Furr's Cafeteria, Inc.

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furr's Cafeteria, Inc. Cafeteria No. 16 and Hotel and Restaurant Employees and Bartenders Union, Local No. 716, AFL-CIO. Cases 28-CA-1700 and 28-CA- 1745 October 21, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On April 17, 1969, Trial Examiner George Christensen issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and Respondent filed an answering brief. 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 findings, conclusions, and recommendations of the Trial Examiner ' Our dissenting colleague would find that Respondent lacked a good-faith doubt of the Union's majority status and that, consequently, its advancement of a contract term shorter than that proposed by the Union constituted a refusal to bargain. In our opinion the basis for Respondent's expressed doubt are not so frivolous as to compel the conclusion that it was engaging in a pattern of surface bargaining designed to frustrate any attempt to reach an agreement Nor do we find other evidence that Respondent was bargaining in bad faith or ever actually refused to bargain following the June 19, 1968, settlement agreement.' The record reflects, and the Trial Examiner found, that Respondent did not insist on a contract termination date coinciding with the end of the certification year, nor on any hard and fast date. Rather, it proposed varying periods for the duration of the contract, extending as much as 6 months from the end of the certification year, dependent 'Since we find , in agreement with the Trial Examiner, that Respondent's postsettlement conduct did not violate the Act , we do not reach, and consequently do not pass upon , the presettlement conduct alleged as violations of the Act in Case 28-CA-1700 For that reason , cases cited by the dissent , concerning the basis for a good-faith doubt sufficient to justify a refusal to bargain , are irrelevant here upon agreement to other substantive provisions of the contract. We find nothing in the record to show that, following the settlement agreement, Respondent did other than engage in hard bargaining. 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 complaint herein be, and it hereby is, dismissed in its entirety. MEMBER BROWN, dissenting. The Union was certified in August 1967 Negotiations began in October and soon thereafter the Respondent questioned the Union's continued majority status. The Respondent amended its Answer to the Complaint to assert that it had a good-faith doubt of the Union's majority from and after December 19, 1967. The matter of contract duration was first discussed in February 1968, when Respondent suggested an expiration date of September 1, 1968, taking the position that it would not agree to a contract term which would preclude a challenge to the Union's majority status shortly after the end of the certification year; the Union offered a 1-year term from the date of execution. In March 1968 the Respondent offered an expiration date of January 15, 1969, and the Union accepted provided Respondent would agree to a union-shop clause. On May 8, 1968, the Union struck, and there was no bargaining between the parties until after the settlement agreement of June 19, 1968. On July 18 and 19, 1968, the parties met and the Respondent proposed an expiration date of October 1, 1968, and a maintenance of membership-dues check ott clause, while the Union asked for a term expiring April 18, 1969, with a modified union-shop provision. On July 23 the parties met again, with no change in position On August 13, the Union offered to accept the Respondent's maintenance of membership offer if, inter alia, Respondent agreed to an expiration date of September 15, 1969, and the next day (August 14) the Respondent offered an expiration date of January 15, 1969. My colleagues now find, in agreement with the Trial Examiner, that the Respondent's insistence on such limited term during the period after June 19, 1968, was taken in good faith. With this I cannot agree For this was a certified union and its majority was presumed to continue in the absence of a reasonable basis for questioning such status. This was true after the June 19 settlement as well as prior thereto. If only the Respondent's conduct after June 19 may be considered, it is apparent that the Respondent was questioning the Union's majority 179 NLRB No. 35 FURR'S CAFETERIA while asserting no grounds for its claim of doubt.' This, alone, renders questionable its bona /ideti in taking the position which it did Furthermore, the employee's representative is entitled to a reasonable period of bargaining after a settlement agreement has been entered, and the period here was insufficient.' If, on the other hand, the events after the settlement agreement may be considered in light of the presettlement conduct of the Respondent -- a view which is clearly permissible under well-established principles' - then the grounds on which the Respondent claimed to doubt the Union's continued majority are apparent and their validity may be evaluated The Trial Examiner found that the Respondent's belief that the Union no longer represented a majority of the employees was predicated on three grounds: (1) the Respondent sometime in mid-December had received a letter signed by four employees claiming that a majority of the employees wished to decertify the Union; (2) Respondent had knowledge of an extremely high turnover of employees in the unit ; and (3) only seven employees joined the strike called by the Union on May 8, 1968. 