San Francisco Local Joint Executive Bd. of Culinary Workers v. N.L.R.B.

• Decision Date: 21 June 1974
• Docket Number: Nos. 73-1489,73-1579 and 73-1605,s. 73-1489
• Citation: 163 U.S.App.D.C. 234,501 F.2d 794
• Parties: 86 L.R.R.M. (BNA) 2828, 163 U.S.App.D.C. 234, 74 Lab.Cas. P 10,127 SAN FRANCISCO LOCAL JOINT EXECUTIVE BOARD OF CULINARY WORKERS et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent (two cases). SAN FRANCISCO LOCAL JOINT EXECUTIVE BOARD OF CULINARY WORKERS et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, McDonald's System of California, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 794

501 F.2d 794

86 L.R.R.M. (BNA) 2828, 163 U.S.App.D.C. 234,

74 Lab.Cas. P 10,127

SAN FRANCISCO LOCAL JOINT EXECUTIVE BOARD OF CULINARY

WORKERS et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent (two cases).

SAN FRANCISCO LOCAL JOINT EXECUTIVE BOARD OF CULINARY

WORKERS et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, McDonald's

System of California, Inc., Intervenor.

Nos. 73-1489, 73-1579 and 73-1605.

United States Court of Appeals, District of Columbia Circuit.

Argued April 5, 1974.

Decided June 21, 1974.

David Nevins, Washington, D.C., of the bar of the Supreme Court of Minnesota, pro hac vice, by special leave of court, for petitioners. Barry S. Jellison and David J. Salniker were on the brief for petitioners.

Robert A. Giannasi, Atty., NLRB, with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, NLRB, were on the brief, for respondent.

Wesley J. Fastiff, San Francisco, Cal., with whom Robert M. Lieber, Washington, D.C., was on the brief, for intervenor in No. 73-1605.

Before WRIGHT and MacKINNON, Circuit Judges, and DAVIES, ^* Senior District Judge.

J. SKELLY WRIGHT, Circuit Judge:

The petitioner union requests review of three orders issued against it by the National Labor Relations Board. Though each of these orders was based upon findings that the union had picketed specific employers in violation of Section 8(b)(7) of the National Labor Relations Act, 29 U.S.C. 158(b)(7) (1970), the orders were framed broadly to restrain the union from picketing any employer in violation of Section 8(b)(7). We hold that in each case the NLRB's findings of union violations of the Act were supported by substantial evidence considered on the record as a whole, ¹ but that the orders cannot be enforced so broadly framed. We shall discuss the evidence supporting the Board's unfair labor practice findings in the three cases before turning to the broad order issue common to all the cases.

I. NO. 73-1489

In this case the Board found the union to have violated Section 8(b)(7)(B) of the Act by picketing the two employer members of the Associated Union Street Restaurants for the purpose of obtaining recognition as the collective bargaining agent of the employees of these employers within 12 months of a valid Board representational election. ² The union concedes that it picketed the employers with a recognitional objective and that it continued to do so shortly after the Board conducted an election in which another labor organization failed to obtain representational status. However, it contends that the NLRB's election was not, as required by the terms of Section 8(b)(7) (B), a valid one. The union's position rests on two theories, both of which the Board had sufficient evidence to reject.

First, the union argues that by processing the election the NLRB transgressed one of its self-imposed jurisdictional limitations. Though Congress has vested in the Board 'the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause,' NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 313, 9 L.Ed.2d 279 (1963), the Board long ago recognized that the limited amounts of money appropriated to it to administer the Act required it to adopt minimum jurisdictional standards. ³ Under one of these standards, the Board will not assert jurisdiction over the labor relations of a retail enterprise unless it has annual gross revenues of at least $500,000. E.g., Carolina Supplies & Cement Co., 122 NLRB 88, 89 (1958). Neither of the picketed restaurants individually has gross revenues of this size. However, the Board has long held that where a multi-employer bargaining unit is appropriate, the economic impact of the employers is to be combined for purposes of determining whether the jurisdictional standards are met. See NLRB v. Sightseeing Guides & Lecturers Union Local 20076, 2 Cir., 310 F.2d 40, 42 (1962). Here the trial examiner, and the Board by adopting his report, determined that a bargaining unit combining the employees of the two picketed restaurants was appropriate because the restaurants had incorporated an association to which they had mutually and unequivocally committed their collective bargaining and because the only labor organization which had provided any evidence of employee support had agreed to a multi-employer unit.

