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National Labor Relations Board v. Chain Service Restaurant

April 10, 1962


Author: Kaufman

Before WATERMAN, KAUFMAN and MARSHALL, Circuit Judges.

KAUFMAN, C.J.: We have before us a petition by the National Labor Relations Board for enforcement of its orders*fn1 against Local 11, Chain Service Restaurant, Luncheonette & Soda Fountain Employees, AFL-CIO ("Local 11"), and the union's Welfare Trust Fund ("Fund"). The orders require Local 11 and the Fund to cease and desist from certain unfair labor practices. This proceeding is unusual for we find two unions pitted against each other with one taking an unaccustomed role as an employer charged with unfair labor practices. The respondents deny these charges with vehemence, and also contend that the Board had no jurisdiction over them. We believe these objections to the Board's orders are without merit, and therefore grant enforcement with one minor modification.

Local 11 is one of 500 locals scattered through 40 states chartered by and affiliated with the Hotel and Restaurant Employees & Bartenders International Union, AFL-CIO. As such it is subject to provisions of the International's constitution which integrate the locals into the parent body. Under this constitution the International has the power to approve or disapprove of local charters and by-laws and can enforce discipline against locals. It also can negotiate nation-wide collective bargaining agreements on behalf of the locals. In 1958 over $250,000 was remitted to the International's offices in Ohio as per capita dues and initiation fees from the locals for their 425,000 members. Local 11, with principal offices in New York City, sent $40,000 to the International in that year on behalf of its 5,500 members.

The Fund was established in 1955 by a trust indenture which combined and continued as a single entity two preexisting funds created for the benefit of employees represented by Local 11. Maintaining offices in New York City (in the same building as Local 11), it is governed by twelve trustees. Six of these trustees are designated by Local 11. The remaining six are chosen by the employers who contribute to the Fund pursuant to the terms of collective bargaining agreements made with Local 11. The Fund obtains life, health, and accident insurance coverage for the employees, as well as dental, medical and hospital care, through the purchase of insurance contracts from a New York insurance company and through contracts made with local dentists, physicians, and hospitals.

These facts are not in dispute.

Unfair Labor Practices

The Board relied on the following evidence in issuing its orders:

Local 11 employed seven women as clerical help, and the Fund employed five women to perform administrative tasks connected with its benefit program. All of these employees were represented for collective bargaining purposes by Local 153, Office Employees International Union, AFL-CIO ("Local 153").*fn2 Furthermore, both Local 11 and the Fund had entered into substantially similar contracts with Local 153 covering the period from January 1, 1957 to December 31, 1958. The contracts featured automatic renewal provisions which operated to extend the contracts' lives for one year periods unless either party terminated them by giving 60 day notice.

On October 6, 1958 the Business Representative of Local 153, Charles Ponti, notified Local 11 and the Fund of his union's intention to terminate the existing agreements at the end of their current term, and of his desire to meet with Local 11 and Fund officers to negotiate new ones (Gen. Counsel Exhs. 4, 9). No response to these letters was received, and in mid-December Ponti again wrote to both Local 11 and the Fund stating his desire to negotiate, this time setting forth particular contract demands. The letters concluded:

"Kindly contact me at your earliest convenience to discuss the above proposals" (Gen. Counsel Exhs. 5, 6).

While this correspondence was in progress, a jurisdictional dispute between Local 11 and Local 153 involving the organization of workers in Childs Restaurant came to a climax. In the previous August, Local 153 had informed Local 11's president Fred Ferrara that it intended to organize the cashiers and checkers at Childs. Although Local 11 was desirous of undertaking a similar effort because it had represented other Childs employees, Ferrara agreed not to interfere with Local 153's organization attempt after that union represented that it already had organized a substantial number of the Childs employees. It later became apparent that Local 153 had not in fact organized a substantial number of these employees; and Local 11's officers, upon reflection, concluded that Local 153 had unfairly outmaneuvered them. Moreover, Local 11's International became interested in the dispute and instructed it to stop Local 153's organization campaign. As a result, when Local 153 on December 15, 1958 filed a representation petition seeking an election among the unrepresented cashiers and checkers at Childs, Local 11 intervened. Local 11 was unable, however, to secure sufficient employee support at Childs, and was subsequently eliminated from the representation ballot.

When Local 11 and the Fund failed to answer Ponti's request for contract negotiations, Ponti spoke to his shop stewards and asked them to try to arrange bargaining sessions. At the end of the year the existing contracts expired; but still no word was received from the employers. Then, during the first week of January (1959), Ponti was informed by the shop stewards that they had heard a rumor that Local 11 and Fund officers were about to demand that all employees resign from Local 153.

On January 8, 1959, the Fund employees were called into the office of Fund Administrator Solomon, and were shown a document purporting to effect the resignation of all of Local 11's employees from Local 153. Solomon referred to Local 11's dispute over Childs and instructed the Fund's employees to add their signatures to the petition saying, "I must have you girls sign this paper, because the girls downstairs signed it" (Bd. App. 103). A Fund employee, Bernice Baruta (who had been a member of Local 153 for 20 years), protested that the Childs dispute had nothing to do with their membership in Local 153; but Solomon replied, "They are taking members away from us and we are going to take members away from them." (Ibid .) Baruta asked permission to call Local 153's Business Agent before anyone signed the petition, but this was refused. Another Fund employee asked Solomon what would be done about negotiating a new contract. She was told that the Local 11 attorneys "would draw up the contract and that she should not worry about the raises and everything" (Bd. App. 104). At Solomon's insistence all of the Fund employees then signed the petition - except Baruta.

On the next day Baruta was told to go downstairs to the Local 11 offices. There, Local 11's president Ferrara demanded that she sign the resignation petition because "all the girls" had done so. Baruta declined and Ferrara warned her of the consequences, saying, "Well, if you don't sign the paper, I guarantee that you will never get another job from a hotel, restaurant ...

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