ABC Food Service, Inc.

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ABC Food Service, Inc. and Industrial, Technical and Professional Employees Division of National Maritime Union of America, AFL-CIO. Case 20-CA-5083 June 6, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On March 26, 1969, Trial Examiner James R. Hemingway issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Charging Party filed a brief in answer to the Respondent's exceptions. 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. Respondent's answer was filed on September 23, 1968. Pursuant to notice, a hearing was held in San Francisco, California, before me on December 12 and 13, 1968. Following the close of the hearing, each of the parties filed a brief with me. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Texas corporation, with its principal office and place of business located at El Paso, Texas. At all times material hereto, it has been engaged in the business as a food service contractor to the United States Navy. During the year prior to the issuance of the complaint, the Respondent, in the course and conduct of its business operations, received revenue in excess of $100,000 for services performed for the United States Navy at San Diego, California, and during the period from July 1, 1968, until the time of the hearing, the Respondent received "in excess of $27,000 per month" ($28,000) for services performed for the United States Navy at Alameda Naval Air Station, Oakland, California, under a contract calling for $336,000 per year. The Respondent admits that its activities have a substantial impact on the national defense and that it is engaged in commerce within the meaning of the Act. I so find. II. THE UNION The complaint alleges and the answer admits that the Union is a labor organization within the meaning of the Act, and I so find. 111. THE UNFAIR LABOR PRACTICES A. Background ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, ABC Food Service, Inc., El Paso, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. HEMINGWAY , Trial Examiner : Industrial, Technical and Professional Employees Division of National Maritime Union of America, AFL-CIO, herein called the Union, filed a charge on July 3, 1968, against ABC Food Service, Inc., herein called Respondent, alleging violations of Section 8(a)(l) and (5) of the National Labor Relations Act, as amended , 29 U.S.C., Sec. 151, et. seq., herein called the Act. Upon this charge, a complaint issued on September 13, 1968, alleging violations of the aforesaid sections of the Act. U. S. Eagle, Inc., herein called Eagle, a Washington corporation, engaged in the business of food service (later herein described) under contract to the United States Navy, had a contract to perform food services for the Navy at the Alameda Naval Air Station from July 1, 1967, to June 30, 1968, at a contract rate of $24,000 per month, with an option of renewal extended to the Navy. On August 31, 1967, the Union filed a petition for certification and thereafter, in early October 1967, entered into a stipulation for certification upon consent election with Eagle. The stipulation stated that "the following employees of the employer at the General Mess, Alameda Naval Air Station: All full-time mess attendant service workers and regular part-time mess attendant service workers, and all casual mess attendant service workers who work an average of 15 hours per week or more for nine consecutive weeks, excluding office clerical employees, guards and supervisors as defined in the Act" constituted an appropriate bargaining unit. There were about 44 eligible voters. Following an election by secret ballot, which the Union won by a 37 to 1 vote, the Regional Director, for and on behalf of the Board, on November 2, 1967, certified the Union as the exclusive representative of all employees in the appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions 176 NLRB No. 55 ABC FOOD SERVICE of employment. Under date of January 20, 1968, the Union entered into a collective-bargaining agreement with Eagle , having a 3-year term and containing a union-shop clause, among other provisions. B. Successorship Issue In April 1968, Lieutenant Jimmy Yoshida, the food service officer in charge of the enlisted men's mess, being dissatisfied with Eagle 's supervision, chose not to exercise the option to renew Eagle 's contract and began to take bids for a new contract to commence on July 1, 1968. Previously the contract had gone to the lowest bidder, but Yoshida employed a procedure known as requests for proposals which called not merely for a price for described work but for information on the abilities of the bidders, methods of operation expected to be used, names and background of supervisory personnel , etc. Under this procedure, the Navy was able to select the contractor not merely on the price bid but on an overall evaluation of the contractor 's qualifications and plan of operations. During April and May 1968, Yoshida met with representatives of various expectant bidders . Respondent sent, as its representative, Verl Schoenfeldt, assistant to the president of the company , who was in charge of its West Coast operations . Schoenfeldt spent several days at the base, watching operations and conferring with Yoshida. According to Yoshida , whom I credit, he notified Schoenfeldt before bids were submitted that the employees had voted for the Union to represent them and that they were members of the Union. Schoenfeldt conceded that, when he was making his