was voided by the October 19 strike which was in derogation of the "no strike"
clause of the agreement?
It was also suggested that the contract of May I with its recognition clause of
Respondent may have been invalid on the ground that Respondent was not at the
time of its signing the representative of the majority of the Downtowner employees.
However, there is no proof one way or the other on that issue. No effort was made
to prove Respondent was only a minority representative.
However, Downtowner General Manager John Nichols was satisfied that Re-
spondent did in fact represent a majority of the Downtowner employees. Nichols
knew the number of employees in the appropriate unit. He knew the number of
union employees referred to the Downtowner by Respondent. He knew the number
of union members recruited from other Kansas City hotels. And he knew the
number of employees who had applied for employment as a result of newspaper ad-
vertising, and thus assumed to be nonunion. Even before seeing the signed authoriza-
tion cards handed him by Jorgensen, Nichols knew the answer to the representation
question. As the Downtowner representative Nichols was satisfied that Respondent
represented a majority of the Downtowner employees. Being satisfied on that
score, Nichols signed the Hotel Association contract on- behalf of Downtowner.
From a legal point of view, with this contract appearing fair on its face and
constituting a defense to the allegations of Section 8(b)(7)(C), at least, the burden
of going forward to prove the invalidity of the agreement fell to the General Counsel.
He did not disprove the majority representative status of Respondent.
The main attack of the Charging Party upon the validity of this agreement was its
contention that Nichols in signing the agreement had acted without authority. This
attack rested upon the testimony of Baker-denied by Nichols-that prior to April 1,
Baker had told Nichols that- all labor agreements had to be negotiated and ex-
ecuted by the Memphis headquarters and- upon the September 14 letters signed by
Baker. informing the Hotel Association and Respondent that the Hotel Association
did not have in the past, nor would it have in the future, any authority to bargain
on behalf of the Charging•Party.8
However, the facts show that prior to May 1 Nichols had requested and was
granted by Baker the right to join the Hotel Association in part, at least, because of
Nichols' representation that joint bargaining through the Association would be ad-
vantageous to the Charging Party.
4 This second contention; made by Baker in his letter of October 18, may he eliminated
from consideration if we assume the validity of the May 1 agreement. In that case,
Baker, having breached the agreement first thereby causing the strike as he himself ad-
mitted. can hardly claim the resulting protest as: justifying Downtowner's "voiding and
abrogating" the agreement. That is not good law.
- e-Significantly these letters do not mention Nichols' alleged lack of authority.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Certainly, the general manager of a hotel has apparent authority to negotiate and
execute contracts on behalf of his hotel, at least in the absence of some expressed
limitation upon such authority publicly known. Surely secret limitations upon a
general manager's authority will not exculpate his principle in circumstances similar
to those existing in the instant case, where the Charging Party admits having seen the
contract executed by its general manager at least by the end of June and stilt
allowed Respondent to continue to believe that it had a binding agreement until
September 14. The time element alone raises the question of an estoppel here..
Furthermore, both Baker and Nichols agree that Nichols had been instructed to pay
the union scale at least.9 Under all these circumstances I must credit the testimony
of Nichols as against that of Baker that there were no limitations upon Nichols'
right to negotiate and execute contracts with labor organizations. The Downtowner's.
claim of no authority appears to have been a legal afterthought.
Accordingly, I must find that the Downtowner was bound by the Hotel Associa-
tion contract signed by it on May 1 along with the recognition of Respondent con-
tained therein.10
"An object" of the picketing is a question of fact to be determined from all the
surrounding circumstances. In the instant case even Baker admitted that the change
in working conditions which he instructed Nichols to relay to the employees on Octo-
ber 18 caused the strike. Obviously, therefore, the object of the employees" in
walking out and picketing was to force the Downtowner to abandon these new work-
ing conditions and to return to the conditions as they were prior to October 18, i.e.,.
for the Downtowner to comply with the terms and conditions of its May 1 agreement.
which Downtowner Representative Nichols had signed with Respondent.
Neither the employees who forced the strike nor the Union which reluctantly
went along with the employees was striking or picketing for recognition, for bar-
gaining, or for organization as each of these things had been successfully accom-
plished upon the execution of the contract on May 1. None of these things was, or
could be, "an object" of the October 19 picketing. The only thing the Union wanted
was a return to the conditions as they existed prior to Baker's unilateral change
thereof on- October 18. Therefore "the," and the only, object of this picket line
was to force the Downtowner to comply with its signed agreement. I so find.
But General Counsel and the Downtowner rely upon one alleged answer by Re-
spondent's agent to Baker's question on January 4, 1963, as to what the Charging
Party had to do in order to get rid of the pickets. The answer, according to Baker,
was,. "Sign the contract." 12 The answer, according to Respondent, was, "Abide by
the contract." As Baker himself candidly admitted that the unilateral change in
working conditions caused the strike, the latter answer seems the more realistic.
