Dover Tavern Owners' Association

DOVER TAVERN OWNERS' ASSN. 933 Dover Tavern Owners' Association and Bartenders , Culinary Workers and Motel Employees Union, Local 158, AFL-CIO, Petitioner. Case 22-RC-3562. May 23, 1967 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Julius Cohn. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The parties did not file briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board finds: 1. The Employer, Dover Tavern Owners' Association, challenges the Board's jurisdiction. It contends that the members of the Association individually do not meet the Board's jurisdictional standards, and that it is improper to consider the separate businesses of the members as a single entity because the members of the Association do not together constitute an appropriate multi- employer bargaining unit. Dover Tavern Owners' Association was formed in 1960 by tavern owners in the Dover, New Jersey, area. At that time the members elected officers and adopted bylaws. In 1962 and 1964, a committee of tavern owners representing the Association met with representatives of the Petitioner's predecessor, Bartenders, Local 633, to negotiate collective- bargaining agreements. In each instance, after agreement on terms was reached by the negotiators, the committee notified all the Association's members thereof, and the Union prepared separate but identical collective-bargaining contracts which were signed by each Association member. In November 1965, the Petitioner replaced its sister Local 633 as bargaining representative. In December of that year, the Petitioner requested the Association to reopen the 1964 contract which was not cue to terminate until September 15, 1966. The Association acknowledged Petitioner's successorship to Local 633, but denied the request for bargaining before the 1966 termination date of the existing contract. On July 6, 1966, in view of the impending expiration of the existing contract, representatives of the Petitioner met with a committee of the Association to canvass the prospects for concluding a new agreement. Petitioner presented its contract demands and "quite a discussion" ensued. The parties agreed that the tavern owners' committee would bring the Petitioner's proposals before the next meeting of the Association on July 13, and after this meeting would notify the Petitioner of the members' position on the Union's demands. However, the Association did not respond until its committee met again with Petitioner during the first week in September 1966. At that meeting, the committee stated that they did not wish to negotiate with the Petitioner "at that time." Prior to the hearing in this case the Petitioner had never received notice from any member of the Association that it was withdrawing authorization to engage in bargaining from the Association's committee. Nor had the Association ever informed the Petitioner that the Association no longer represented the individual tavern owners for the purposes of collective bargaining. In fact, the following excerpt from a letter written by the Association's attorney to the Petitioner only 6 months before the expiration of the 1964 contract calls attention to the existing pattern of bargaining. . please be assured that both the Dover Tavern Owners' Association . and its individual members recognize Local 158 as the collective-bargaining agent for their employees and will be only too happy to work with Local 158 in harmonious cooperation for the mutual benefit of both groups. If you desire a recognition agreement to that effect, I will submit it to the Association, and it then can be signed either by the Association or by the individual members of the Association. We are pleased to hear that the terms of the existing contracts with Local 633 will be acceptable to Local 158 and I am sure that the bargaining for the new agreements to be effective after September 15, 1966, will go smoothly since there is good will on both sides. On February 10, 1967, between the first and second days of the hearing herein, the Association received letters from 11 of its members stating: Gentlemen, please be advised that it is hereby confirmed that you are not authorized to enter into negotiations or bargaining with any labor organization on behalf of the undersigned. In this case the bargaining history reveals unanimous employer acceptance of the two collective-bargaining contracts negotiated by the tavern owners' committee since the formation of the Association in 1960. The same history reveals the Association's recognition of the Petitioner as the successor to Bartenders' Local 633. Accordingly, we find that the Dover Tavern Owners' Association, by its committee's negotiation and its members' acceptance of the 1962 and 1964 contracts, had created a multiemployer unit for the purposes of collective bargaining. 164 NLRB No. 130 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There remains to be considered the question of whether the attempted withdrawals of 11 individual tavern owners on February 10, 1967, were effective. In this regard, the Board has "maintained a policy of allowing an employer to withdraw from a multiemployer unit, provided the withdrawal is made at an appropriate time, usually prior to the start of multiemployer negotiations."' Here the members of the Association did not attempt to withdraw from the multiemployer bargaining unit until after the start of the hearing in this case on February 7, 1967. This was clearly untimely. Accordingly, we find that the members of the Assocation have not effectively withdrawn from the established multiemployer unit and that such unit is still appropriate for bargaining purposes. In deciding the jurisdictional question we shall, therefore, consider the total business done by members of the Association. Since the record reveals that the tavern owners together annually purchase alcoholic beverages exceeding $2,500 in value from New Jersey distributors who receive such goods from places outside the State of New Jersey, and the combined gross annual retail sales revenue of the Association's members exceeds $500,000, we find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of all bartenders employed by the members of the Association. In view of the fact that the Petitioner's predecessor, Bartenders' Local 633, represented the employees sought herein in an identical unit, and the Employer failed to object to the unit proposed by the Petitioner, except as noted above, we find that the following employees constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All bartenders employed by the members of Dover Tavern Owners' Accociation,2 Dover, New Jersey, excluding all other employees, and supervisors as defined in the Act. [Text of Direction of Election 3 omitted from publication.] i Sound Contractors Association, 162 NLRB 364, 366 2 The individual employer-members of the Association are Idle Hour, Highway Tavern, Dutton Hotel, Old Tye Tavern, Marty's Essex Tavern, Grande's Tavern, East End Tavern, Fred's Tavern, Pal Office Cafe, Charlie's Taproom, Green Lantern, Ken's Tavern, Divvy's Tavern, Johnny's Tavern, and Bill & Dot's Taproom 9 An election eligibility list, containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region 22, within 7 days after the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Excelsior Underwear Inc., 156 NLRB 1236