Denny's Restaurant, Inc.

48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Denny's Restaurant, Inc.' and Local Joint Executive Board of Culinary Workers and Bartenders, affiliat- ed with Hotel, Motel and Restaurant Employees and Bartenders International Union, AFL-CIO, Petitioner 2 Denny's Restaurant, Inc., Employer and Petitioner and Local Joint Executive Board of Culinary Workers and Bartenders, affiliated with Hotel, Motel, and Restaurant Employees and Bartenders Internation- al Union, AFL-CIO. Cases 20-RC-9140 and 20-RM-1217 October 21, 1970 DECISION AND DIRECTION OF ELEC- TIONS BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a consoli- dated hearing was held before Bernard T. Hopkins, Hearing Officer of the National Labor Relations Board. Following the hearing the parties filed briefs with the Regional Director and thereafter, pursuant to Section 102.67 of the Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, the case was transferred to the Board for decision. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. On the entire record in this case, including the briefs, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Joint Board is a labor organization within the meaning of Section 2(5) of the Act. 3. The Employer contends in its petition filed in Case 20-RM-1217 that the Joint Board claims to represent employees at three of its restaurants in Oakland and one in Hayward, California, referred to below. It asserts that these locations and its restaurant I The name of the Employer appears as amended at the hearing 2 The name of the Union appears as stipulated in Case 20-RC-9140 at the hearing 3 Union Exhs 1, 3, and 4 indicate that "Local Joint Executive Board of Culinary Workers and Bartenders" and "Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, of Alameda County," are used interchangebly 4 Culinary Workers Alliance Local 31, Cooks' Union Local 228, and Bartenders Union Local 52 5 Culinary Workers and Bartenders Local No 823. at Emeryville, California, for which the Joint Board filed a representation petition in Case 20-RC-9140, constitute the only appropriate unit. However, it is willing to have elections conducted at each location should the Board determine separate units are appropriate. The Joint Board contends, in its petition filed in Case 20-RC-9140, that a unit confined to employees at Emeryville is an appropriate unit and that a five- location unit is inappropriate. Moreover, it asserts that it disclaims any interest in representing employ- ees at locations other than Emeryville and thus the RM petition must be dismissed. The Joint Board, according to evidence in the record,3 comprises various constituent local unions in Alameda County, California, including three in Oakland4 and one in Hayward.5 Sometime prior to 1969, these locals were parties to a collective-bargain- ing agreement with the East Bay Restaurant Owners Association, of which Prings' Coffee Shop and Restaurant was a member. Following the Employer's purchase of Pring's assets with a view to operating its own restaurants at the former Prings' locations, the Hayward local, and the Joint Board on behalf of the Oakland locals, on January 29 and 31, 1969, notified the Employer of the respective bargaining agreements covering Prings' employees at Hayward and Oakland, and requested bargaining. Following the Employer's refusal on February 13 to recognize the Unions, the Hayward local and the Joint Board, by letters of February 20 and 21 containing identical language, advised the Employer: "we expect to have our representation rights with respect to these locations recognized." On April 28, the Hayward local made a further inquiry of the Employer as to when it intended to open new restaurants at the Prings' locations at Oakland and Hayward, referring to an unsuccessful 8(a)(5) charge filed by the Joint Board alleging that the Employer unlawfully refused to recognize the Oakland and Hayward locals. It appears that the Employer did not reply. Thereafter, immediately upon the Employer's opening of each of the four restaurants, later encompassed in Case 20-RM-1217, two of which at least are former Prings' restaurants, picketing commenced under the sanction of the Joint Board6 and continued without interruption to the time of the hearing herein.? The Joint Board filed its petition in Case 6 The dates of opening of the four locations and beginning of picketing are Hayward, June 10, 1969, East 18th Street, Oakland, June 16, and 595 and 601 Hegenburger Road, Oakland, November 13 The Emeryville location opened on July 15, 1969, but threatened picketing there never materialized 7 The picket signs at the Oakland locations of the Employer read "Unfair, this restaurant does not employ Union members from Cooks' 228, Bartenders' 52, Culinary Workers' 31 Do not patronize this nonunion restaurant " The sign at the Hayward location of the Employer is the same except that the named union is Local 823 At the bottom of each sign