1 am of the opinion that these grounds furnished no reasonable basis for the Respondent to conclude that the Union had lost its majority status. As for the employees' alleged wish to decertify the Union, the Respondent had only the word of 4 employees in a unit of approximately 48 and nothing more. Particularly in light of the Union's substantial election victory just about 3 1/2 months earlier,' this can hardly be said to be a cogent indication that the Union had lost its majority support. With regard to the allegedly high turnover of employment, the Board and the Courts have long rejected this as a ground for rebutting the presumption that after the certification year the incumbent's majority status continued.' Indeed, it has been stated many times that new employees will be presumed to support a union in the same ratio as those whom they have replaced.' Moreover, the Trial Examiner makes no specific finding as to how many of the employees who originally voted in the election were no longer employed when Respondent is said to have reached its doubt as to the Union majority status, so that even the existence of the essentially high turnover has not been established 'That it was claiming such a doubt is apparent throughout, and is evidenced in the postsettlement period at least by its filing of its RM petition in October 1968 'W B Johnston Grain Co 154 NLRB 1115, enfd 365 F 2d 582 (C A 10) 'Northern California District Council of Hodcarriers and Common Laborers of America , AFL-CIO (Joseph Mohamed , Sr. an Individual, d/b/a Joseph's Landscaping Service) 154 NLRB 1384 'Of the 48 employees eligible to vote, 28 voted for the Union, only 6 against and 9 were challenged 'N L R B v The Little Rock Downtowner Inc. 341 F 2d 1020 (C A 8), and cases cited therein Cf Celanese Corporation of America, 95 NLRB 664, 671-674 'See, for example, John S Swift Company Inc. 133 NLRB 185, enfd 302 F 2d 342 (C A 7), National Plastics Products Compant 78 NLRB 241 Finally, with regard to the May 8 strike and the fact that only 7 employees walked out, there are many personal reasons other than disenchantment with their collective-bargaining representative which cause employees to respond in this fashion.' Respondent's known hostility to the Union, its unlawful interrogation of its employees as to their union activities, and its threatening to close its doors if picketing occurred could readily have coerced employees to withhold or withdraw support from the Union. In view of the foregoing and on the record as a whole, I find that the Respondent has advanced no valid grounds to question the Union's continued majority status and hence its insistence upon a contract of such limited duration in order that Respondent might again test the Union's majority'" constituted a failure to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act both after and before June 19, 1968. 699, 706, affd 175 F 2d 755 (C A 4) 'Cf Celanese Corporation of America 95 NLRB 664, 674 "Obviously the term of a contract is a subject of bargaining and the Respondent was not obligated to accept the precise term offered by the Union The issue before us is not so much the content of the Respondent's proposals, per se , as their reasonableness in the circumstances , i e , the validity of Respondent's reasons for advancing them TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Trial Examiner On May 7, 1968,' Hotel and Restaurant Employees and Bartenders Union Local No 716, AFL-CIO (Union) filed a charge in Case 28-CA-1700 alleging that Furr's Cafeteria, Inc., Cafeteria No. 16 (Respondent) had violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (Act) by maintaining a surveillance of its employees' union activities, circulating a petition among them to withdraw from the Union, unilaterally granting wage increases and refusing to bargain On June 7, Region 28 of the National Labor Relations Board (Board) informed the Respondent that as a result of its investigation of the charge it had concluded that Respondent had violated Section 8(a)(1) and (5) of the Act by interrogating employees about their union activities and by granting unilateral wage increases and proposed that the matter be disposed of by Respondent's execution of a settlement agreement On June 19 the Respondent executed such an agreement 2 It provided, inter a/ta, that the Respondent would post and comply with all the terms and provisions of a Notice to its employees which provided that the Respondent I Would not question its employees about their union activity, and 2 Would bargain collectively in good faith with the Union On July 23 the Union filed a second charge (Case 28-CA-1745) alleging that subsequent to the execution of the settlement agreement the Respondent had committed new and additional violations of Section 8(a)(1) and (5) of the Act, i.e , by stating to its employees that an election would be held in August and the Union would no longer 'All dates refer to 1968 unless otherwise indicated 'The Union executed the agreement on June 12 It was approved by the Regional office on June 19 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be their representative, by refusing to bargain collectively in good faith with the Union over the wages, hours and other conditions of employment of its employees, by demanding a contract termination date of October I, 1968, or sooner and by other acts, additionally asserting that by such acts the Respondent had violated the settlement agreement On September 18 the Regional Director for Region 28 advised the Respondent that as a result of his investigation of the charge in Case 28-CA-1745 he had determined that the Respondent engaged in a refusal to bargain subsequent to the execution of the settlement agreement in Case 28-CA-1700 and that the allegations of the charge in Case 28-CA-1745 had merit and therefore he was setting aside the settlement agreement, consolidating the two cases and issuing a formal complaint based thereupon The complaint issued on September 26 alleging that Respondent violated Section 8(a)(I) of the Act on various dates subsequent to November 7, 1967, by interrogating its employees concerning their union activities,' membership and desires and those of other employees, by threatening its employees with plant closure if the Union picketed its premises, by making statements which gave its employees the impression it was maintaining a surveillance of their union activities, by threatening employees picketing its premises with arrest, by telling its employees it would not sign a contract with the Union, that an election would be forthcoming shortly at