Appeal, No. 151, Jan. T., 1963, from order of Court of Common Pleas No. 1 of Philadelphia County, June T., 1962, No. 2265, in case of Ronnie's Bar, Inc. v. Pennsylvania Labor Relations Board. Order reversed.
James F. Wildeman, Assistant Attorney General, with him Robert D. Ronco, Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Pennsylvania Labor Relations Board, appellant.
Arthur Silverman, with him Ettinger, Gallagher & Silverman, for appellee.
Richard H. Markowitz, with him Richard Kirschner, and Wilderman, Markowitz & Kirschner, for intervenor.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
Ronnie's Bar, Inc. (Ronnie's Bar), purchased a restaurant at 201 North Broad Street, Philadelphia, on November 10, 1960 from the Broad-Race Corporation (Broad-Race), a going concern, which had purchased the restaurant six months previously from Brown's Bar, Inc. (Brown), also a going concern. The restaurant had never ceased operation because of these transactions and, moreover, the personnel employed by the restaurant did not change except as a result of normal fluctuations of employees leaving for their own personal reasons.*fn1
At the time the restaurant was owned and operated by Brown, all the employees were union members, three different union locals being involved; one for the bartenders, another for the kitchen personnel, and a third, the Waiters and Waitresses Union, Local 301, AFL-CIO (Union), for dining room personnel.
Lest it be thought this proliferation of unions unduly burdened the employers it must be noted that all three locals are craft unions of one parent body, the Hotel and Restaurant Employees and Bartenders International Union. Where more than one such craft union local is involved in any one establishment, it may enter into a Local Joint Executive Board contract whereby each craft union negotiates for its members with the employer and the result of each individual craft negotiation becomes a part of the Local Joint Executive Board Contract.
In 1956, an organization known as the Greater Philadelphia Restaurant Association (Association) was formed and, after its formation, the unions negotiated with the Association. The Association and the unions
agreed upon a master contract binding on all members of the Association and the unions in the Local Joint Executive Board of Philadelphia. Brown was a member of the Association and, therefore, bound under the master contract. There is some evidence that Broad-Race had become a member of the Association and there is certainly evidence that Broad-Race did not contribute to the Welfare Fund established under the master contract, or, at the least, did not contribute voluntarily.
At some time before Ronnie's Bar took over the operation of the restaurant, its president and secretary-treasurer met with the president of the Union in the Union's office and informed him that they were taking over but on one condition, i.e., that they would not employ one of the waitresses. Broad-Race's delinquency to the Welfare Fund also was discussed. At a subsequent meeting between the same parties, attended also by the secretary-treasurer of the Union, Ronnie's Bar informed the Union that they would not join the Association. Upon confirmation from the president of the Association that Ronnie's Bar had not joined the Association, the Union then felt free to negotiate independently.
At subsequent meetings, it developed that Ronnie's Bar was unwilling to grant a three-week paid vacation to two waitresses who had worked in the restaurant for periods of over five years. The Union took the position that the waitresses were entitled to this length vacation under the master contract previously in effect; Mr. Chesnick, the secretary-treasurer of Ronnie's Bar, felt that only the length of service with Ronnie's Bar should count toward the computation of vacation entitlement and that previous service with other owners should not be taken into account. Mr. Chesnick had been manager of the restaurant when it was owned by Brown and knew that Brown had a labor contract with the Union and that the employees were Union
members, but he denied that he knew that Broad-Race had such a contract.
Negotiations between the Union, the other craft unions and Ronnie's Bar took place thereafter but always an impasse was reached on the vacation question. Ronnie's Bar was apparently willing to grant the master contract vacation schedule but took the position that the employee's service should date from the time Ronnie's Bar took over, which would mean that, until Ronnie's Bar had been in business for five years, no employee would be entitled to three weeks annual paid vacation. Eventually a number of the employees went on strike on October 8, 1961, one of the strikers being a waitress who had worked over five years in the restaurant.
On October 17, 1961, Ronnie's Bar filed a petition with the Pennsylvania Labor Relations Board (Board) requesting the Board to certify the name of the representative to be designated as the collective bargaining representative for its employees pursuant to Section 7 of the Pennsylvania Labor Relations Act.*fn2 A ...