in 186 NLRB No. 21 DENNY'S RESTAURANT, INC. 20-RC-9140 on January 9, 1970. The following day, Calvarese, president of a Richmond, California, Culinary Workers local which had lost an election at a restaurant of the Employer at Pleasant Hill, Califor- nia, which is outside Alameda County, appeared at the Employer's Emeryville, Alameda County, restau- rant encompassed in Case 20-RC-9140. Calvarese is also the secretary-treasurer of the East Bay Coordi- nating Committee, which includes the locals involved in the picketing herein. (We observe that a copy of a letter of August 25, 1969, from the attorney for the Joint Board to the Company's attorney (Union Exh. 9) is marked for "Calvarese, Joint Board.") Calvarese demanded of Fry, the Employer's area manager, that the Employer sign a contract for each of the four picketed locations, and referred to a future meeting with the International Union at Las Vegas, Nevada, at Which the picketing locals intended to obtain recognition from the Employer.8 Fry refused to sign a contract or recognize any union. On January 23, 1970, the Employer filed the petition in Case 20-RM-1217. On February 18 Calvarese arranged a meeting between union and employer representatives, including the president of one of the Oakland picketing locals (Faber) and the president of the Company (Butler). At the meeting held that day Calvarese represented himself as the chairman of an effort to organize the Employer and to obtain a "top down" contract.9 Calvarese also tendered to Butler a proposed contract.10 Butler refused to sign. Thereaft- er, Calvarese arranged another meeting between Butler and the International Union's president (Miller), which was held on February 22, 1970, in Las Vegas, Nevada. At this meeting Miller demanded of Butler that the Employer sign a national contract with the Union. ii Butler again refused to sign. With respect to what happened at the meetings of January 10 and February 18 and 22, 1970, we rely on the testimony set forth above rather than Calvarese's denials. The denials seem inconsistent with other facts of record. Calvarese's denials of his attempt to secure recognition are inconsistent with his other conduct, such as arranging the Las Vegas meeting at which recognition was requested by the International. It seems apparent from the record that Calvarese's interest in seeing the Joint Board and its constituent locals obtain recognition at the picketed locations and win the election at Emeryville arose not only from his position as Joint Board representative, but also from fine print is the legend "This is an advertising picket line and is not meant to stop deliveries or to organize employees " 8 This is Fry's testimony 9 This is testimony by Director of Personnel Kostlan , who was also present at the meeting as a representative of the Employer. 10 This is the testimony of both Kostlan and Calvarese ii This is the testimony of Vice President for Finance Withers who was also present at the meeting as an employer representative 49 that of secretary-treasurer of the East Bay Coordinat- ing Committee, which was partially financed by the picketing unions and was engaged in organizing activities which included the Employer. The record also shows that a representative of the East Bay Coordinating Committee appeared at the picket line at Hayward, and that the East Bay Labor Journal, published by the Alameda County Labor Council, of which the four picketing locals are members, referring to the inception of the picketing, quoted the Joint Board as saying that picketing would begin or was ensuing at Emeryville, at Hayward, and at two of the three Oakland locations, in which it later came to pass, and that Faber, who was not only president of one of the picketing Oakland locals but was also president of the East Bay Coordinating Committee, urged support of the picketing. We therefore find that the initial demands by the Joint Board or its constituent locals were for recogni- tion at two of the four locations involved in the subsequent picketing. We also find that the picketing at all locations, in the absence of any evidence to the contrary, and in the light of the reference to Emeryville where the Joint Board seeks recognition, to be for the same object of initial immediate recognition. At no time did the Joint Board change the character of such recognitional picketing, not- withstanding the wording on the signs and the Union's advice to other unions not to honor the picket lines. Despite the asserted disclaimer by the Joint Board at the hearing in Case 20-RM-1217, the same picketing continued thereafter. Moreover, the testi- mony of Fry, Kostlan, and Withers and the filing of the petition at Emeryville further demonstrate that the Union's object was and is to obtain a contract from the Employer, including the four picketed locations. Accordingly, in the light of the above union conduct, which is inconsistent with the Joint Board's asserted disclaimer,12 we find that