Nathan's Famous of Yonkers, Inc.

NATHAN'S FAMOUS OF YONKERS, INC. Nathan's Famous of Yonkers, Inc. and Local 50, American Bakery and Confectionery Workers Union, AFL-CIO and Local 1115, Restaurant, Dining Room and Luncheonette Employees Union, and Local 350, Bakery and Confectionery Union, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America Nathan's Famous of Yonkers, Inc. and Local 50, American Bakery and Confectionery Workers Union, AFL-CIO. Cases 2-CA-11732 and 2-RC-15015 October 28, 1970 DECISION, ORDER, AND CERTIFICA- TION OF REPRESENTATIVE BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, the Regional Director for Region 2 issued his Decision and Direction of Election in Case 2-RC-15015 on December 13, 1968, in which he, inter alia, directed that an election be held among the full-time and regular part-time restaurant employees, with certain exclusions, at the Company's Yonkers, New York, place of business.' The election was held on January 10, 1969, the tally of ballots showing that the Petitioner, Local 50, American Bakery and Confec- tionery Workers Union, AFL-CIO, had received 32 votes, incumbent Intervenor, Local 350, no votes, and Intervenor, Local 1115, Restaurant, Dining Room and Luncheonette Employees Union, 20 votes. Two ballots were challenged. Thereafter Local 350 and Local 1115 each filed objections to the election requesting that the election be set aside on the ground, inter alia, that the Company had failed to provide an election eligibility list as required by the Board's decision in Excelsior Underwear Inc., 156 NLRB 1236. On July 1, 1969, the Acting Regional Director for Region 2 issued a Supplemental Decision and Direction of Second Election in which he found merit in the Intervenors' objections based on the absence of the Excelsior eligibility list, found all other objections to be without merit, and directed a second election be held. Meanwhile, on January 21 and 28, 1969, Local 50 had filed charges alleging that the Company had engaged in certain unlawful conduct under Section 8(a)(1), (2), (3), (4), and (5) of the Act intended to 1 The Company and incumbent Intervenor, Local 350, Bakery and Confectionery Workers Union, Bakery and Confectionery Union, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, filed requests for review of the Regional Director's 131 discourage membership in and support for the Charging Union and intended to assist the Interve- nors in the representation proceeding. Then on July 14, 1969, Local 50 filed in the representation proceed- ing its Request for Review and/or Motion to Vacate the Regional Director's Supplemental Decision and Direction of Second Election. Thereafter on August 25, the Board granted the request and decided that "in light of the pending unfair labor practice allegations ... further investigation or hearing is necessary to determine whether the Employer's failure to furnish an Excelsior list constitutes-in all the circumstances of this particular case-a valid basis upon which to set aside the first election." Thus, the Board returned the representation proceeding to the Regional Director for further appropriate processing. On September 12, 1969, the Regional Director issued his complaint in the unfair labor practices proceeding alleging that the Company had violated Section 8(a)(1), (2), (3), and (4) of the Act.2 Four days later he issued his order consolidating Cases 2-CA-11732 and 2-RC-15015. On October 17, 1969, the Company filed its answer to the complaint in which, inter alia, it denied the commission of any unfair labor practices and requested the complaint be dismissed. Subsequently, on November 3, 1969, the Regional Director issued his order amending com- plaint. On or about November 12, 1969, the parties to the consolidated cases, including the General Counsel, entered into a stipulation, in which they requested the transfer of this proceeding to the Board. In the stipulation the parties in effect agreed that the formal papers filed in the complaint case and the record in the representation case constitute the entire record in this proceeding and further agreed that no oral testimony was either necessary or desired. They waived their right to a hearing before a Trial Examiner, the making of findings of fact and conclusions of law by a Trial Examiner, and the issuance of a Trial Examiner's Decision and Recom- mended Order. The Parties reserved the right to file briefs. The Board approved the stipulation and granted the request to transfer the case on November 28, 1969. Thereafter all parties filed 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. Decision and Direction The requests were denied by the Board on January 9, 1969 2 The Regional Director had previously dismissed the 8(a)(5) allegations of the charges and Local 50's appeal to the General Counsel was denied 186 NLRB No. 19 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has considered the entire record in this proceeding, including the briefs of the parties,3 and makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company maintains an office and place of business at 2290 Central Park Avenue in the city of Yonkers, New York, where it