which the Union would be decertified, and that further support of the Union was futile, and by telling its employees the Union would not get them anything in bargaining and Respondent would give them more than the Union could obtain for them The complaint further alleged that Respondent violated Section 8(a)(5) (and (1)) of the Act on various dates subsequent to November 7, 1967,' by unilaterally changing wage rates, by negotiating in bad faith and with no intention of entering an agreement with the Union as evidenced by the 8(a)(1) acts just set forth and by insisting on no union security provision and an unreasonable contract termination date of October 1, 1968, in order to test the Union's majority representative status as soon as possible The complaint also alleged violation by the Respondent of the June 19 settlement agreement and that a May 8 strike by the Union was caused and prolonged by Respondent's unfair labor practices On October 8 the Respondent filed its answer to the complaint denying commission of the unfair labor practices alleged and any violation of the settlement agreement.' By its answer Respondent admitted the jurisdictional facts set out in the complaint, that the Respondent was an employer engaged in commerce and the Union was a labor organization within the meaning of the pertinent provisions of the Act, that at all times pertinent Personnel Director Robert C Hurmence, Regional Supervisor Harold Andrews and Manager Kenneth Rue were its agents acting on its behalf within 'At the opening of the hearing the Examiner permitted the General Counsel to add a subparagraph (g) to paragraph 10 of the complaint alleging an additional unlawful interrogation by Respondent's manager, Kenneth Rue, of applicants for employment regarding their union membership , affiliation and sympathies on or about May 10 and an addition at the end of subparagraph 10(a) of the words "and applicants for employment " At the close of the General Counsel' s presentation of his direct case, the Examiner permitted him to amend subparagraph 15(d) of the complaint to substitute the date January 15 for July 23 the meaning of the pertinent sections of the Act, that a unit consisting of all employees of the Respondent at its Cafeteria No 16 in Santa Fe, New Mexico, exclusive of musicians, professional employees, watchmen, guards and supervisors as defined in the Act constituted a unit appropriate for the purpose of collective bargaining within the meaning of the pertinent provisions of the Act, that on August 4, 1967, a majority of its employees within that unit by a secret ballot election conducted by the Board designated and selected the Union as their exclusive collective-bargaining representative for the purpose of bargaining collectively with the Respondent concerning their wages, hours and conditions of employment, that on August 14, 1967, the Board so certified, that at all times since August 14, 1967, the Union has been the exclusive collective bargaining representative of its employees in the unit,' that it participated in a series of contract negotiation meetings with the Union between October 1967 and July 1968, and that on May 8 a small number of employees in the unit went on strike and have continued on strike at all times subsequent. The issues presented by the complaint and answer as amended are whether the Respondent by its named agents on or about the dates specified at its Santa Fe restaurant (1) interrogated employees and applicants concerning their and others' union activities, membership and desires, (2) threatened them with plant closure if the Union picketed its premises. (3) made statements giving them the impression their union activities were under surveillance, (4) threatened union pickets with arrest, (5) told employees Respondent would not sign a contract with the Union, (6) told employees an election would occur shortly at which the Union would be decertified and their further support of the Union was futile, (7) told its employees the Union would not get them anything and that Respondent would give them more than the Union could obtain for them, (8) gave them wage increases without prior notice to or consultation with the Union, (9) insisted on no union security and an unreasonable contract expiration date, and (10) if so, whether by such acts or conduct Respondent violated Section 8(a)(1) and (5) of the Act and either caused or prolonged the May 8 strike called by the Union. On October 21 the Respondent asserted that the complaint was vague and requested the Regional Director to furnish the names of all employees alleged to have been unlawfully interrogated, threatened, intimidated, and coerced by the Respondent, the names of all employees whose wage rates were alleged to have been increased unlawfully, the exact date of each such act, the language of each alleged unlawful statement constituting the unlawful interrogation, threat, intimidation, or coercion, the names of Respondent's agents who negotiated in bad faith with the Union, the dates, times, and places where such bad-faith bargaining took place, the names of the persons to whom the alleged bad faith statements were 'Respondent amended its answer to deny the complaint amendments set out above 'At the opening of the hearing the Examiner permitted the Respondent to amend paragraph 5 of its answer to change its admission that the Union was the duly selected exclusive representative of its employees in the unit at all times following the Board certification to a denial of such representation accompanied by an affirmative statement that at all times since December 19, 1967, the Respondent had a good-faith doubt that the Union continued to represent a majority of its employees in the unit and filed a petition in Case 28-RM-17 on October 21, 1968, for an election to determine whether the Union continued to enjoy such majority status, but such petition was dismissed by Region 28 on October 29, 1968, because of the pendency of this proceeding FURR 'S CAFETERIA addressed, the names of Respondent's agents who questioned the Union's majority