the Joint Board never abandoned its original purpose in its picketing through its constituent locals to obtain immediate recognition from the Employer, and that the contin- ued picketing and other conduct reveal the existence of a question affecting commerce 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.13 4. The Employer contends that the appropriate 12 See Alen & O'Hara Investments, Inc d/b/a Holiday Inn of Providence- Downtown, 179 NLRB No. 58 We find no ment in the Joint Board's further contention that the withdrawal or dismissal by the General Counsel of charges filed by the Employer alleging violations of Section 8(b)(7)(C), based on the picketing herein, precludes a finding of conduct inconsistent with the Union's asserted disclaimer 13 Kenneth Wong, et a!, d/b/a Capitol Market No 1, 145 NLRB 1430, 1431-32 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit is one involving all five locations. However, it is willing to have elections conducted in any one or all of these locations. The Union contends that only single- restaurant units are appropriate. The restaurants involved herein are operated directly or indirectly by the Employer from its La Mirada, California, head- quarters through intermediate steps of supervision. Separate area supervisors for Denny's Restaurants, Sandy's Restaurants, and Sams Hofbrau, the restau- rants involved at the five locations, are ultimately responsible to the general manager for the coffee-shop division, who has direct operational responsibility for all the restaurants under his jurisdiction throughout the United States. There is a separate manager for each restaurant who reports directly to the appropri- ate area supervisor. Each manager implements a labor relations policy established on a companywide basis at the La Mirada headquarters and, subject to such overall policy, makes his own labor relations deci- sions, in coordination with those of other managers. Each manager recruits and hires employees, recom- mends discharges, and grants time off. Each is also engaged in local purchasing and inventory of opera- tional items . There have been no transfers or interchange of employees from one restaurant to another. In view of the autonomy each local manager exercises over each restaurant and his discretion to implement corporatewide labor relations policies as he sees fit, his control over hiring, his authority to recommend that employees be discharged, his author- ity to grant time off for personal reasons, his responsibility for the day-to-day operations of the restaurant, the lack of any interchange of employees between the restaurants, and their geographical separation, we find that a single unit of all five restaurants is not appropriate, and that each of the five locations herein is an appropriate unit for the 14 Frisch's Big Boy Ili-Mar, Inc, 147 NLRB 551 15 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the elections should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear The, 156 NLRB 1236, N L.R B v Wyman-Gordon Co, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed purposes of collective bargaining within the meaning of the Section 9(b) of the Act.14 The parties have not disputed the composition of the units as described in the petitions filed. Accord- ingly, we find that the following employees constitute separate units appropriate for collective bargaining within the meaning of Section 9(b) of the Act: Unit I: All cooks, waitresses, dishwashers, cashiers, busboys, cook trainees, bartenders, chefs, carvers, and food handlers employed at Sandy's Restaurant, 278 East 18th Street, Oakland, Cali- fornia, excluding clerical employees, guards, and supervisors as defined in the Act. Unit II: All cooks, waitresses, dishwashers, cashiers, busboys, cook trainees, bartenders, chefs, carvers, and food handlers employed at Sandy's Restaurant, 24895 Mission Boulevard, Hayward, California, excluding clerical employees, guards, and supervisors as defined in the Act. Unit III- All cooks, waitresses, dishwashers, cashiers, busboys, cook trainees, bartenders, chefs, carvers, and food handlers employed at Denny's Restaurant, 601 Hegenburger Road, Oakland, California, excluding clerical employees, guards, and supervisors as defined in the Act. Unit IV: All cooks, waitresses, dishwashers, cashiers, busboys, cook trainees, bartenders, chefs, carvers, and food handlers employed at Sam's Hofbrau, 595 Hegenburger Road, Oakland, Cali- fornia, excluding clerical employees, guards, and supervisors, as defined in the Act. Unit V.• All cooks, waitresses, dishwashers, cashiers and miscellaneous helpers employed at Denny's Restaurant, East Shaw Boulevard and Powell Streets, Emeryville, California, excluding clerical employees, guards, and supervisors as defined in the Act. [Direction of elections 15 omitted from publication.] by the Employer with the Regional Director for Region 20 within 7 days of 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