Pancho's Villa

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pancho's Inc. d/b/a Pancho's Villa and Anchorage Local Joint Executive Board of the Hotel and Res- taurant Employees Local 878 and Bartenders Local 883, AFL-CIO and Tulio Garcia. Cases 19-CA- 10503 and 19-CA-10510 September 26, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On June 7, 1979, Administrative Law Judge James T. Baker issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. I In finding, as did the Administrative Law Judge, that Respondent is engaged in commerce, we rely on the additional fact, admitted by Respon- dent but not set forth in the Administrative Law Judge's Decision, that Respondent during the 12-month period from August 30, 1977, to August 30. 1978, purchased, and caused to be transferred and delivered to its facilities goods and materials valued in excess of $50,000 from sources outside the State of Alaska, or from suppliers within said State which obtained such goods and matenals directly from sources outside said State. The Administrative Law Judge, in his discussion of a meeting between Respondent's co-owner, Nash Gomez, and Umnion Business Agent Busby, inadvertently stated that Gomez' refusal to sign the association contract did not "render futile an effort on the part of Respondent to take further initia- live," when in fact he was referring to further initiative by the Union. In addition, the Administrative Law Judge inadvertently referred to a July 7 meeting between the Union and a group of "employees" when in fact this meeting was with a group of employers. We hereby correct these inadvertent errors, which in no way affect our decision herein. DECISION STATEMENT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This case was heard before me at Anchorage, Alaska, on February 21, 1979, pursuant to an order consolidating cases, consoli- dated complaint and notice of hearing issued on August 30, 1978, by the Regional Director of the National Labor Rela- tions Board for Region 19.' The consolidated complaint which alleges violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, hereinafter called the Act, is based upon a charge and an amended charge filed in Case 19-CA-10503 by Anchorage Local Joint Executive Board of the Hotel and Restaurant Em- ployees Local 878 and Bartenders Local 883, AFL-CIO, hereinafter called the Union, on June 20 and August 1, respectively; and upon a charge filed in Case 19-CA- 10510 on June 20, by Tulio Garcia, an individual. At the hearing, the parties were accorded full opportunity to make opening statements, introduce relevant evidence, examine and cross- examination witnesses, and to file briefs. Counsel for the General Counsel availed himself of the opportunity to make an opening statement, counsel for Respondent filed a legal memorandum addressed to the issues raised in Case 19-CA-10510, and both counsel timely filed briefs with me. Based upon the entire record in this case, my observation of the witnesses, and the briefs of the parties, I make the following: FINDINGS OF FACT 1. JURISDICTION Pancho's Inc., d/b/a Pancho's Villa, hereinafter called Respondent or the Company, is a corporation organized in 1973 under the laws of the State of Alaska, by Ann and Nash Gomez, husband and wife, who own 99 percent of the outstanding shares of the corporation. Nash Gomez is pres- ident of Respondent; Claude Manee, owner of I percent of the outstanding shares of the Company, is vice president; and Ann Gomez serves as secretary-treasurer. These offi- cers, and an attorney-at-law, constitute the board of direc- tors. Until August 1978, Respondent engaged in the opera- tion of a restaurant at a single location in Anchorage. In August 1978, Respondent opened a second restaurant in Wasilla, Alaska, approximately 40 miles from Anchorage. Both restaurants operate under the name Pancho's Villa. In 1975, Ann and Nash Gomez purchased a facility known as Ann's Club, which they own and operate under a partnership in which they are the only partners. Between 1975 and February 1978, Ann and Nash Gomez managed the Pancho's Villa restaurant operation and Ann's Club. Considerations relating to the health of Nash Gomez led in February 1978 to the designation of Ford De Ybar- rando to manage the Pancho's Villa operation and Joe Lo- pez to manage Ann's Club. In June 1978, the health of Nash Gomez improved to a point where he could resume nominal management of Pancho's Villa in Anchorage. When the Wasilla operation opened in August 1978, De Ybarrando became manager of that facility. At pertinent times, Nash Gomez dealth with the Union concerning grievances, was responsible for collective-bargaining discus- sions, and signed the collective-bargaining agreements with I Unless otherwise specified. all dates herein refer to the calendar year of 1978. 245 NLRB No. 65 440 PANCHO'S VILLA the Union covering the employees employed by Pancho's Villa and at Ann's Club. The Pancho's Villa operation and Ann's Club used the services of the same accounting firm and and have bank accounts at the same bank. The insurance coverage of the two enterprises was obtained from the same insurance com- pany. Payroll, tax, and accounting statements for Pancho's Villa and Ann's Club are prepared by the same accountant. and checks for the two enterprises are signed by Ann or Nash Gomez. In February 1979, 11 individuals were employed on a full- or part-time basis at Pancho's Villa in Anchorage, and eight individuals were employed on a full- or part-time ba- sis at Ann's Club. Transfer of employees between the two facilities is infrequent but has occurred on at least two occa- sions. No employee on the payroll of one of the facilities has worked at the other facility while so employed. Food prepared at Pancho's Villa Anchorage operation is fre- quently purchased by employees of Ann's Club for con- sumption at Ann's Club by the employees employed there.2 On the basis of the evidence establishing in common ownership, financial control, and management of Pancho's Villa and Ann's Club; centralized control of labor relations centered in Nash Gomez, and a degree of interchange and interrelationship of operations. I find that Pancho's Villa and Ann's Club constitute a single integrated enterprise for jurisdictional purposes. See, Radio and Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mo- bile, Inc., 380 U.S. 255 (1965). Respondent admits, and I find, that during the 12-month period August 30, 1977, to August 30, 1978, Pancho's Villa and Ann's Club, in the course and conduct of their business operations, had gross sales of goods and services valued in excess of $500,000. Accordingly, I find that at all times material herein, Re- spondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Caro- lina Supplies and Cement Co., 122 NLRB 88 (1958); Bren- nan's French Restaurant, 129 NLRB 52, 59-60 (1960). II. THE LABOR ORGANIZATION INVOLVED Respondent concedes, and I find, that at all times mate- rial herein the Union has been a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNLAWFUL CONDUCT A. The Issues The consolidated complaint raises the following principal issues: 1. Whether Respondent failed in its bargaining obliga- tion under Section 8(d) of the Act by refusing to meet and bargain with the Union over the terms of a new collective- bargaining agreement. 