status without a good-faith doubt thereof, and the names of the persons to whom such doubt was expressed The request was referred to Examiner Bennett for ruling He denied the request on October 5 On November 5 the Respondent asked leave from the Board to appeal the ruling On November 27 the Board denied that request. The Respondent renewed the request at the opening of the hearing (December 3) It was denied ' The Examiner conducted a hearing on the issues at Santa Fe, New Mexico on December 3, 4, 5 and 6 All parties appeared by counsel and were afforded full opportunity to introduce evidence, examine and cross-examine witnesses, argue orally and file briefs. The General Counsel and the Respondent filed briefs Based on his review of the entire record, observation of the witnesses and perusal of the briefs, the Examiner enters the following FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION As noted heretofore, the Respondent in its answei conceded the jurisdictional facts and the conclusions that it was an employer engaged in commerce and the Union was a labor organization within the meaning of the Act The Examiner therefore finds and concludes that the Respondent is an employer engaged in commerce and in a business affecting commerce and the Union is a labor organization within the meaning of Section 2(2),(5), (6) and (7) of the Act. II THE UNFAIR LABOR PRACTICES A Preluntnut i Findings The Board conducted an election among Respondent's employees in the unit heretofore described on August 4, 'It appeared to the Examiner that since the parties and their witnesses were all present for the hearing and prejudice to the Respondent could be avoided by its plea of surprise as to any evidence offered by the General Counsel and request for time to prepare therefor, the best interests of all concerned would be served by proceeding on that basis , and he so ruled He also noted that the complaint appeared sufficiently to apprise the Respondent of the dates , places, agents and acts whereby it was alleged to have violated the Act , that the Board has long followed the policy of not naming before trial the employees against whom the alleged discriminatory acts were directed to avoid their intimidation before trial, that much of the information sought was evidentiary in nature, that neither the Act or the Board's rules and regulations provide for the use of discovery procedures before trial , and that both the courts and the Board have held that denial of discovery does not violate due process N L R B v Movie Star, 361 F 2d (C A 5), NLRB v Vapor Blast Mfg. 287 F 2d 402 (C A 7), N L R B v Chambers Mfg. 278 F 2d 715 (C A 5), N L R B v Globe Wireless. 193 F 2d 748, 751 (C A 9), Plumbers & Steanifrtters (Beard Plumbing Co ). 128 NLRB 398, 400 Also see Trojan Freight Lines. Inc v N L R B. 356 F 2d 947 (C A 6), wherein it was held that such denial is within the discretion of the Board, and N L R B v Safewav Steel, 383 F 2d 273 (C A 5), where it was held that in any event such denial is not prejudicial error Respondent's named agents were present during the General Counsel 's presentation of his case in chief No surprise was claimed during such presentation After the General Counsel rested his case (during the third day of hearing), Respondent requested a recess He was unable to identify any evidence which took him by surprise The Examiner nevertheless offered to recess the hearing to the following morning, which would have afforded the balance of the day (plus the two evenings following the close of hearing the previous 2 days ) to prepare its rebuttal While claiming prejudice in not receiving more time, Respondent nevertheless elected to proceed immediately with its rebuttal and did so 243 1967 The Union received 28 votes of the 43 votes cast (48 were eligible to vote) The Board's certification issued on August 14, 1967 Face-to-face negotiations commenced on October 17, 1967, and continued on December 4 and 5, 1967, after an exchange of proposed contracts and receipt by the Union of bargaining information requested from the Respondent The parties met again on December 18 and 19, 1967, January 15 and 16, February I, 2, and 28, and April 8 When the April 8 meeting broke up, it was with tentative agreement on all contract issues but one, union security On this, Respondent offered maintenance of membership plus dues checkoff' and the Union proposed union shop with no dues checkoff Respondent left the meeting with a promise to consult with his superiors to secure their reaction to the union position On April 15, Respondent advised the Union (through the federal mediator) that it would not go beyond its offer of maintenance of membership and dues checkoff On May 7 the Union filed its charges in Case 28-CA-1700 and on May 8 called a strike against Respondent Approximately seven employees left their jobs to join the strike On June 19 the Respondent executed an agreement settling the charges On July 19 negotiations resumed, and continued on July 23 The parties were unable to reconcile their differences On July 23 the Union filed its charges in Case 28-CA- 1745 The parties met for the last time in negotiations on August 13 and 14, again without resolving their differences. During the year preceding the latter date, which coincidentally marks the end of the certification year, there had been almost a 500 percent turnover of employees within the unit B The Alleged Section 8(a)(l) Violations Harold Andrews It is alleged that Respondent violated Section 8(a)(1) of the Act by the following actions of its agent Harold Andrews I Interrogation of employees of Respondent regarding their and other employees' union membership in December 1967, January 1968, and on or about April 11 2 Statements to employees of Respondent in April a. That Respondent would lock its doors if its premises were picketed, b. Which gave them the impression their and other employees' union activities were under surveillance; c. That there was going to be another election in August which would result in the Union's decertification, that Respondent was not going to sign a contract and continued support of the Union was futile, d That the Union would not get anything for them but Respondent could and would. 