survey in May 1968, he knew that Eagle had a contract with the Union. Furthermore, the Union , which was aware that Eagle's service contract was to expire on June 30, 1968, by telegrams sent on May 20, 1968, to a number of the bidders, including Respondent, notified them of its contract and requested them to consider the terms of that contract in submitting their bids.' Respondent's proposal was accepted by the Navy, and the Respondent was given a 1-year contract , which was basically the same as Eagle's with the exception of the amount of the contract payment previously mentioned. Respondent took over management immediately upon termination of Eagle's contract . At the end, Eagle had 84 employees . Respondent took application for employment from those who wished to apply . Of Eagle's 84 employees, Respondent took application from and hired 64 . Only four more employees not previously employed by Eagle, were hired as part of Respondent's initial staff. However, Respondent did not hire any of Eagle's supervisors or management personnel. According to Yoshida, the work performed by Eagle and by Respondent was the same, neither more nor less. They performed janitorial work in the dining area , part of the passageways, the back dock area and the loading dock ; they served food to enlisted men; and they operated the sculleries (dishwashing ) and did cleanup work in the areas related to food service . Neither Eagle nor ABC was involved in the cooking or other preparation of food. Both Eagle and Respondent used cleaning equipment belonging to the Navy, the only variation being that Eagle had owned two buffers larger than those that belonged to the 'The Union actually stated terms of its best contracts rather than the particular one here involved . However, the important fact is notice of its interest rather than the terms of the contract. 427 Navy and were permitted to use them on the job. These were removed by Eagle at the termination of its contract. The Respondent contends that, in resolving the issue of successorship, the Board must take into account the lack of relationship between Eagle and Respondent and the differences in management , in the duties of supervisors, in the methods used to accomplish the work to be performed, and in the uniforms supplied certain employees and the method of supplying them. Regarding management, Respondent points to the fact that it is a large company having many bases of operation . Schoenfeldt, who is responsible for all West Coast Naval Bases contracted to Respondent , is directly under the president of Respondent . Schoenfeldt brought in a project manager for the Alameda base , but Respondent points to the fact that that manager was subject to policies formulated by the president, vice president, secretary-treasurer, and assistant to the president. Thus, Respondent argues, the Alameda operation is not just a local operation but is an integrated part of a larger enterprise.' Regarding its supervisory staff at the Alameda base, Respondent points to the fact that its supervisors spend 80 per cent of their time in supervising and 20 per cent in working, whereas, under Eagle, the supervisors had spent about 80 per cent of their time working and 20 percent of their time supervising . To show the changes effected in methods of operating, Respondent adduced evidence that, whereas Eagle had washed all the windows in the mess area on weekends with a field-day crew (crew brought in for that specific job), the Respondent washed one fifth of the windows each day by working this job into the schedule of individual employees; that whereas all Eagle employees were clocked out at 7 p.m., under the Respondent, the afternoon supervisor was required to stay on and finish up whatever had to be accomplished and that no one left until the job was completed; that Respondent made better scheduling of time and use of labor; that although there were "general provisions which would be compatible to either operation " there were differences in the manner in which the employees were used ; that, under Respondent, a separate identifiable job sequence was provided for each individual employee; and that Respondent, in its proposal, agreed to supply laundered uniforms (which it procured from a Los Angeles company which supplied uniforms for Respondent's other operations) and it negotiated a contract for the provisioning of "whites" locally. No substantial evidence was introduced of what Eagle had done about white uniforms for its employees. Respondent, in its brief to the Trial Examiner , has cited a number of cases which, it argues , support its contention that it is not a successor to Eagle , while the General Counsel and the Union , in their respective briefs, have cited numerous cases to support the contention that Respondent is a successor to Eagle . It is now well settled that a certification by the board of a union must be honored for a reasonable period of time , normally one year, in the absence of unusual circumstances, and a mere change in ownership in an "employing industry" is not such an unusual circumstance as to affect the force of the certification.' 'There was little or no evidence of Eagle's top management or of its contracts at other places. 