The Board's acceptance of the appropriateness of a multi-employer unit, and thus its assertion of jurisdiction, was both within its statutory discretion and consistent with its past exercise of that discretion. The Board has been vested by Section 9(b) of the Act with 'a broad discretion to determine appropriate units.' Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947). This discretion has been employed with judicial approval to recognize multi-employer units where there is either "a controlling history of collective bargaining on such basis, or an unequivocal agreement of the parties to bind themselves to a course of group bargaining in the future." NLRB v. Johnson Sheet Metal, Inc., 10 Cir., 442 F.2d 1056, 1060 (1971), quoting Electric Theatre, 156 NLRB 1351, 1352 (1966).

The trial examiner's decision adopted by the Board found such an unequivocal agreement in the instant case to be evidenced by the bylaws of the association the employers created to perform their collective bargaining jointly. By one of the articles of the bylaws the employers authorize the association to be their 'exclusive representative in collective bargaining.' ⁴ The union stresses that the bylaws also effectively permit either employer to reject any agreement negotiated by the association. ⁵ However, the Board has declined, quite reasonably we think, to rule that employers in a multi-employer unit must agree in advance to accept every jointly bargained agreement as long as the employers did not retain the freedom to bargain individually and sign individual contracts. E.g., Air Conditioning Co. of Southern California, 81 NLRB 946, 951 (1949). The union argues that bylaws provisions prescribing the manner and the amount of notice for resignation from the association also render inappropriate the multi-employer unit. But the Board has regularly permitted employers to withdraw from multi-employer units at appropriate times, not including periods of substantive bargaining, even in the absence of prior withdrawal agreements. See, e.g., Sullivan Mining Co.,101 NLRB 1366, 1369 (1952); Milk & Ice Cream Dealers of Greater Cincinnati Area, 94 NLRB 23, 25 (1951). There was, of course, no provision in the multi-employer bargaining agreement here which permitted withdrawal during substantive bargaining. Thus the Board was correct in holding that the provision for resignation from the multi-employer unit does not negate the employers' intent and commitment to bargain jointly expressed in the bylaws.

The union's second basis for arguing that the Board election was invalid is even less firm than its challenge to the Board's jurisdiction. The union contends that it should have been permitted to intervene in the representation proceeding and election precipitated by another union. The Board's denial of intervention, however, was in complete accord with reasonable and established Board practice. The Union Street Organizing Committee, a labor organization completely separate from petitioner here, petitioned the Board for a representation election, making the requisite showing of support from more than 30 per cent of the employees of the two restaurants. See NLRB Rules and Regulations 101.18, 29 C.F.R. 101.18 (1973). The Organizing Committee and the employer association then agreed to a consent election. Though Section 9(c)(1) of the Act, 29 U.S.C. 159(c)(1) (1970), provides for pre-election Board hearings, waiver of such a hearing as stipulated by the parties in this case is expressly endorsed by Section 9(c)(4). Under Board procedures another union may intervene, block a consent election, and participate fully in any representation proceeding upon a showing that it has the support of as few as 10 per cent of the employees in a unit claimed to be appropriate. NLRB Field Manual 11022.3(c) (1968); Corn Products Refining Co., 87 NLRB 187 n. 2, 192 n. 14 (1949). In addition, another union may be included on the ballot upon designation of support from as few as one or two employees. NLRB Field Manual 11022.3(d); Fostoria, Ohio, Works of National Carbon Div., Union Carbide & Carbon Corp., 89 NLRB 460 (1950). In this case petitioner was notified by telegram of the proceedings and asked to demonstrate its support. Since this telegram and another request a week later failed to move petitioner to make any showing whatever, we think the Board was justified in following its procedures to deny petitioner intervention, including a place on the ballot. ⁶

II. NOS 73-1579 AND 73-1605

These cases arise under another clause of the recognitional picketing provision of the Act, Section 8(b)(7). In both cases the NLRB held that the union violated Section 8(b)(7)(C), 29 U.S.C. 158(b)(7)(C), by engaging in recognitional picketing for more than 30 days without filing a representation petition before the Board. ⁷ The union challenges the NLRB's decision in these two cases on two grounds. First, the union denies that the picketing was engaged in for a recognitional purpose. Second, it contends that, even if recognitional, the picketing was lawful under the second proviso of Section 8(b)(7)(C). That proviso states:

That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the...