2The foregoing is based primarily upon the credited testimony of Ann Gomez as supported by the credited testimony of Ruth Callan, Tulio Garcia. Robert Langley, and documentary evidence. 2. Whether Respondent terminated the emplomeint ot Tulio Garcia for reasons proscribed b the Act. Respondent contends that its failure to meet and bargain with the Union over the terms of a successor contract was due not to the bad faith of its principal managing agent, Nash Gomez. but to the failure of the Union to make a proper demand or request for negotiations. Further. with respect to the termination of Garcia, Respondent contends. in substance, that Garcia was terminated tor cause arising from an instance of aggravated insubordination. and in- directly from Garcia's inability to work harmoniousl with other employees. Moreover, Respondent asserts that Garcia engaged in no protected activity of a concerted nature and that his termination was not motivated by an, consider- ation relating to the Union. B. Pertinent Facrt I. Background facts As found above. Nash Gomez is president of Respon- dent, and his wife, Ann Gomez, is an officer of the corpora- tion. Both are involved in the operation of the Anchorage restaurant facility on a day-to-day basis. At the Anchorage restaurant are approximately 12 are employed, including cooks, waitresses, bartenders, and dishwashers. some of whom are employed on a part time basis onl\. Tulio Garcia was employed as main cook from August 1976 until June 19, 1978, when he was terminated. Commencing in 1973 and continuing until April 30, 1978, Respondent maintained a collective-hargaining rela- tionship with the Union. and the most recent agreement between them was one which was effective from MaN I. 1976, through April 30. 1978. Pursuant to practice. this agreement had been negotiated by the Union with an asso- ciation representing hotel, restaurant, and bar owners ot Anchorage. known as CHAR, and then separately pre- sented to independents, such as Respondent. for adoption. At pertinent times, Ruth Callan, secretary /treasurer of the Union, has had primary responsibility for negotiating col- lective-bargaining agreements on behalf of the Union. She has been assisted in this responsibility by Watson Busbh. a business representative. At all material times, the Union has been the majorit representative of the employees employed in the following unit appropriate for collective bargaining: All employees employed by Respondent at its res- taurant located on Spenard Road in Anchorage. Alaska, excluding office clerical employees. bartenders. guards, and supervisors as defined in the Act. 2. The alleged unlawful conduct a. Alleged Refusal to bargain (I) The negotiating meetings On December 6, 1977. the Union gave written notice of its desire to open negotiations to amend and modify the then-current collective-bargaining agreement scheduled to expire on April 30, 1978. This notice was dispatched to the 441 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employers who were members of the association with which the Union had historically bargained, and to the indepen- dent restaurant operators, such as Respondent, who had become signatory to the association agreement. Covered by the areawide contract, and directly or indirectly involved in the negotiations, are "hundreds of employers." A copy of the December 6 letter was dispatched by registered mail to Respondent at its Anchorage place of business and the re- turn receipt showing a December 9 delivery date was signed by someone other than Nash or Ann Gomez.3 The letter contained a request that the recipients thereof notify Miss Callan by telephone if the proposed December 28, 1977. meeting date was not satisfactory. No notice to this effect was received by Callan from Nash Gomez. who, at prior times, had exercised exclusive authority on behalf of Re- spondent in collective-bargaining matters. This December 28 meeting transpired, as scheduled. But no representative of Respondent attended. Similar dispatch procedures were pursued by the Union with respect to a letter dated May , scheduling a negotiat- ing meeting for May 5. A return receipt showing delivers date to Respondent of May 5, was signed by an individual other than Nash or Ann Gomez. Nash Gomez had no rec- ollection of having received the letter, and he did not attend the May 5 meeting. In early June the Union achieved accord with the associ- ation on the terms of a new collective-bargaining agree- ment. Soon thereafter, Busby went to Respondent's An- chorage restaurant and presented a copy of the agreement to Nash Gomez who perused the document and stated that he would give some thought to the matter. Gomez returned the copy of the agreement to Busby. A few days later Busby returned to the restaurant. and the doors were locked. He observed an individual in the office whom he believed to be a bookkeeper and entered and presented a copy of the agreement to her with a request that she give the document to Nash Gomez. She answered that Gormez was not in. Within a day or 2, Busby returned again to the restaurant and spoke with Ann Gomez who told Busby that Nash Gomez was asleep. Busby did not speak with Nash Gomez on this occasion. Approximately I week later, Busby returned again to the restaurant and met with Nash Gomez. Busby asked Gomez if he had received the copy of the agreement that he had left, and Gomez answered in the affirmative. Busby asked if Gomez were ready to sign the agreement, and Gomez an- swered that he was not. He added that he could not afford to "go union now." Busby answered that other operators in the vicinity were "going union" and they could afford to do so. Gomez answered that he was going to sign the agree- ment and was going to operate nonunion. Busby inquired concerning the bartenders, and Gomez stated that they would be nonunion when their agreement came up for re- newal. Busby answered that he would picket the restaurant premises, and this would hurt business at the establishment. Gomez responded that he would take that chance. 