'Brooks v. N.L.R.B.. 348 U.S 96; Johnson Ready Mix Co. 142 NLRB 437; Skaggs Drug Centers. Inc.. d/b/a Payless Drug Stores, 150 NLRB 518; Valleydale Packers, Inc. of Bristol, 162 NLRB 1486 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent argues , however, that in this case the employing industry was not the same. I have considered all of the differences which the Respondent has enumerated in its brief, and I find that they are not of a sufficiently substantial character to alter the nature of the successor business.' The employing industry's purpose remains the same . The end result desired remains the same. The cases cited by the Respondent to support its contention that it is not a successor are all distinguishable. In most of them, the facts disclose that, not only was the business in fact altered in character, but also and more important, that, with no proof of any unfair labor practice, the successor had employed less than one-half of his total work force from among the predecessor's employees.' The Respondent quotes from the court's language in Tri State Maintenance Corp. v. N.L.R.B., 407 F.2d 171 (C.A.D.C.), where the court said, "Here, Tri State had no privity of contract with Frugal or Frugal's employees and it was not a `successor employer' that bought out the business of another ." That statement of the Court was made in rejecting an assumption by the Board that the successor was obligated to take over the predecessor's staff. It was not made with reference to the duty to bargain. It may be pointed out that the only question before the court in that case was whether or not the successor had refused to employ the employees of the predecessor because of their union membership. The question of whether or not the successor was bound by the certification of the Union at a time when the employees were employed by the predecessor was not before the court.' In cases involving the duty of a succeeding employer to recognize and bargain with a previously certified union, the word "successor" is not used in any sense as connoting that the predecessor and successor necessarily have any kind of privity of contract or title .' As the Board stated in Maintenance , Incorporated, 148 NLRB 1299: The duty of an employer who has taken over an "employing industry" to honor the employees' choice of a bargaining agent is not one that derives from a private contract, nor is it one that necessarily turns upon the acquisition of assets or assumption of other obligations usually incident to a sale, lease, or other arrangement between employers. It is a public obligation arising by operation of the Act. The critical question is not whether Respondent succeeded to White Castle's corporate identity or physical assets, but whether Respondent continued essentially the same operation, with substantially the same employee unit, whose duly certified bargaining representative was entitled to statutory recognition at the time Respondent took over. 'Maintenance . Inc., 148 NLRB 1299; Consolidated American Services, Inc.. 148 NLRB 1521. 'Ex. gr.. N.L.R.B. v. 338 F.2d 883 (C.A. 9); N. L.R.B. v . The Alamo White Truck Service. 273 F.2d 238 (C.A. 5). Thomas Cadillac. Inc.. 170 NLRB No. 92; Pargament Fidler, Inc.. 173 NLRB No. 102; Federal Electric Corp.. 167 NLRB No. 63. 'The Trial Examiner had passed on an issue of a refusal to bargain, but the Board had found that the issue of refusal to bargain was moot and so it did not pass upon it, and the issue of refusal to bargain was not raised before the court. 'Ramada Inns. 171 NLRB No. 115; S. S. Kresge Co., 169 NLRB No. 61; Maintenance. Incorporated. 148 NLRB 1299; Glenn Goulding d/b/a Fed Mart. 165 NLRB No. 22; Consolidated American Services , Inc., 148 NLRB 1521. In the absence of any change in the location and character of the appropriate unit, or material change in the employing industry, I do not consider it important that the Respondent did not retain any of Eagle's supervisors, that it substituted its own supervisory force, and that the local manager was subject to control by Respondent's higher management who were located elsewhere.' Furthermore, so long as the unit remains substantially the same and the business enterprise at the Alameda Base remains substantially the same, it is likewise of no major importance that the Respondent operates similar enterprises at other locations.' The Respondent argues that the difference in bidding procedures used here - the difference between low bid procedure and request for proposals - was a factor which should be considered in determining whether or not Respondent was a successor to Eagle . It even asserts that this difference was of controlling significance in Federal Electric Corporation, 167 NLRB No. 63. I find no essential difference so far as the problem presented in this case is concerned. Actually, the matter of controlling significance in Federal Electric was the fact that the portion (11 of 28 employees) of the predecessor's staff - the staff that made up the original collective-bargaining unit - which was retained by the successor was transferred by the latter to a department of its own operations and became merged into a previously certified departmental unit which was represented by a different union. So not only was less than half the original unit staff taken over but those that were taken over were commingled with another, existing, unit. Respondent argues that the Board should take into account the effect that all the changes made by Respondent would have upon the employees' attitude toward the new employer as opposed to the old employer. To quote from Respondent's brief: The bargaining relationship presupposes that a group of employees, because of a desire to be represented in their dealings with a given employer , have chosen a union as their representative to