has at all times material been engaged in the operation of a restaurant. During the past year, the Company's gross revenue from its restaurant operations was in excess of $500,000 and during the same period it purchased, and had delivered, from points outside the State of New York food and beverages valued in excess of $50,000. Accordingly, we find, in agreement with the stipula- tion of the parties, that the Employer's operations affect commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED The parties agree, and we find , that Local 50, American Bakery and Confectionery Workers Union, AFL-CIO; Local 350, Bakery and Confectionery Workers Union, Bakery and Confectionery Union, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America ; and Local 1115, Restaurant, Dining Room and Luncheonette Employees Union, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES 1. Local 50 filed its petition in the representation case on September 17, 1968, seeking an election among the full-time and regular part-time employees at the Company's Yonkers restaurant. Local 350 was permitted to intervene on the basis of a contractual interest and Local 1115 on the basis of three authorization cards. As stated, the election was held on January 10, 1969, with Local 50 receiving 32 votes, Local 1115 receiving 20, and Local 350 receiving none. At all times material Local 1115 has represented certain of the Company's employees at its Coney Island restaurant and has had a bargaining agreement containing a union-security clause covering such employees. On October 24, 1968, Irwin Mandell, the Company's agent and supervisor, transferred Adolfo Nieves, John Cadges, and Carlos Rodiguez, from its 3 The Company, Local 350, and Local 1115 request oral argument Their request is hereby denied as the record in this proceeding, including Coney Island to its Yonkers restaurant, said transfers being temporary and for the purpose of assisting Local 1115 to obtain a showing of interest in order to intervene in the representation proceeding. Also on that date, Mandell urged and solicited employees prior to their transfer to the Yonkers restaurant to sign cards designating Local 1115 as their representa- tive for purposes of collective bargaining. Thereafter, on December 10, 1968, George Sayegh, the Compa- ny's agent and supervisor, promised the employees he would grant their requests for transfers from one location to another in order to induce them to assist or support Local 1115, but threatened not to grant such requests if the employees supported Local 50. About 10 days later, Sayegh further threatened the employ- ees with a plant shutdown if they supported Local 50, while at the same time encouraging the employees to vote for Local 1115 in the upcoming election. Then on January 3, 1969, at the Yonkers restaurant Sayegh promised the employees the Company would hire their friends and on January 6, 8, and 17 promised the employees managerial positions and salary increases, all such promises being made for the purpose of inducing the employees to assist and support Local 1115. Also on or about January 10, Sayegh designated an employee to act as an observer for Local 1115 at the representation election and, subsequently, on January 17 granted the Yonkers employees wage increases in order to induce them to assist or support Local 1115. By the foregoing acts of assistance and other conduct in support of Local 1115, the Company, we find, restrained and coerced employees in viola- tion of Section 8(a)(1) of the Act. We further find that by such conduct the Company also violated Section 8(a)(2) of the Act. 2. The General Counsel and Local 50 contend that the Company additionally violated Section 8(a)(2) and (1) by continuing to check off dues from December 1, 1968, to May 1969, allegedly on behalf of Local 350, when in November 1968 a majority of the employees had signed and Local 50 had submitted to the Company dues checkoff revocation forms effective as of the termination date of the contract. The Company points out that all checkoff receipts were placed in escrow during the disputed period, and argues (1) that there was, during that full period, a contract in effect, and (2) that in any event there was no violation because it continued the checkoff not to assist Local 350, which received none of the dues money, but rather to protect itself against any claims by Local 350. The contractual justification for the checkoff is at best confusing. The original contract between Local 350 and the Company ran from December 1964 to the briefs, adequately reflects the issues and the positions of the parties NATHAN'S FAMOUS OF YONKERS, INC. 133 December 1966. In April 1966, a modification was executed which carried a May 1969 expiration date, but in December 1966, on the termination date of the 1964 agreement, the Company and Local 350 execut- ed another complete contract which ran only to December 1, 1968. In the representation proceeding the Regional Director held that the December 1 date of the last negotiated agreement was the operative terminal or modification date for contract-bar purposes.4 The General Counsel and Local 50 now contend that that date