3The identity of the signator was not established in the record, but the document was offered and received without objection. Approximately I week later, the Union erected a picket line at Respondent's place of business in Anchorage. Sev- eral other restaurant operations in the community were also picketed. Nash Gomez visited Busby at Busby's office 3 or 4 days later and requested the picket line be removed. Bushy re- sponded that if Gomez would sign the contract which had been presented to him, the picket line would be removed in "twenty minutes." In furtherance of its dialogue with the independent res- taurant operators, the Union dispatched a letter dated June 27 to, "Anchorage Restaurant Owners." The letter read as follows: To Whom it May Concern: This is to notify you a restaurant contract negotiating meeting will be held at the Union office. 610 W. Sixth Avenue, Anchorage at 2:30 p.m. on Friday, June 30, 1978. Meeting called for ratification of contract changes be- ginning May 1. 1978. A copy of the letter is dispatched to Respondent, and the return receipt was signed on June 28 by an individual other than Nash or Ann Gomez, Gomez testified that he must have overlooked the Union's June 27 communication. He did not attend the meeting on June 30 which was held, as scheduled. However, Gomez learned that the meeting was to be held, and on the day following the meeting, he spoke with one of the restaurant operators who had attended the meeting and was informed that a large number of operators had refused to sign the proffered agreement. Subsequently, on or about July 7, Gomez had a chance meeting with Callan and was infoirmed that a negotiating meeting was then in progress, and Gomez attended that meeting. Subsequent to the expiration of' the collective-bargaining agreement on April 30, Respondent continued to adhere to the contractual wage rates and made no further contribu- tions to the health and welfare and pension funds or to the legal aid trust fund. Busby testified that historically, after negotiations with the association employers had been completed, a large group of independent restaurants, which are essentially small enterprises. "generally appoint a committee to repre- sent or speak for them" and that committee meets with the Union. The resultant agreement, which in 1978. contained the terms negotiated with large enterprises, is circulated by union representatives to the various independent restau- rants for acceptance and signature. Busby characterized this latter document as a "me too" contract. Busby further testified that to his knowledge Gomez had never appointed any specific representative to negotiate on his behalf, and he conceded that in negotiating their contract the represen- tatives of the large hotels and restaurants in Anchorage had not acted on behalf of Respondent or other small restau- rants. In this context, Busby testified as follows: Q. So, the "me too" contract that you brought to Nash Gomez was a contract negotiated by persons as to whom he had no knowledge and no control? A. He wasn't set in on any of the negotiations. 442 PANCHO'S VILLA Q. And no person represented him at an, of the negotiations? A. No. Q. When you visited Mr. Gomez, did you offer to negotiate a contract or was it simply, here's the con- tract that had been negotiated without your signature? A. I just handed him the contract. The "me too" contract to look over. And he never asked me to sit down and negotiate a different contract with me. Q. He told you the contract was unacceptable, did he not? A. He said he couldn't sign it at the present time. Q. Did you offer to sit down with him and negotiate a contract that would be acceptable? A. No, I did not. Q. And he, in turn, did not offer a request that you do that? A. No. Q. So, I understand the situation was simply. here's the contract. Take it or leave it? Either sign this or I'll put the pickets up? A. He didn't ask me and I didn't ask him. Of course, you have to understand, if we negotiate a contract for every house, you'd be negotiating the year around. It was standard all over the world. That was a standard contract for hotels and restaurants, which it was a standard contract. Q. So, this was a take it or leave it situation? A. I didn't say that. Q. Well, his option was to either sign your proposal or pickets would be put up? A. The man didn't ask me to do nothing else. Q. Nor did you offer to do anything else? A. No, I did not. b. The alleged unlawful termination At the time of his termination on June 19, Tulio Garcia had been in Respondent's employ for approximately 22 months. On June 19 he served in the capacity of main cook and had responsibility for the preparation of food on the 4 p.m. to midnight shift which he regularly worked 5 days per week, Tuesday through Saturday. His hourly rate of pay was 6.63. Garcia was a member of the Union. A pertinent times, Garcia worked in conjunction with three or four waitresses who would transmit food orders from customers to Garcia for preparation. One of the waitresses with whom Garcia worked for a time was his wife, Anna. Garcia was considered by Gomez to be a competent and reliable em- ployee, but Gomez also received reports during the course of Garcia's employment suggesting that he had frequent clashes of temperament with the waitresses. Ann Gomez observed that the work relationship between Garcia and his wife was often the source of conflict between Garcia and waitresses other than his wife. The Gomezes believed that the disharmony which took place in the restaurant in the proximity of customers was harmful to the business interest of the restaurant. Commencing in December 1977 and continuing until the time of his termination in June 1978, pursuant to an ar- rangement with Nash Gomez, Garcia worked an average of 15 hours per week overtime. His overtime schedule began when the services of a former employee became unavailable to Respondent. Garcia approached Nash Gomez and re- quested permission to work overtime, because he was in need of the money. Gomez agreed to an arrangement whereby Garcia would be paid $6 per hour in overtime. The pay ment was to be on a covert basis. Garcia followed a practice of keeping track of his overtime hours by marking a calendar. Periodically. Gomez would compensate Garcia for his accrued overtime work on the basis of Garcia's com- putations. No deduction from overtime earnings were made. Under the terms of the collective-bargaining agreement, which was effective. by its terms. until April 30. 