3 A threat on May 10 to arrest employees of Respondent for picketing its premises 4. A repeat on May 10 of the conduct set out in 2,b, and 2,c, above. 5 A repeat on June 20 of the conduct set out in 2,c, and 2,d, above 8 This is the only allegation of independent 8(a)(I) violation after the date of execution of the agreement settling the charges in Case 28-CA-1700 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These allegations will be treated seriatim 1 The alleged December, January, and April interrogations Andrews and employee Angela Miller confirmed that sometime between September and December of 1967 Andrews overheard Miller and another employee discussing a recently held union meeting and somewhat playfully asked Miller if she had been invited to attend it, at which Miller laughed and replied in the negative. Andrews ended the exchange with the remark that he guessed they did not like her enough. Andrews and Miller explained that her vote in the August 1967 election was challenged by the Union and that she had several times approached Andrews and spoken to him about the Union and its plans and program.' This evidence fails to establish that the conversation took place within 6 months prior to the Union's filing of its first charge (May 7) and was more in the nature of a joking exchange than an employee interrogation. The Examiner therefore will recommend that this allegation of the complaint be dismissed (paragraph 10(a), re an alleged December 1967 interrogation). The record does not disclose any evidentiary support for the paragraph 10(a) allegation of a January' 1968 interrogation. It will be recommended that this allegation likewise be dismissed. As to the alleged April interrogation, Andrews acknowledged that on about April 28 while passing near her work station he asked employee Barbara Martinez in the presence of employees Gloria Apodaca and Jesse Martinez if she had received a letter from the Union regarding its last meeting, that she replied that she had not, and that he then grinned and told her not to worry about it. Andrews volunteered that he asked her the question because he wanted to find out if the employees were going to have an opportunity to decide whether to accept or reject the Respondent's April contract offer. While Andrews thus by his own admission intended to question Martinez concerning union activities, his question was preliminary and no interrogation resulted due to her negative reply. The exchange was fragmentary and does not appear of sufficient substance to support a finding of an unlawful interrogation. The Examiner will recommend that this allegation be dismissed (Paragraph 10(a), re April 11). 2. The alleged April threat, surveillance, intimidation, and promise About a month before the strike commenced (May 8), Richard Griego and Delfino Romero met with Andrews and Rue in the back dining room of Respondent's restaurant after completing work for the day, at Andrews' request. A third supervisor, Harold Hansen, was also present. Andrews informed Griego and Romero that six employees had voted against the Union at the election, that he .knew who the six were, and that he knew Griego and Romero were not among them. He criticized the two for voting for the Union, said they were just sheep, and that they would find out later what the Respondent would do for them He also told them that if the Union ever put "This finding is based upon the mutually corroborative testimony of Angela Miller and Harold Andrews. up a picket line at Respondent's premises, it would close its doors, turning his hand as if in the act of locking a door while saying "click-click."" The Examiner concludes that Respondent interfered with, restrained and coerced Griego and Romero's exercise of their Section 7 rights and violated Section 8(a)(1) of the Act by Andrews' telling Griego and Romero the Respondent would lock its doors if any picketing occurred at its premises, since this was a threat of a lockout if the employees engaged in their right to picket in support of their requests for changes in their wages, rates of pay and working conditions. Andrews' recitation of his knowledge concerning the identity of the six employees who voted against the Union (and therefore the identity of the others who voted for it) does not necessarily imply that such knowledge was derived from any surveillance of the union activities of the employees in question. The six may have volunteered to him the information that they voted against the Union; they may by openly expressing antiunion sentiments within his hearing have led him to that conclusion; etc The Examiner thus concludes that such recitation" does not give the impression that a surveillance of its employees' union activities was being maintained by the Respondent and he shall recommend dismissal of such allegation (paragraph 10(c), re April 10). Neither Griego nor anyone else testified to any April statements by Andrews regarding an election in August at which the Union would be decertified, nor a reference to a contract, nor a statement that continued support of the Union was futile. The General Counsel argues that Andrews' statement to Griego that the Respondent would lock its doors if pickets appeared contains grounds for inferring that continued support of the Union was futile. The Examiner disagrees The Examiner therefore finds that the General Counsel failed to proffer evidence in support of paragraph 10(e) of the complaint with regard to any April 10 incident and will recommend dismissal thereof. Andrews stated to Griego and Romero that "later on we would find out what the cafeteria would do for us." In the Examiner's judgment this language is ambiguous and he is unable to find an implied promise of benefits that Respondent will supply some time in the future that the Union will bey unable to secure. The Examiner concludes that the April 10 portion of paragraph 10(f) of the complaint