is the relevant date for termination of the checkoff pursuant to the revoca- tions. We do not believe that the decision on the applicability of contract-bar principles is determina- tive of 8(a)(2) checkoff issues raised here.5 Here, although the contract between the Company and Local 350 was no bar to an election, it was, nonetheless, effective at least on its face until May 1969. Whether or not that contract would under Section 302 of the Act support the continuing checkoff of dues we do not decide, but we do find that it created a situation justifying the Company's concern that despite the contract-bar decision it might be liable to Local 350 for the checkoff until the contract's May 1969 expiration. Further, we believe the Company's good faith in this respect was demonstrated by the fact that no money was paid over to Local 350 pursuant to the disputed checkoff but rather that the checked-off sums were placed in escrow. In these circumstances where there was a reasonable basis for the Company's concern for checkoff liability and where the union received no financial benefit from the disputed checkoff, we cannot find that the checkoff from December 1968 to May 1969 was financial or other support for Local 350 in violation of Section 8(a)(2) and (1) of the Act .13 3. It is noted above that Sayegh threatened employees on December 10, 1968, that the Company would not grant transfer requests and on December 20 that it would close down if the employees supported Local 50. Previously-sometime in October-Jack Marks, a company agent and supervi- sor, interrogated employees concerning their signing cards revoking their payroll dues deductions on behalf of Local 350. Then on or about January 26, 1969, Sayegh ordered the transfers of Alfredo Kerca- do and Nancy Papalardo from the Company's Yonkers to its Times Square restaurant, a place of employment less desirable to them. Papalardo, unlike Kercado, failed to report for work at the Times Square restaurant. Thereafter, on January 30, Ike 4 As stated above, the Board denied review of that decision. 5 In effect the General Counsel and Local 50 are asking us to find that a decision that a contract is a bar is tantamount to finding the contract no longer exists at least insofar as being effective to support lawful checkoff under Sec. 302 of the Act, and further that , if the checkoff is unlawful under Sec. 302, it necessarily violates Sec. 8(a)(2). Our contract-bar rules do Brown, the Company's agent and supervisor, ordered Kercado to transfer from Times Square to the Coney Island restaurant, a place of employment less desira- ble to Kercado who in consequence refused to report to work and terminated his employment. The Compa- ny ordered the foregoing transfers because the affected employees had joined and assisted Local 50 and engaged in other protected concerted activity and because they had given testimony under the Act in the representation proceeding. The foregoing conduct, we find, clearly undermined employee support for Local 50 and interfered with, restrained, and coerced employees in their protected concerted activities in violation of Section 8(a)(1) of the Act. We find, also, that the transfers of Kercado and Papalardo and their termination of employment, which the parties stipu- lated to be constructive discharges by the Company, caused by their supporting Local 50 and testifying at a Board hearing, violated Section 8(a)(3) and (4) of the Act. IV. THE OBJECTIONS TO THE ELECTION As described above, an election was held on January 10, 1969, in which Local 50, the Petitioner, received 32 votes; Local 1115, an Intervenor, received 20 votes, and Local 350, the Incumbent, received no votes. Upon the losing parties' objections based on the Company's failure to provide the Excelsior list, the Regional Director set aside the election and directed that a second election be held. The Board, on Local 50's request for review, concluded that further consideration was necessary to determine "whether the Employer's failure to furnish Excelsior list constitutes-in all the circumstances of this particular case-a valid basis upon which to set aside the first election." We now conclude it does not. In administering our Excelsior list requirement, we have consistently been aware that a literal application of the rule may not be appropriate in all situations.? The essential purpose of that requirement is to help provide in Board elections an informed electorate on the theory that employees subject to the propaganda, information, and argument of all sides competing in the election will best be able to cast ballots truly reflecting their free choice and not a choice born in part of ignorance. Here, of course, no Excelsior list was supplied. Nonetheless, Local 50 won the election in the face of company threats to the employees that it would not grant transfer requests and would close down if they supported Local 50, in the face of illegal not, of course, determine whether or not a contract in fact exists and Sec. 302 did not create a new unfair labor practice under Sec. 8(a)(2). See Salant & Salant Inc., 88 NLRB 816. 6 See Morton Salt Company, 119 NLRB 1402. 