1978. pre- mium pay of time-and-a-half was to be paid for overtime work. Additionally, contributions were to be made on be- half of employees to the various trust funds, and this contri- bution was to be calculated on the basis of hours worked, including overtime hours. At article 20. the collective-bar- gaining agreement also provided as follows: Section . It is agreed that the Employer shall and does hereby recognize seniority rights and that employees shall be laid off and returned to employment at all time according to their seniority. Senior employees shall have preference of fulltime employment at all times. Seniorityv shall also apply on a reasonable hasis with re- spect to vacations, hours of work, days off and sll/ as- signments. Duty station within a shift shall be made by the employer. (Emphasis supplied.) On June 9. Garcia and Gomez had a conversation con- cerning money allegedly due Garcia for overtime work he had performed during a period of Gomez' prolonged ab- sence from Anchorage. The discussion transpired at ap- proximately 4 p.m. in the kitchen area of the restaurant. The conversation was in Spanish and was witnessed by a waitresses and a dishwasher. Some customers were in the diningroom which is screened from the kitchen by a wall which encloses the kitchen. The discussion evolved into an argument during which Garcia spoke to Gomez in loud tones which could he heard in the dining area. Earlier in the day of June 9, Garcia had approached Go- mez concerning amounts due him for overtime work, and Gomez had written a check to Garcia in the amount of $500. Later, at approximately 4 p.m. that afternoon, Gomez went to the kitchen where Garcia was working, and Garcia asked Gomez why he had not been paid an additional $90 due him in overtime. Gomez asserted, in effect, that the check which he had earlier issued to Garcia covered the amount Garcia was claiming. Garcia challenged this. A dis- cussion followed which caused Garcia to become excited and to shout at Gomez. Garcia stated that he was tired of chasing Gomez for his money. For his part. Gomez re- minded Garcia of past favors wherein he had helped Garcia obtain loans and had assisted him in financial matters. He stated further that he had hired a new employee who had cooking skills, and he did not wish Garcia to work overtime anymore.' Gomez retained his composure through most of ' I specifically find on the basis of Garcia's estimony on cross-examina- tion and redirect examination, and upon careful scrutinL of the testimony of Nash Gomez. that Gomez informed (iarcli he did not bish him to continue to vwork overtime. 443 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the discussion but as the discussion evolved, Gomez raised his voice and called Garcia "a little man" and stated that Garcia was "no good." Garcia responded by inviting Go- mez to "go out and find out if I am little man or not." Gomez did not accept the challenge and regained his com- posure. The discussion ended. Approximately an hour later, Gomez entered the bar area of the restaurant, and Garcia was talking at the bar, Garcia told Gomez that if he was fired he was going home. adding that if he were going to be fired he would take the matter to the National Labor Relations Board or the Union. Gomez told Garcia to go back to work. Garcia did so and completed his shift. In the days following the June 9 dispute between Garica and Gomez, Nash Gomez spoke with Ann Gomez concern- ing the incident and also expressed ambivalence over whether or not to terminate Garcia. Nash Gomez also spoke with De Ybarrando concerning his dispute with Gar- cia. Garcia worked on Saturday and Sunday in accordance with his past practice. Monday was his day off. During the day, Gomez called Garcia and told him to take Tuesday off also. Garcia did so but returned to work on Wednesday. On Wednesday, Garcia spoke with Gomez and informed him that he wished thereafter to have weekends off. Gomez stated that he wanted Garcia to continue to work weekends and to observe Mondays and Tuesdays as his days off. Go- mez noted that their overtime "deal" was terminated. Gar- cia responded that he did not wish to work on Wednesdays, and he wanted weekends off. Gomez declined Garcia's re- quest. Garcia worked on Thursday and during the day was in- formed by Ford De Ybarrando that Gomez wished to speak with him on Friday. On Friday morning, June 16, Nash Gomez confided to his wife, Ann, that he was going to terminate Garcia, and gave as one of the reasons, Gar- cia's demand that he have weekends off. Then, later in the day, Gomez informed Garcia that he was going to be termi- nated. Garcia asked the reason, and Gomez stated that Garcia was trying to rule his restaurant. Garcia denied that he was endeavoring to do this and stated that he merely wanted weekends off. Gomez reminded Garcia of past fa- vors accorded him in connection with a bank loan, and Garcia reponded that he was repaying that favor by work- ing at a $6 rate when the union agreement required pay- ment of approximately $10 per hour for overtime work. Garcia added that he believed that Gomez intended to give the days he had requested to a new employee whom Gomez had just hired. Garcia stated that he had the greatest senior- ity and should have the choice of hours. Garcia added that Gomez had no good reason to fire him, and he was going to the National Labor Relations Board and the Union because Gomez had been using him in that he was not paying him "enough money." Gomez gave Garcia a check for $362, the amount which Garcia claimed was due him through the end of May. Gomez made a notation of the amount paid on Garcia's calendar. After the conversation, Garcia left but returned to the restaurant to work his scheduled 4 p.m. shift. Garcia worked on Friday evening and on Saturday and Sunday. On Sunday Ann Gomez