is not supported by sufficient probative evidence to warrant a favorable finding thereon and will recommend its dismissal. I 3. The alleged May 10 threat Andrews and employee Jennie Arguello confirm that shortly after the strike started on May 8 Andrews addressed Arguello on the picket line (Arguello was the picket captain) and stated he would call the police. However, Arguello conceded that Andrews prefaced that statement with a request that the pickets cease picketing in a manner which prevented customers from entering and leaving the cafeteria by its front door and said he would call the police if they did not comply with that request (they did comply). To threaten action he was legally entitled to take to assure free passage into and out of the "This finding is based upon the undenied and uncontradicted testimony of Griego Hansen and Romero were not called to testify Andrews and Rue contented themselves with a denial of any recollection of the conversation, which is not a denial that it occurred. FURR'S CAFETERIA 245 cafeteria is not violative of Section 8(a)(1) of the Act and the Examiner will recommend dismissal of this allegation on that ground (paragraph 10(d) of the complaint) 4 The alleged May 10 surveillance and intimidation when the Respondent executed that agreement, and most likely took place shortly thereafter Inasmuch as the evidence as found above fails to substantiate the allegations of paragraphs 10(e) and (f) as to their June 20 allegations, it shall be recommended that they be dismissed Respondent called a meeting of its employees at the cafeteria not long after the strike started to explain its stand, and particularly its reasons for not agreeing to the Union's union shop demand, which was the sole issue preventing agreement prior to the commencement of the strike. Hurmence acted as spokesman at the meeting, as he at all times was in charge of the contract negotiations for the Respondent The meeting apparently occurred during the week of May 20 to 24, since Hurmence read an advertisement Respondent inserted in the May 17 local newspaper setting out its position None of the employee testimony at the hearing developed any remarks which in the judgment of the Examiner could support a finding that Hurmence of any other management official in attendance gave the impression the Respondent was maintaining a surveillance of its employees' union activities, views, or sympathies. Hurmence, not Andrews, in response to an employee inquiry, stated an election could occur after the end of the certification year (i.e , after August 14, 1968) However, he did not state that an election would occur No testimony was offered to any statement, by Hurmence or any other management representative present, that Respondent would not execute a contract with the Union Hurmence spoke of the picketing, explained the Union's right to seek its objective (union shop) by striking and picketing, stated it was Respondent's right to adhere to its position (maintenance of membership) and that Respondent was going to stick to that position Such statement of position was within Respondent's free speech privilege Certainly such expression carries the implication that continued support of the Union's strike objective would not be successful, but it is not unlawful On the basis of the foregoing, the Examiner will recommend that paragraphs 10(c) and 10(e) of the complaint be dismissed (with reference to the May 10 allegations thereof). 5 The alleged June 20 intimidation and promise Another employee meeting occurred in June, when a film was shown on sanitation . Following the film showing, Andrews addressed the employees in attendance regarding certain picketing incidents, a rumor regarding replacements, and to explain the agreement Respondent had signed on June 19 settling the first charge (Case 28-CA-1700). With regard to the picketing, Andrews stated that he had received complaints of picket conduct from several employees and cautioned them to avoid any unnecessary contacts and to report any future incidents to him. He advised them the Union had a right to picket the cafeteria as long as it wanted to and the cafeteria had a right to continue to operate its business, and would continue to do so As to replacements, he assured them the Respondent had no intention to replace those working As to the settlement agreement, he commented, inter alia, that the Respondent had been found in violation of the Act by granting wage increases and would have to refrain from granting increases." Since part of Andrews' remarks referred to the settlement agreement, it is clear this meeting occurred subsequent to June 19, a Wednesday, Kenneth Rue It is alleged that Respondent violated Section 8(a)(1) of the Act by the following actions of its agent Kenneth Rue 1 A February 11 interrogation of employees of Respondent regarding their and other employees' union membership, activities, and desires 2 An interrogation about May 10 of employees of Respondent and applicants for employment by Respondent concerning their and others' union membership, activities, and desires 3 Statements about June 16 to employees of Respondent which gave them the impression their and other employees' union activities were under surveillance.' These allegations will be treated seriatim 1. The alleged February 11 interrogation On about February 11, Rue asked employee Geraldine Roybal if she and Barbara Martinez had attended the union meeting the preceding night and if Roybal knew Jack Byers, the Union's business representative Roybal replied in the negative to the first question and in the affirmative to the second The exchange took place in the course of a running conversation which took place while both were working at the salad bar Roybal stated they usually chatted while so employed Roybal's negative response to the first question precluded any interrogation as to what transpired at the meeting and the latter question appears wholly innocuous For these reasons, the Examiner shall recommend that this allegation of the complaint (paragraph 10(a), as to a February 