7 See, for example, Program Aids Company, Inc., 163 NLRB 145. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company interrogation of employees concerning their reasons for revoking the Local 350 checkoff authori- zations, and in the face of the Company's pervasive illegal assistance and support of Local 1115. Conse- quently, in view of the Company's illegal activity clearly intended either directly or indirectly to achieve the defeat of Local 50, we find it impossible to conclude that there is any purpose to be served by the timely submission of an Excelsior list which would be furthered by setting this election aside because the Employer declined to furnish the list.8 Thus, we are convinced that in the circumstances here nothing would be achieved, other than some empty vindica- tion of our direction herein or of the "rights" of the Intervenors to the list, by setting aside the election because of the Company's refusal to produce the list. Certainly no substantial interest of the employees in asserting their free choice would be furthered by such a result. At most that result would do no more than permit the Company to benefit from its own past illegal actions intended to stave off Local 50 recogni- tion and provide it with another opportunity to defeat that Union. That, of course, was not one of the intended purposes of the Excelsior decision.9 In view of all the foregoing, we overrule the intervening Unions'-Local 350 and Local 1115-objections to the election held on January 10, 1969, and shall, therefore, certify Petitioner Local 50 as the bargaining representative of the employees in the appropriate unit. CONCLUSIONS OF LAW 1. Nathan's Famous of Yonkers, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 50, American Bakery and Confectionery Workers Union, AFL-CIO, and Local 1115 , Restau- rant, Dining Room and Luncheonette Employees Union, and Local 350, Bakery and Confectionery Workers Union, Bakery and Confectionery Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act. 3. By interrogating employees in October 1968, concerning their reasons for signing checkoff authori- zation revocations , by threatening employees with a plant shutdown to induce them to refrain from supporting Local 50 , and by threatening employees 8 There is no evidence that any union was prejudiced more than another by the withholding of the Excelsior list However, the situation suggests that the disfavored Local 50 was possibly more prejudiced than favored Intervenor Local 1115 or incumbent Local 350 which had with the Company a long-established bargaining relationship embracing union- security provisions. 9 In Hershey Chocolate Corporation, 121 NLRB 901, 905, with respect to with a denial of transfer requests if they supported Local 50, the Respondent Company has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By soliciting employees to sign cards on behalf of Local 1115, by temporarily transferring employees to its Yonkers establishment in order to aid that Union to obtain a showing of interest in the representation case, and by the other above-enumer- ated acts and conduct in support of Local 1115, the Respondent Company has engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 5. By transferring Alfredo Kercado and Nancy Papalardo to locations they considered less desirable and by constructively discharging them because said employees had joined and assisted Local 50 and because they had given testimony under the Act, the Respondent Company engaged in unfair labor prac- tices within the meaning of Section 8(a)(3), (4), and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Company set forth in section III, above, occurring in connection with the Respondent Company's operations described in section I, above, have a close, intimate, and substan- tial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent Company violated Section 8(a)(1), (2), (3), and (4) we shall order that it cease and desist therefrom and that it take certain affirmative action which will effectuate the policies of the Act. As we have found that the Respondent Company discriminated against Alfredo Kercado and Nancy Papalardo by transferring them to less desirable locations and by causing their constructive discharg- es, we shall order that the Respondent Company offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially its contract-bar rules, the Board stated that they "are compelled neither by the Act nor by judicial decision, but are rather discretionary rules which may be applied or waived as the facts in a given case may require in the interests of effectuating the policies of the Act" That comment is, in our opinion, equally applicable to the direction than an Excelsior list be supplied NATHAN'S FAMOUS OF YONKERS, INC. equivalent positions at its Yonkers establishment, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount he normally would have earned from the date of his discharge to the date of the offer of reinstatement, less his net earnings, to which shall be added interest at the rate of 6 percent per annum, in accord with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Finally, in view of the pervasive nature of the Respondent