act on their behalf. Presumably, certain problems with the employer or desire to gain certain concessions or benefits from the employer have brought about this relationship . . . . If the employees of U. S. Eagle were dissatisfied and wished the protection of a union with respect to the U. S. Eagle management, they did so because of factors relevant only to U. S. Eagle, that is, the attitude of U. S. Eagle toward its employees . . . . However, ... the facts here . . . would argue in favor of giving the employees an opportunity at this time to determine whether they wish now to be represented by the same union in their dealings with ABC or not represented at all. The foregoing argument is, of course, based on assumptions which may or may not be true . It assumes that employees choose a union to represent them because they feel that their employer is something of a villain and it proposes that because the employees might not feel that the successor is also a villain , they should do without union representation until such time as they are satisfied that the successor is a villain. The assumption drawn by the Respondent is only one of many reasons why employees might have selected a union to represent them 'Maintenance, Incorporated, 148 NLRB 1299, Hackney Iron A Steel Co., 167 NLRB No. 84; Valleydale Packers, Inc.. 162 NLRB 1486; Randolph Rubber Company, Inc., 152 NLRB 496. 'See Home Furniture Co., Inc., 174 NLRB No. 113; Hackney Iron & Steel Co. 167 NLRB No. 84; Valleydale Packers. Inc.. 162 NLRB 1486. ABC FOOD SERVICE 429 in collective bargaining . The Board is not required to ascertain subjective reasons for the selection. It is sufficient that the employees have made their selection. As stated by the Supreme Court in Ray Brooks v. N.L.R.B., 348 U.S. 96: Although the Board may, if the facts warrant, revoke a certification or agree not to pursue a charge of an unfair labor practice, these are matters for the Board; they do not justify employer self-help or judicial intervention. In giving the certification at least a full year before permitting the reopening of the question of representation, the Board has been influenced by practical considerations. "It would be virtually impossible for employees to achieve collective- bargaining rights in an employing industry which is periodically subject to a possible change of employers if with every change the employees must again resort to the Board's processes in order to demonstrate anew their desire to be represented by their formerly certified bargaining representative."" Accordingly, I find that Respondent here is a successor employer who is bound by a prior certification in the absence of any unusual circumstances. C. Refusal To Bargain 1. The appropriate unit employed as of September 29, 1967; the other consisting of full-time and regular part-time mess attendant service workers and casual mess attendant service workers who worked 135 hours or more during the period of July 15, 1967, through September 15, 1967. This was a broad enough description to cover employees not on the current payroll who could be considered fairly regular part-time workers as well as current employees. It would appear that the Respondent's objection is not so much one of the propriety of the unit as it is of the eligibility of certain employees to vote in the election. Since the Regional Director, on behalf of the Board, approved the unit, the unit is presumptively valid. Under Section 102.63 of the Board's Rules and Regulations, it is the duty of the Regional Director to decide that there is reasonable cause to believe that a question of representation affecting commerce exists, that the policies of the Act will be effectuated, and that the election will reflect the free choice of employees in the appropriate unit. There being no evidence to the contrary, I must assume that the Regional Director performed his duty in this respect and that he did not vary from the policies of the Act. On the evidence presented, the eligibility of specific voters cannot be attacked." It must, therefore, be presumed that the Regional Director properly determined the eligibility of voters. Accordingly, I find that the unit heretofore described is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The unit for which the Union was the certified collective bargaining representative is described in the complaint as full-time and regular part-time mess attendant service workers, and all casual mess attendant service workers who worked an average of 15 hours or more per week for 9 consecutive weeks, excluding office clerical employees, guards, and supervisors as defined in the Act. In its answer, the Respondent denies that this unit is appropriate. However, neither in its answer nor in its brief did the Respondent offer a more appropriate unit, except insofar as it criticized the alleged appropriate unit in its brief for including only "casual mess attendant service workers who work an average of 15 hours a week or more for 9 consecutive weeks." The Respondent contends that this is a departure from the Board's customary practice of including all regular part-time employees. It argues further that the Board would never have found such a unit appropriate except for the fact that this was a stipulated unit. An exhibit in evidence lists the names of employees on the payroll of the Respondent for the payroll period from August 19, 1967, to September 1, 1967, and, by comparing the records of employees with the names of employees on the eligibility list, which was introduced in evidence, the Respondent points to the fact that there were some who were excluded from eligibility who had worked just as much time as those who were included. However, the number of hours that an employee worked during a given period does not determine whether or not such employee was a regular part-time employee or merely a temporary employee, and the Board customarily excludes temporary or casual employees. Furthermore, the eligibility list prepared by the Regional Office shows that two groups of employees were eligible - one being persons employed on September 15, 1967, and still "Maintenance, Incorporated, 148 NLRB 1299 at 1302. Another instance of deferring new elections for practical reasons is found in the contract-bar rule. See General Cable Corporation, 139 NLRB 1123. 