11 interrogation) be dismissed 2 The alleged May 10 interrogation The Union called its strike and commenced picketing on May 8 Shortly thereafter, Gloria Garcia was interviewed by Rue for employment No pickets were present at the time of the interview, so Rue informed Garcia there was a strike on and the Union was picketing the cafeteria and asked her if she was in the Union, whether she would work behind a picket line, i e , was she willing to cross the Union's picket line. She replied that she was willing to do so. Rue also asked her if her husband was working and in the Union, and she replied that he was not working due to a back injury, which was why she needed a job badly This appears no more than the seeking of an assurance that the prospective employee would report for work despite the fact a strike was in progress and an inquiry into her husband's potential availability for employment "This finding is based upon the mutually corroborative testimony of Andrews, Rue, and employees Angela Miller , Ercilia Montez and Jessie Martinez The testimony of employee Gloria Garcia and Ramon Romero to additional remarks by Andrews re another election in August, the futility of paying union dues, etc, is discredited in view of the uniform denial of the five persons earlier named that such remarks were made Garcia was a confused and contradictory witness and Romero's testimony was completely unsupported by anyone else in attendance at the meeting "See fn 8, /bid 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and similar willingness. For this reason, it shall be recommended that this paragraph of the complaint be dismissed (it was added by oral amendment at the opening of the hearing). 3. The alleged June 16 statements On about June 16 Ramon Romero, Rue and a third person Romero was unable to identify were in Rue's office. Romero testified that Rue talked to him about washing pots, told him he was not doing the job very well and that he was going to keep Romero on pots until he could do the work efficiently. Shortly thereafter, according to Romero, the unknown third person said Romero had been to see Jack Byers, the Union's business agent. Romero asked him to prove it and he said he could not do so. The Examiner shall recommend that this allegation of the complaint be dismissed for failure to provide evidentiary support of it (paragraph 10(c) as to an alleged June 16 incident). C. The Alleged 8(a)(5) Violations 1. The unit and union majority status As noted heretofore, there is no dispute between the parties that a unit of all employees of the Respondent at its Cafeteria No. 16 in Santa Fe, New Mexico exclusive of musicians, professional employees, watchmen, guards and supervisors as defined in the Act constitutes an appropriate unit within the meaning of Section 9 of the Act and the Examiner so finds. It is likewise undisputed that on August 14, 1967, the Union was certified by the Board as the exclusive collective-bargaining representative of the employees within that unit and from that date to August 14, 1968, acted as their representative in collective bargaining with the Respondent over their wages, hours and working conditions. 2. Unilateral wage increases The parties stipulated to wage increases made effective in November and December 1967 as well as January, February, and April 1968. Respondent conceded it neither notified nor bargained with the Union prior to placing the increases into effect. There were five raises in November, four of 5 cents per hour and one of 10 cents; two raises in December, one of 5 cents and the other of 10 cents; one in January of 5 cents; six in February, three of 5 cents and three of 7 cents; ten in April, three of 5 cents, two of 10 cents, one of 15 cents and four of 25 cents. All the April increases were placed into effect on April 21, after the bargaining impasse and shortly before the strike. Rue explained that all the February increases (six in number) were to bring Respondent's minimum wage structure into compliance with the Fair Labor Standards Act, which required a $1.15 minimum wage as of that time. He stated he was directed to raise all employees receiving less than that rate up to the required minimum. Company records disclosed that several employees earning less than $1.15 at the time were not increased to the minimum. Rue pleaded oversight and negligence to this. He attributed the bulk of the increases, 16 in number, to changes in job content, which resulted because of rapid promotion caused by the excessive turnover normal to the cafeteria business. As to two 5-cent increases in April to Jennie Arguello and A. M. Torres, Rue attributed their increases to improved job performance, i.e, merit. No evidence of an established company policy concerning merit increases was developed; in fact, Rue testified that while the Respondent granted merit increases prior to the union certification, it ceased such policy thereafter. The Examiner therefore finds that at least as to the Arguello and Torres April increases, the Respondent by failing to notify and discuss such proposed increases with the Union prior to their effectuation, the Respondent failed to bargain in good faith and thereby violated Section 8(a)(5) and (1) of the Act. In view of this finding the Examiner finds it unnecessary to make a specific finding as to the balance of the increases. 