Regardless of the word which may have been used by these nonlawyers, it is clear
that the meaning intended was "abide." If the Downtowner had abided by those
agreed-upon wages and working conditions in the first place, there would have been
no strike.
I am not prepared to find a violation of Section 8(b) (7) (C) upon the disputed use
of one word, especially when the intent is so obvious.
It must also be clear that the object of the picketing which began October 19
was not changed in any manner by the answer given by a.union representative in the
Muehlebach Hotel Coffee Shop to a loaded question asked by Baker. The fact Re-
spondent. sought enforcement of this contract in court seems much more cogent evi-
dence. In this regard it is interesting to. note that even the Charging Party could find
no illegal object in the picketing until Baker's question at the January 4 meeting.
Clearly the object of the picketing, and the only object of the picketing which be-
gan October 19 and ended when it was enjoined on April 12, 1963, was to force Re-
spondent to abide by the terms and conditions of the agreement which had been in
D .The record indicates .that the Downtowner had not even been living up to the union
wage scale as far as overtime pay was concerned.
10 Downtowner also maintains that this May 1 agreement was not binding because it
was not signed by Respondent. As the master agreement had in fact been signed by
Respondent, this point is without merit.
"As Respondent sent the employees back to work twice on October 18. It appears clear
that Respondent did not want the strike. Nor did Nichols who pleaded with the employees
to talk and not to walk out.
'-"If it be assumed that this answer was given and, as Downtowner and General Counsel
contend, referred to the new October 17 wage scale , even then Respondent appears to be
on sound legal ground because Downtowner 's attempted withdrawal from the Hotel
Association joint negotiations on September 14 was so belated as to appear to be in-
effectual. See Town & Country Dairy, 136 NLRB 517.
N.Y. PAPER CUTTERS' & BOOKBINDERS ' UNION NO. 119 1101
effect on October 18. I so find, and shall recommend dismissal of the complaint
so far as the Section 8(b) (7) (C) allegation is concerned.
That leaves for consideration the Section 8(b)(2) allegation that Respondent at-
tempted to cause the discharge of three bartenders for their failure to observe Re-
spondent's picket line. I believe that on January 4, 1963, Respondent did in fact
mention the removal of the bartenders as a condition for the end of picketing and
thus, technically, violated Section 8(b)(2) of the Act. However, the facts show
that by letter dated February 27, 1963, Respondent effectively withdrew any such
request, if made. The matter thus has become purely academic at the worst. In
view of this disclaimer, I do not believe it necessary for any order to issue against
Respondent here in order to effectuate the policies of the Act. I will, accordingly,
recommend that this allegation be dismissed also.
Accordingly, I will recommend dismissal of this complaint in toto.
Upon the basis of foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Local Joint Executive Board, Hotel & Restaurant Employees and Bartenders
International Union Locals 19, 266, 420, 503, and 655 of the Hotel & Restaurant
Employees and Bartenders International Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Nationwide Downtowner Motor Inns, Inc., d/b/a Downtowner and Down-
towner Motor Inn, is engaged in commerce within the meaning of Section 2(7) of
the Act.
3. It would not effectuate the policies of the Act to issue an order against Respond-
ent herein.
I recommend that this complaint be dismissed in its entirety.
New York Paper Cutters' & Bookbinders ' Union No. 119, Inter-
national Brotherhood of Bookbinders , AFL-CIO and The Great
Atlantic & Pacific Tea Co., Inc.
New York Press Assistants ' Union No. 23 , International Print-
ing Pressmen and Assistants ' Union of North America, AFL-
CIO and The Great Atlantic & Pacific Tea Co., Inc.
International Printing Pressmen and Assistants ' Union, AFL-
CIO and Printers League Section, Printing Industries of
Metropolitan New York , Inc. Cases Nos. 2-C,D-267-1, 2-CD-
267-3, and 2-CD-267-4. April °27, 1964
DECISION AND DETERMINATION OF DISPUTES
This is a proceeding under Section 10(k) of the Act following
charges filed by, or on behalf of, The Great Atlantic & Pacific Tea
Co., Inc.,' herein called Employer, alleging violations of Section
8(b) (4) (D) of the Act, by the New York Paper Cutters' & Book-
binders' Union No. 119, International Brotherhood of Bookbinders,
AFL-CIO, herein called Local 119 or Paper Cutters, by the New
York Press Assistants' Union No. 23, International Printing Press-
men and Assistants' Union of North America, AFL-CIO, herein called
'The charge in Case No. 2-CD-267-4 was filed on behalf of the Employer by the
Printers League Section, Printing Industries of Metropolitan New York, Inc., herein
called League.
146 NLRB No. 121.