told Garcia that Nash Gomez wished to talk with him on Monday. On Monday morning, June 19, Nash Gomez told his wife Ann that he intended to terminate Garcia. Then, on Mon- day morning, Gomez met Garcia in front of the restaurant and told Garcia that he was terminated and was not needed at the restaurant anymore. Garcia asked the reason for his termination, and Gomez told him that he was trying to "rule his place." Garcia said that all he wanted was Satur- days and Sundays off. Garcia asserted that he had the most seniority on the dinner shift and wanted weekends off for that reason. Garcia added that Gomez had given the work- days which he wished to a new employee. Gomez again stated that Garcia was fired. Garcia left Respondent's em- ploy on June 19. On September 9, 1978, Respondent made an offer of rein- statement to Garcia which General Counsel concedes tolled Respondent's backpay obligation, if any. Nash Gomez testified that he terminated Garcia for in- subordination in front of customers and employees on June 9, and because Garcia was endeavoring to tell him when he was going to work. In due course. Garcia filed a claim for overtime compen- sation with the Wage and Hour Division of the United States Department of Labor. The basis of his claim was the record of overtime hours as marked on his calendar. As a result of the resolution of his claim, Respondent made cer- tain payments. c. The health issue From February until late June 1978, Ford De Ybarrando was in charge of the day-to-day operation of the Anchorage restaurant facility. In February, Nash and Ann Gomez traveled to Palo Alto, California. for the purposes of hospi- talizing their daughter who was suffering from cancer. On February 4 the details of the hospitalization were accom- plished, and Ann Gomez remained in Palo Alto while Nash Gomez was returned to Anchorage. Immediately after his return, Nash Gomez suffered a nervous breakdown, and Ann Gomez was successful in having him institutionalized for a 72-hour period in a facility on the Stanford University Campus. Medication was prescribed for Nash Gomez, and he was released with the directive that he continue a daily regimen of medication. In the following months until early August, Nash Gomez was subject to wide variations in mood and he lacked good functional judgment. He was unable to handle business matters requiring judgmental de- cisions, and his capacity for work was limited to approxi- mate'y I hour per day. d. Credibility The facts in this case are essentially undisputed. The findings above made, which rely for efficacy upon testi- mony of record have been distilled after careful observation of each witness as he or she testified before me, and from an evaluation of all record testimony. In those instances wherein there are substantial substantive variations be- tween the findings made and the testimony of any wit- nesses, or group of witnesses, that testimony has been re- jected. The clarity of testimony elicited from Tulio Garcia 444 PANCHO'S VILLA and Nash Gomez was compromised, to an extent, b a flawed proficiency in their respective usage of the English language. Moreover, the accuracy of the recall of Nash Go- mez with respect to some salient events is believed to have been significantly impaired by the state of his health during the time period most pertinent to this inquiry. The testi- mony of Ann Gomez concerning the state of Nash Gomez' health during the period from February though May 1978. and the role played by De Ybarrando in the management of the Anchorage restaurant during this time frame, has been accepted as reliable because of the strong likelihood that De Ybarrando would have kept Ann Gomez accu- rately informed of matters pertinent to the operation of the restaurant and the health of Nash Gomez out of a realiza- tion that she was deeply concerned with both. Moreover. the testimony of Ann Gomez regarding the state of mind of Nash Gomez at pertinent times finds some significant sup- port in the testimony of Nash Gomez himself. Cf. Fed. R. of Evid., Rules 803 and 804. Conclusions It is axiomatic that an obligation to bargain arises only from a proper demand. See, Professional Building Mainte- nance Division of PBM Industries, Inc. 217 NLRB 127 (1975). Absent membership in a multiemployer or joint em- ployer bargaining group, a single employer incurs no legal or statutory obligation to adopt contractual terms negoti- ated or adopted by other employers through associa- tionwide bargaining efforts, or as a consequence of individ- ual acquiescence, merely because, in the past, with respect to other collective-bargaining agreement, that employer has done so. See, N.L.R.B. v. Independent Association of Steel Fabricators, Inc., et al., 582 F.2d 135 (2d Cir. 1978), denied enforcement, in part, 231 NLRB 264. I find upon the basis of these fundamental precepts, that the General Counsel failed to prove by the preponderance of the credible evidence that Respondent breached its statu- tory obligation to meet and bargain with the Union over the terms of a successor contract covering the wages, hours, and terms and conditions of employment of Respondent's employees employed at its Anchorage restaurant. I reach this conclusion because there is insufficient evidence in the record to establish that at any pertinent time Respondent was the recipient of a proper bargaining request from the Union giving rise to an obligation on the part of Respon- dent to meet and negotiate with the Union. The record evidence reveals that for a number of years contract terms governing employment in unionized restau- rant enterprises in the Anchorage area have been fashioned at the bargaining table at which the Union and the negotia- tors representing employer association members have held sway. The hundreds of independents who hold no member- ship in the employer association, and who have extended no authority to the association to bargain on their behalf, have been, it appears, at best, onlookers in these negotia- tions, with no real voice in the deliberations, and without portfolio to do more than observe, a diversion which many of the independents honored through abstention. The real tenor and substance of these negotiations, in terms of the myriad independents, was cogently described by the Union's chief negotiator, Ruth Callan, who testified that "standard practice" on the part of the Union involved com- pleting its negotiations with the association