Company's unfair labor practices, we shall order that it cease and desist from in any other manner infringing upon employees' rights guaranteed by Section 7 of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders Nathan's Famous of Yonkers, Yonkers, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their rea- sons for signing checkoff authorization revocation cards. (b) Threatening employees that it will close down and that it will not grant their transfer requests to induce them to refrain from supporting Local 50 or any other union. (c) Encouraging membership in, or support for, Local 1115 or any other labor organization by encouraging employees to sign union authorization cards, by promising or granting benefits to encourage support for Local 1115 or any other labor organiza- tion, or in any other manner unlawfully encouraging employees to assist or support any labor organization. (d) Discouraging membership in and activities on behalf of Local 50 or any other labor organization by discriminatorily transferring and constructively dis- charging any employee because of membership in or support for Local 50 or any other labor organization. (e) Discriminatorily transferring, constructively discharging, or otherwise discriminating against any employee for giving testimony under the Act. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor 10 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" 135 organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Offer to Alfredo Kercado and Nancy Papalardo immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions at its Yonkers establishment as provided in that section of the Decision entitled "The Remedy." (b) Notify each employee entitled to reinstatement pursuant to the provisions of paragraph 2(a) above, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Make Alfredo Kercado and Nancy Papalardo whole for any loss of pay suffered by reason of the Respondent Company's discrimination against them in accordance with the provisions set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to authorized agents of the National Labor Relations Board, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in computing the amount of backpay herein provided. (e) Post at its places of business at Yonkers, New York, Times Square, New York City, New York, and Coney Island, New York, copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by an authorized representative, shall be posted by Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 2, in writing, within 10 days from the date of this Order, what steps the Respondent Company has taken to comply herewith. shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CERTIFICATION OF REPRESENTATIVE IT IS HEREBY CERTIFIED that Local 50, American Bakery and Confectionery Workers Union, AFL-CIO, has been designated and selected by a majority of the employees of the Employer Company in the unit found appropriate, as their representative for the purposes of collective bargaining, and that, pursuant to Section 9(a) of the Act, the said labor organization is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Chairman Miller, dissenting in part: The incumbent Union was , in my view, clearly entitled to an Excelsior list, unless we are to hold that incumbent unions are not so entitled or that a union which does not attract a substantial number of votes in an election has no standing to object to the election on Excelsior grounds. My colleagues would not carve out either exception to the Excelsior requirements, yet they find no reason here to sustain the objections. I must dissent from such a decision , which offers confusion instead of helpful guidance to those who look to our decisions for intelligible interpretations of the law. to induce them to assist that Union or in any other manner unlawfully assist or support that Union. WE WILL NOT transfer employees against their will and cause them to quit working for us because they have aided and supported Local 50 or any other union or because they have testified at a hearing held by the National Labor Relations Board. WE WILL offer to Alfredo Kercado and Nancy Papalardo, at our Yonkers, New York, restaurant, immediate and full reinstatement to their former jobs or, if thosejobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or other rights and privileges, and we will pay them for any loss of pay because of our discrimination against them. WE WILL notify the above employees if present- ly serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate our em- ployees concerning their reasons for revoking the checkoff authorizations. WE WILL NOT threaten our employees with a shutdown or refusal to grant transfer requests if they join or otherwise support Local 50, American Bakery and Confectionery Workers Union, AFL-CIO, or any other labor organization. WE WILL NOT encourage employees to sign authorization cards for Local 1115, Restaurant, Dining Room and Luncheonette Employees Un- ion, promise or grant employees benefits in order NATHAN'S FAMOUS OF YONKERS (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 36th Floor Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0300.