2. The Union's majority The Respondent contends that it did not know of the Union's certification because the Union never informed it thereof. A good-faith doubt of majority must, however, be based on something more substantial than the medium of communication of the facts. The Respondent had been informed by Lt. Yoshida in May 1968, that the employees had "voted the Union in" and that they were members of the Union. What conclusion the Respondent might, subjectively, have drawn from this information is unimportant. Yoshida's information to the Respondent put the latter upon notice of the fact that the Union had been chosen by the employees in an election and that, if it had been a Board-conducted election, it would have been followed by certification. But even if the election had not been conducted by the Board, the information about the result of the election put the Respondent on notice that the Union had established its majority, and this, alone, would have put the Respondent to proof of a good-faith doubt of that majority.'r I find no showing by the Respondent which could furnish a reasonable basis for doubt of majority. In its brief, the Respondent does not advance any plausible reason for doubt of the Union's majority other than the failure of the Union to mention its certification. If, however, Respondent had knowledge of the Union's once established majority, it would be immaterial that it had received such knowledge from a source other than the Union. From such evidence as appears, it is inferable that the Respondent, at some time unfixed, learned of the union-shop clause in the Union's contract and chose to believe that those employees who were employed after the date of the contract were unwilling members, who, if they should be given a chance to vote, would vote against the "General Tube Co. 141 NLRB 44. "Universal Gear Service Corporation , 157 NLRB 1169, enfd 394 F.2d 396 (C.A 6); Valleydale Packers. Inc, 162 NLRB 1486. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union . Even if the Respondent had, on the date of the alleged request and refusal to bargain, known of the union-shop clause in the Union 's contract - which Respondent portrays as unlikely by emphasizing the evidence that the Union had refused to show Respondent its contract. Such evidence, however, hardly proves a good-faith doubt of the Union's majority. Even if the Respondent had known of the union -shop contract, its argument that a majority of Eagle's former employees whom Respondent had hired had not had an opportunity to vote on the question of representation, would be untenable, for this furnishes no basis for a reasonable doubt as to the Union's majority . It would tend to prove only that the Respondent was unwilling to recognize the Union and was resorting to wishful thinking to avoid recognition." Since a year from the date of certification had not elapsed at the time of the alleged refusal to bargain, the certification of the Union by the Regional Director for Region 20 of the National Labor Relations Board conclusively determines the Union's majority in the appropriate unit." Accordingly, I find that at all times material hereto the Union has been and is the exclusive representative of all employees in the aforesaid bargaining unit within the meaning of Section 9(a) of the Act. 3. The request and refusal to bargain In the latter part of June, 1968, the Union made a telephone call to the local manager of the Respondent and told him that the Union considered itself to be the representative of the employees and that they would like a meeting to disucss the contract with representatives of the Respondent. The local manager relayed this information to Schoenfeldt who, in turn, notified Joshua Kahn, secretary-treasurer of the Respondent who is in charge of labor relations. As a result, a meeting was set up for July 2, 1968, at 10 a.m. At the appointed time, at Sambo's Restaurant in Oakland, California, Schoenfeldt and Kahn, for the Respondent , met with Roy Wilson, the Union's Regional Director, and Herbert Herrmann, as representatives of the Union . The meeting lasted for only five or ten minutes but there is quite a variance in the testimony by each side of what was said during the meeting. Wilson did the speaking for the Union and Kahn spoke for the Respondent. Wilson testified that he told Kahn, "You are aware we represent the employees of the Alameda Naval Air Station?" Wilson quoted Kahn as replying, " I am aware that you did represent the employees at U.S. Eagle, a previous employer at the air station ." Wilson then went on to testify that he told Kahn that the Union was certified by the Board as the representative of the employees and that it was the Union 's position