group and: A. ... Then we go to the independent, smaller res- taurants. Many ot them stated that they didn't have time to participate in the negotiations so they sign a "me too" contract. Q. Okay. So is my understanding correct, after the contract has been negotiated with the Association. then a "me too" contract is provided to the indepen- dent restaurants? A. Right. Q. Okay. Was the agreement reached with the Hotel Association? A. Yes. Q. And when was this? A. About early part of June. * * Q. Okay. In June of 1978. Was this only after the June agreement was reached with the Hotel Associ- ation that the "me too" contract was taken to the inde- pendents? A. Yes. The General Counsel makes much of the fact that the Union received no response from Respondent to its Decem- ber 6 and May I notifications relating to the pendency of Association bargaining sessions, and the inference is that Respondent's passivity was in some manner aberrant, or that it denoted distain for the bargaining process. Nothing in the record supports such a notion. Initially, the efficacy, in terms of a bargaining demand, of an invitation of the type extended by the Union to Respondent and other in- dependent employers through the device of the December 6 letter, as well as the adequacy of the Union's May I "no- tice" to Respondent concerning the pendency of a May 5 association meeting, is open to substantial question, and I find, in the context of the instant record, neither may be viewed as a bargaining demand imposing an obligation un- der the statute upon Respondent to be present, or, in the alternative, to signal its intention not to participate. The December 6 communication was an invitation to Respon- dent, and other independents, to attend a mass meeting of employers devoted to the purpose of negotiating terms of an association contract. The May I communication was so belatedly dispatched to Respondent that it was received on the very day of the scheduled May 5 association meeting. Standing alone neither of these may be viewed as giving rise to a legal imperative on the part of Respondent to attend at the risk of being declared miscreant under Section 8(a)(5) of the Act. This is so, because the instant record reveals that past practice had been for the independents, such as Re- spondent, to wait in the wings, so to speak, until the terms of the associationwide agreement had been determined, and then to enter upon the stage, if even obliquely, through an ad hoc group, whose origin, function, and authority, both in the past, and more significantly, in the 1978 timeframe, is murky, mysterious, and ill-defined by the record evidence. If the 1978 negotiations are to be assumed typical, a type of 445 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grapevine or word-of-mouth update and notification proce- dure is followed by the employer group to informally ap- prise the various independent restaurateur of the progress of discussions, or the pendency or occurrence of contract meetings between the Union and the ad hoc committee and individual operators who volunteered to attend the meet- ing. If these sessions result in a degree of departure from the already negotiated association contract, the record does not reveal it. As the General Counsel's evidence evolved, it seems rea- sonably clear that in early June of 1978, the Union reached accord on contractual terms with the association (CHAR), and separately with the association group representing the large hotels. It was at this point Respondent, and presum- ably other independents, were approached by Union Agent Busby, Callan's assistant, and handled the new contract which constituted the fail accompli of the association en- deavors, and any input, incidental or otherwise, which may have been engendered by and through the activities of the ad hoc committee of independence. It is essential to find, as I do, that the record contains no evidence to support a finding that, with respect to 1978 negotiations, Respondent gave authority, either to the asso- ciation or the ad hoc committee of independents to negoti- ate on its behalf. Thus, the contract submitted to Nash Go- mez, Respondent's principal official, by Busby when Busby made his call upon Gomez early in June, may be viewed as nothing more efficacious than a Union proposal for a suc- cessor contract, which Nash Gomez said he would consider. Then, a week later, Busby met with Gomez and he re- quested that Gomez sign the contract. Gomez' declination was one based on economic grounds. While Busby's version of Gomez' rejoinder suggests that Gomez spoke in terms of going "nonunion," the focus and thrust of Gomez' com- ments was economic and not so declarative of a final and fixed position as to render futile an effort on the part of Respondent to take further initiative in advancing bargain- ing proposals different from those contained in the contract presented to Gomez. None were forthcoming. Busby's strat- egy in dealing with Gomez was one of inflexibility and eco- nomic muscle, calculated and designed to force Gomez to accept the proffered agreement without change, or face the consequences of picketing. Indeed, this strategy is exempli- fied not only by Busby's mid-June meeting with Gomez at which the agreement was proffered and the picketing threat made, but by Busby's assurances given Gomez 3 or 4 days after the picketing actually commenced that the picket line would be removed within "twenty minutes" if Gomez would sign the agreement which had been submitted to him. In short, as Respondent avers, a take-it-or-leave-it ap- proach governed Busby's bargaining strategy and tech- nique. In my view of the record, a refusal on Respondent's part to meet with the Union and negotiate arose, if at all, on and after June 30, a time period when the Union appears to have conducted dicussions with the group of independents. But it is clear from the record that the June 30 meeting of independents was called by the Union for the purpose of ratifying contract changes, and not for the purpose of en- gaging in bargaining table formulation of contract terms, and Respondent was merely one of many enterprises sum- moned to attend the meeting. Respondent chose not to par- ticipate in the meeting, and this decision was entirely con- sistent with that earlier communicated by Gomez to Busby, to the effect that the contract terms which were being prof- fered for adoption by Respondent were