that it still represented the employees at the Alameda Naval Air Station. Wilson testified that Kahn replied that there was some question as to whether the Union represented a majority of the employees working for the Respondent. Wilson testified that he told Kahn that unless they had changed the employees, had dismissed them and hired all new employees, that the Union represented the employees of the Respondent. Wilson quoted Kahn as saying, "Well, we have made some changes . . . . We have changed out management from top to bottom . . . . We have changed our managers and our supervisors." Wilson testified that "See Monarch Hardware & Mfg. Company, 145 NLRB 775, 779. "Ray Brooks v. N.L.R. B.. 348 U.S. 96. he asked Kahn whether or not the Respondent had changed all the nonsupervisory employees and that Kahn had replied that all of the employees had been dismissed and that "a number of them were rehired by ABC." Wilson asked Kahn if there were any previous employees whom the Respondent had not rehired and, according to Wilson, Kahn replied, "Yes, a number of employees were not rehired at the request of the Navy because they were undesirable." It will be noted that Kahn did not reveal that a majority of the Eagle employees had been hired by Respondent. Wilson testified that Kahn then told him that the Respondent's attorney had advised him that the Union did not represent the employees , to which Wilson replied, "But we have a contract," and that Kahn had replied, "That's a contract with U.S. Eagle, that is not a contract with these employees." Wilson testified that he told Kahn that, as a successor employer , the Respondent should be bound by the contract and that Kahn had replied that his attorney had advised him otherwise. Wilson then continued his testimony by saying that he had told Kahn he was not happy with the existing contract and would prefer to negotiate a different contract with the Company and that Kahn had asked Wilson if he had a copy of the contract. Wilson testified that he then turned to Herrmann and asked if he had a copy of the contract, and that Herrmann had taken a copy from his pocket and that he, Wilson, had handed this to Kahn, who had looked at it briefly before Wilson had said, "wait a minute, this is an original contract, this is not a copy . I'm going to have to take this one back ... I'll make you some copies of it and I'll send you one." Wilson quoted Kahn as asking why they could not make some copies right now - that they could get a copy machine and make some locally. Wilson testified that he had suggested that they let their counsel contact each other for further steps to be taken because the Respondent apparently was unwilling to recognize the Union in any event. At some point in the conversation , according to Wilson, he asked Kahn if it was his position that the Union did not represent the employees and that Kahn had replied "No, not unless you can show us that you represent a majority of our employees," and that Wilson had asked, "How should we do this? Should we go by card check or an election or how do you propose we do it?" Wilson testified that Kahn had replied : "It doesn't matter to us. We just want to do it the legal way." According to Kahn, Wilson had opened the discussion by saying that the reason they were there was because "You know we have a contract with U.S. Eagle and we regard you as a successor to this contract." Kahn testified that he disputed this and that Wilson had said that in such case they would probably have to litigate the point, whereupon Kahn said , "Fine" and gave Wilson the name and address of the Respondent's attorney, and that Wilson had given him the name of the Union's attorney. Kahn continued his testimony by saying, "And then in the course, while we were sitting there finishing the coffee, I mentioned that it might be helpful to us if we had a copy of the contract that he alleged to exist if we were going to be discussing a contract ." After testifying to a discussion of the production of a copy, according to Kahn, Wilson had said that he would not be willing to produce the copy if the Respondent was not going to accept the position that the Respondent was a successor, that then the Union would not be willing to stay with the original contract and would be thinking in terms of negotiating a different contract. According to Kahn, that was about all the ABC FOOD SERVICE discussion there was. He denied that there had been any statement regarding whether or not the Union represented a majority of the employees or any of the other matters to which Wilson testified . Schoenfeldt's testimony was substantially the same as that of Kahn. The testimony of Kahn and Schoenfeldt appeared to me to be guarded as a result of prior coaching as to the meaning of certain expressions . On the other hand, the testimony of Wilson indicated to me that he had not been cautioned against making certain statements. I noticed that counsel for Respondent seized upon Wilson's testimony that he had asked Kahn how Kahn proposed that the majority of the Union should be proved as though it were an admission against interest by asking Wilson if he was indicating that he was willing to prove the Union's majority in one of those ways . Wilson's answer to this question was that he was merely trying to find out what Kahn's position was.16 Although Wilson may not have remembered Kahn 's side of the conversation literally, I find that his testimony, as related, is substantially accurate. On the same day as the foregoing meeting , Kahn got in touch with the Respondent's attorney, and the latter immediately prepared an RM petition for an election. In this petition , there is a blank for the date of request for recognition as bargaining representative , and this blank was filled in by Respondent 's attorney as July 2, 1968, and a blank was also filled in with the same date as the date it declined recognition . The covering letter of the same date also refers to a demand for recognition by the Union . The petition was filed on July 5 , 1968. Meanwhile, on July 3, 1968, the Union had filed its charge in this case. Presumably, the Regional Office sent the Respondent's attorney notice of the filing of the charge and requested a statement of the Respondent 's position, because on July 17, 1968, the Respondent's attorney wrote that his letter was in reply to a letter from the Regional Office respecting the position of his client . In this letter, the Respondent's attorney states : "Likewise, we feel we are not bound by any prior certification of the National Maritime Union regarding U.S. Eagle for the same reasons." By the same reasons he was referring to the position taken by the Respondent that it was not a successor . There is no explanation of why he referred to a prior certification or of how he might have received information that there had been a certification of the Union . But it is apparent from this letter that Respondent would not have extended recognition even if Respondent had been informed of the Union's certification. Despite this evidence , the Respondent, in its answer and in its brief, took the position that the Union had made no request to bargain but had sought only to enforce its contract. In addition to the RM petition and the covering letter, there is other evidence that Respondent was aware of the fact that the Union was demanding recognition and bargaining . For example , when Schoenfeldt was testifying to the decision of Wilson at the July 2 meeting not to produce the contract , he testified : "There was also a comment about the fact that the representative of the Union at the time, and I know not who this was, I was led to believe , at least, that he was incompetent and had been relieved and in view of his relief Mr. Wilson was "I do not consider Wilson's query about methods of proving majority as indicating any doubt of majority in the appropriate unit. It must also be remembered that Kahn did not reveal the number of former Eagle employees that Respondent had hired at the time Wilson asked this question. 431 coming out here as his replacement, and him not buying what was in the contract that anything subsequent would be predicated on what he would be taking care of in it." Also, on cross-examination, Schoenfeldt testified: "There seemed to be an interplay at this point in time between Mr. Wilson and Mr. Herrmann and as I recall it at this time Mr. Wilson mentioned that, and he may have mentioned the person's name, but I gathered it was a person that he was replacing in this area ; that he wasn't too sharp and he wasn 't too competent and there were going to be some changes and so, therefore , if we were going to be discussing anything , it would be predicated on what he [Wilson ] felt was needed and then he elaborated somewhat on some of the deficiencies that he felt existed in the current contract, why he felt they existed, and changes that he felt would perhaps have to take place." Kahn gave similar testimony when he testified that "Mr. Wilson indicated that if we were not willing to be bound by the contract that existed that they would necessarily be interested in negotiating a different contract the next time and they would not probably be satisfied with some of the clauses in it." From all the evidence , I conclude that the position of the Union, known to the Respondent, was that it would permit the Respondent to assume the existing contract, but that if Respondent chose not to do so, then the Union wished to negotiate a new one . I find that, whether or not the Union , in so many words, asked the Respondent to recognize and bargain with it, it did so in fact." In addition to the evidence of the refusal to bargain at the July 2, 1968, meeting, the complaint alleges and the General Counsel contends that the Respondent refused to bargain when it dealt individually with employees and changed wage rates and other terms of employment. In the last week of June, 1968, Respondent gave to Eagle's manager applications of employment to distribute among Eagle's employees. During nonworking time, Respondent conducted interviews with Eagle employees as well as with applicants from the state employment agency. Upon its hiring of employees, Respondent gave each employee an informational brief about the Respondent and a document entitled, "Conditions of Employment at NAS , Alameda, California." The latter document listed straight and overtime wage rates, holidays, vacation, deduction for price of meals ; and it gave the Respondent 's requirements on personal appearance and cleanliness, causes for termination, use of timecards, paydays, and personal responsibility. At the end of this document there was a line for signature of the employee and the date of signing as well as a line for the supervisor's signature. Each employee and the supervisor were required to sign such a form. The Respondent in this informational document stated that the wage rate would be $2.63 per hour. This compares with $2. 