unacceptable. The record is devoid of any evidence of a bona fide bargaining request on the part of the Union subsequent to June 30. The chance meeting between Gomez and Callan on July 7 resulted in Gomez attending a group meeting, but it is clear that on that occasion, as on all occasions delineated by the record, the Union was meeting with a group of employees, and Respondent had chosen, as was its right, not to engage in group negotiations. Union interest in maintaining uniform conditions and standards throughout an industry and area, is, of course, a legitimate union objective, but the legitimacy of this objec- tive in no manner obviates the necessity for a proper bar- gaining demand, accompanied by a genuine willingness on the part of the Union to meet and confer in good faith in a manner and context giving rise to an obligation on the part of an employer to be present and participate. I conclude that the Union failed to make the requisite bargaining re- quest, and there arose no imperative on Respondent's part to negotiate with the Union. Similarly, I find no merit in the General Counsel's con- tention that Respondent violated Section 8(a)(l) and (3) of the Act in effectuating the termination of Tulio Garcia. In support of this aspect of the complaint, counsel for the General Counsel in his brief contends: The real reason for Garcia's termination was his de- mand that he be paid according to the rate called for in the last effective collective-bargaining agreement; that he be given the weekends off based on his seniority; and that he was going to take his grievance to the Na- tional Labor Relations Board and the Union. * * * Based on the above discussion, and the pretextual na- ture of Respondent's alleged reasons for Garcia's dis- charge, the only reasonable conclusion is that Garcia was discharged for his activities described above in this instant paragraph. While no cases are cited delineating the precise precen- dential underpinning for the General Counsel's theory of a violation, the rationale proffered in support of the com- plaint has surface similarity to that articulated by the Board in Interboro Contractors, Inc., 157 NLRB 1295, 1301 (1965), wherein the Board in finding a violation of Section 8(a)(1) arising from the termination of some employees for engag- ing in protected concerted activities stated: Without question an employer may lawfully discharge an employee for any reason provided the reason is not conduct protected by the Act. Again the General Counsel has the burden of proving that the discharge was for an unlawful reason. We believe that the Gen- eral Counsel proved a prima facia case of unlawful dis- charge by showing that the discharged employees had made complaints about working conditions which were a protected concerted activity, that the Respon- dent was aware of such complaints and resented them, 446 PANCHO'S VILLA that the discharges were made soon after the com- plaints were registered, and that Respondent contem- poraneously refused to give a reason for the discharges to the discharged employee. These facts warrant the inference, unless rebutted, that the complaints were the reason for the discharges. At the hearing, Respondent did offer evidence which, if accepted, would establish the motivation for the discharges was for cause. How- ever, as set out above, this proffered evidence is so contradictory as to be unworthy of belief. Under these circumstances, we find, contrary to the Trial Examiner, that Respondent discharged the Landers because they had engaged in protected concerted activity and by so doing violated Section 8(a)(1) of the Act. [Citations de- leted.] Initially. I find that Garcia's intemperate display on June 9 served as a precursor to Gomez' decision ultimately to effectuate Garcia's termination, and that Garcia's insubor- dination on that occasion was not the sole consideration. In deciding to terminate Garcia, it is clear, and I find, that Gomez was motivated also by Garcia's adamant pursuit of his request for a change in his assigned days of work. I also find, however, that Garcia's threat to take the matter of his ultimate discharge to the Board or the Union played no role in Gomez' decision. At the outset, it is essential to find, as I do, that, in June when his clash with Garcia occurred, Nash Gomez was ex- periencing mental anguish of a personal type having no relationship to Garcia, or personnel generally. In context of this, Gomez became embroiled in an acrimonious incident in which Garcia was the aggressive personality. Any rea- sonable view of the evidence suggests that Garcia's chal- lenge to engage in fisticuffs was disturbing to Gomez, given the state of his health, even though at the time of the chal- lenge Gomez controlled his emotions, and even though, at the time, he assumed the facade of treating the challenge lightly. Gomez' own testimony, which I credit, accurately defines his state of mind: I might have quieted down [during the argument] be- cause I couldn't take too much pressure. I already found out that it upset me and this might make me blow my brains. But I was able to cool off and if I'd known better ... you know, you don't fight with em- ployees. It was the trauma of this verbal exchange and challenge which. I find, formed the basis for Gomez' preoccupation when an hour later he spoke with Garcia and then to his wife, Ann, he expressed some disposition to terminate Gar- cia. Nothing of record suggests that, in speaking with Gar- cia an hour after the argument on June 9, or later, in ex- pressing ambivalence over retaining Garcia in his employ, Gomez further alluded, in any manner, to Garcia's mild rejoinder that if he were terminated he would go to the Board or the Union. I am convinced that this remark was never given conscious thought by Gomez, who, from Fri- day, June 9, until Wednesday, June 14, evaluated the ques- tion of Garcia's termination solely on grounds of his insub- ordination perpetrated on June 9. It is clear, however, that on Wednesay, June 14, Garcia lodged his request for a change in his work schedule so as to provide him with weekends off, and the record requires the finding that this request, which Garcia advanced on grounds of seniority entitlement motivated Gomez in decid- ing to terminate Garcia. I find, however, contrary to the General Counsel, that Garcia was seeking in his own inter- est alone to invoke his seniority standing, and he did not act for the mutual aid and protection of other employees. The collective-bargaining agreement had expired, and Garcia's claim found grounding in no statute guaranteeing the allo- cation of hours or work days based on seniority. Cf. Inter- horo Contractors, Inc.. supra, New York Trap Rock Corpora- tion, Nytralite Aggregate Division, 148 NLRB 374 (1964); C & I Airconditioning, Inc., 193 NLRB 911 (1971), enforce- ment denied 486 F.2d 977 (9th Cir. 1973); Alleluia Cushion Co., Inc., 221 NLRB 999 (1975). Nor does the evidence support the notion that in vying for a change in his days of work, Garcia was, in some manner, however, indirect, seek- ing to force Respondent to conform to an established term and condition of employment. Aside from the ambiguity of the seniority provision in the expired collective-bargaining agreement, which lodged with management a wide area of discretion in applying seniority to decisions involving shift assignments and hours of work, an ambiguity which neither custom nor practice under the contract appears to have re- solved, the imprimatur of the record is that Garcia was invoking seniority in self-interest as a prequisite of long ten- ure, without consideration to any interest which might re- side with other employees in the unit. In short, in analogy to the observation of the Ninth Circuit Court of Appeals in N.L.R.B. v. C & I Airconditioning, Inc., supra, I am unable to find any evidence that Garcia's complaint concerning seniority was made for the purpose of mutually aiding and protecting any employees other than himself. Nor does the evidence support the other facet of the Gen- eral Counsel's contract enforcement theory arising from Garcia's purported effort to force Gomez to compensate him in the future at overtime rates required by the collec- tive-bargaining agreement, or by Federal statute. The plain fact is that Garcia made no such effort and his only refer- ence to overtime compensation during his discussions with Gomez was a tangential reminder to Gomez that Gomez' professed, past favors to Garcia had been rewarded by Gar- cia's willingness to work overtime at rates less than required by the collective-bargaining agreement. Indeed, Garcia's re- joinder came after Gomez had declared an end to their extra-contractual, covert overtime arrangement. No quan- tum of concerted activity may reasonably be distilled from these reponses. Finally, I find no validity in that aspect of the General Counsel's theory suggesting that Gomez was discriminator- ily motivated in terminating Garcia by Garcia's reminder on Friday, June 16, that if Gomez should terminate him he would seek the aid of the Union. The evidence reveals that, in point of fact, on that very morning Nash Gomez had confided to his wife, Ann, that he is going to terminate Garcia, giving as one of the reasons, Garcia's demand that he have weekends off. As I view the record, the conversa- Presumably, the General Counsel does not allege that Garcia's effort to collect the money due him under his covert overtime arrangement with Go- mez was in any manner protected or concerted activity under the Act. 447 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion which transpired on Friday, June 16, between Nash Gomez and Tulio Garcia was most notable as an indicator of Gomez' unsettled state of mind. For, although the con- versation was a rehash of an earlier dialogue between them, it is clear that Gomez reached the brink of terminating Gar- cia but held back. If Garcia's threat to invoke Union aid served any purpose, I am convinced on the record before me that it caused Gomez to temporarily stay his hand. I am unable to infer from the record, however, that Garcia's threat to go to the Union because Gomez had been "using him" by not paying him "enough money" was given any further thought by Nash Gomez in reaching his decision to end Garcia's employment. The record suggest, and I find, that Gomez was preoccupied in reaching his decision by Garcia's act of insubordination and his demand for a change in his work schedule, and Garcia's threat to seek the aid of the Union concerning overtime work which was no longer being offered had no impact on Gomez' thinking. I find that Garcia's threat to invoke Union assistance was not a factor in Gomez' decision. 6 In sum, I conclude and find that the termination of Tulio Garcia was not discriminatorily motivated within the meaning of Section 8(a)(3) of the Act, nor was it accom- plished in violation of Section 8(a)(1) of the Act because Garcia had engaged in protected concerted activities. Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is, and at all times material herein has been, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. ' It is noteworthy that the complaint contains no Section 8(aX4) allega- tion, and in any event, I find nothing in the events of Wednesday, June 14, or thereafter, to warrant a finding that Garcia's threat to take the matter of his termination, if and when effectuated, to the National Labor Relations Board to have been a consideration in his termination. Cf. Hydraflo Valve & Manu- facturing Co., 158 NLRB 730, 736 (1966). 2. Anchorage Joint Executive Board of the Hotel and Restaurant Employees Local 873 and Bartenders Local 883, AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit of Respondent's employees, is pres- ently, and has been at all times material herein, an appro- priate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed by Respondent at Its restau- rant located on Spenard Road in Anchorage, Alaska, excluding office clerical employees, bartenders, guards, and supervisors as defined in the Act. 4. At all times pertinent herein, the Union has been and remains the exclusive representative of all employees in the above-described unit for the purposes of collective bargain- ing with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment. 5. Respondent did not at any times pertinent herein re- fuse to meet and bargain with the Union for a successor collective-bargaining agreement concerning employees in the above-described unit, and has engaged in no conduct in violation of Section 8(a)(5) of the Act. 6. Respondent did not violate Section 8(a)(l) or (3) of the Act in terminating Tulio Garcia from his former posi- tion of employment. ORDER7 It is hereby ordered that the complaint herein be, and it hereby is, dissmissed in its entirety. In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 448