15 per hour paid by Eagle . The number of holidays given by the Respondent also was increased and there were other differences in terms of employment. The Respondent points out that under the Service Contract Act of 1965, it was required to make minimum wage payments as fixed by the Department of Labor for given areas. A determination for the area including Alameda was made on March 29 , 1968, and the rate fixed for mess attendants in the area, including Alameda, was $2.63, and the determination also fixed vacation and IV. H. Rutter-Rex Mfg. Co., 164 NLRB No. 10; Bay Standard Products Mfg. Co.. 167 NLRB No. 44; Hackney Iron & Steel Co. 167 NLRB No. 84. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD holiday fringe benefits. Neither Eagle nor Respondent agreed to more than the benefits fixed by such determination. The General Counsel does not seriously contend that the increase in rate or number of holidays as required by law was a violation of the Act. But he argues that the Respondent's failure to discuss the matter with the Union, and Respondent's requirement of individual contracts by employees constituted a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act." Since I have already found that the Respondent was under a duty to bargain with the Union, I find such conduct to be additional evidence of a refusal to bargain. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation 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. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the employer at the General Mess, Alameda Naval Air Station, employed as full-time mess attendant service workers and regular part-time mess attendant service workers, and all casual mess attendant service workers who work an average of 15 hours or more per week for 9 consecutive weeks, excluding office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 18 4. On November 2, 1967, and at all times material thereafter, the Union was, and thereafter continued to be, and still is, the collective-bargaining representative of all employees in the aforesaid appropriate unit within meaning of Section 9(a) of the Act. 5. Respondent is a successor to U.S. Eagle, Inc., and as such successor is obligated to recognize and bargain with the Union. 6. On July 2, 1968, the Union requested Respondent to recognize and to bargain with it, and on and after that date, Respondent refused, in violation of Section 8(a)(5) of the Act, to recognize or to bargain with the Union. 7. By the aforesaid unfair labor practice, the Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend an order, pursuant to Section 10(c) of the Act, that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize or bargain with the Union, upon request. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action: (a) Upon request, bargain collectively with the Union and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at the premises of the Naval Air Station at Alameda, California, the proper officials of the Navy being willing, copies of the attached notice marked "Appendix."19 Copies of said notice, on forms provided by the Regional Director for Region 20, shall, after having been duly signed by an authorized agent of the Respondent, be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees 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. In the event that the Navy does not authorize the posting of such notices on its premises, then Respondent shall mail to each of its employees in the appropriate unit a copy of said notice. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of receipt of this Decision, of what steps he has taken to comply herewith.=0 "In the event that this Recommended Order is adopted by the Board, the words, "a Decision and Order" shall be substituted for the words, "the Recommended Order of a Trial Examiner " in the said notice. In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words, 36 36a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words, 36 36a Decision and Order." "In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX "General Counsel cites in his brief Paris Manufacturing Company, 149 NLRB 15, and Standard Candy Co.. 147 NLRB 1070, citing Southern Transportation . Inc., 145 NLRB 615, in which the Board held that the unilateral wage increases, made pursuant to a Department of Labor directive, did not constitute a violation of the Act. "This language is the description of the unit in the certification of the Union. NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: ABC FOOD SERVICE 433 WE WILL, upon request , bargain collectively with Industrial, Technical and Professional Employees Division, National Maritime Union of America, AFL-CIO, as the exclusive bargaining representative of all employees in the certified appropriate unit. The certified unit is: All full-time mess attendant service workers and regular part-time mess attendant service workers, and all casual mess attendant service workers who work an average of 15 hours per week or more for 9 consecutive weeks, excluding office clerical employees, guards and supervisors as defined in the Act. WE WILL NOT, by refusing to bargain collectively, or in any like or related manner , interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form , join, or assist the aforenamed or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective-bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as amended. Dated By ABC FOOD SERVICE, INC. (Employer) (Representative ) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue , Box 36047, San Francisco, California 94102, Telephone 556-0335.