3. The alleged failure to bargain in good faith After meetings, exchanges of documents, and telephone conferences dating from August 24, 1967, to April 8, 1968, the parties reached tentative agreement on all issues but one - union security. At the April 8 meeting the Respondent offered a contract expiration date of January 15, 1969, and a maintenance of membership-dues checkoff union security provision The Union countered with an offer to accept the proposed January 15, 1969, expiration date (and all other provisions tentatively agreed upon - including, apparently, the wage schedule then in effect) and do without dues checkoff if the Respondent would agree to union shop as the union security provision. Hurmence agreed to take this back to his principals and let the Union know if they would so agree. On April 15 the Union was notified that the Respondent would not agree to union shop. Faced with this impasse, on May 8 the Union called a strike and commenced to picket the Respondent's establishment. Seven employees left their jobs to join the strike. Prior to the fateful April 8 meeting, the parties had reached agreement on approximately 31 issues, all requested information was furnished with reasonable promptness, the parties met at reasonable times and places, and at its close only remained at odds over one issue. On these facts it is not possible to find that the Respondent, at least up to the date of strike, did other than engage in hard bargaining. Tracing the history of the bargaining on the crucial issues, contract duration and union security, it appears that with reference to the latter, the original union proposal submitted to the Respondent in September 1967 provided for union shop and dues checkoff with a blank for contract expiration date. The Respondent's counterproposal submitted later that month provided for maintenance of membership, a blank for contract expiration date, and made no provision for dues checkoff. In January the Respondent added a dues checkoff provision to its offer. Both parties held fast thereafter on their respective union security positions, except that on April 8 the Union offered to forget dues checkoff if it could get a union shop agreement. As to contract duration, this was not discussed until February. At that time the Respondent proposed an expiration date of September 1, 1968, and the' Union countered with a proposed expiration date one year from the date of execution of any contract. In March, Respondent proposed an October 1, 1968, expiration. The Union adhered to its 1-year contract position. As recited FURR'S CAFETERIA 247 heretofore, on April 8 as part of its package proposal the Respondent offered an expiration date of January 15, 1969, and the Union accepted, provided the Respondent would agree to union shop. The Union struck on May 8 and filed its charges in Case 28-CA-1700 the previous day No bargaining took place until after the Respondent's execution of the June 19 agreement settling that charge The parties next met on July 18 and 19, July 23, and August 13 and 14 At the July 18 to 19 meeting, the Respondent reverted back to its March proposals for an October 1, 1968, contract expiration date and maintenance of membership-dues checkoff, plus small wage increases to certain classifications The Union countered with an offer to exclude six employees from the unit if the Respondent would accept a union shop provision, and a 9-month agreement (to expire April 18, 1969). Both parties discussed the former, agreed it was unlawful, and the Union then proposed a modified union shop. No agreement was reached The same deadlock occurred at the July 23 meeting At the August 13 meeting the Union offered to accept the Respondent's maintenance of membership offer if the Respondent would grant an immediate wage increase of 10 cents to all employees, another 10-cent increase on February 1, 1969, and a contract expiration date of September 15, 1969. On August 14 the Union reduced its February wage proposal to 5 cents Respondent stated it would renew its April 8 offers of a January 15, 1969, expiration date and a maintenance of membership-union security provision, but that it would not grant the increases proposed Negotiations then broke off and have not resumed since By April Hurmence had reached the belief that the Union no longer represented a majority of its employees within the unit, he based this belief on his knowledge of the extremely large turnover of employees in the unit, in excess of 500 percent per annum, a letter he had received in December 1967 signed by four employees stating that a majority of the employees wished to decertify the Union, and reports from the supervisors on the scene. Sometime between January and April he expressed this doubt to the union negotiators, who replied defensively. When only seven employees joined the strike, his belief became a certainty He took the position that he was not going to agree to a contract term which would preclude a challenge of the Union's majority status within a reasonable time (Respondent filed a petition seeking an election to determine the Union's majority status on October 21, 1968, in Case 28-RM-17, which was dismissed due to the pendency of this proceeding) The General Counsel contends that Respondent took inconsistent positions on union security through the negotiations and thereby demonstrated its bad-faith bargaining The evidence is to the contrary. From the time of its first contract proposal in October 1967 to the last meeting of the parties in August of 1968 the Respondent offered a union security provision providing for maintenance of membership, i.e , any employee who joined the Union voluntarily during the term of the contract would be required to maintain his membership in the Union for the balance of the contract term. The Union, on the other hand, started with union shop and by August of 1968 offered to accept maintenance of membership (provided certain wage demands were met) As to contract duration, prior to the strike the parties tentatively agreed on a January 15, 1969, contract expiration date; true, they reverted back to earlier positions when bargaining resumed in July, but even then at one point were only three months apart (the Union offered to accept a contract expiring in April of 1969 at a July meeting, Respondent offered a contract expiring in January of 1969 at an August meeting). Section 8(d) of the Act clearly provides that while it is the obligation of an employer and the Union representing his employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other working conditions of the affected employees, they are not compelled to agree to proposal or make a concession, several courts and the Board have pointed out that employer insistence on either limited or no form of union security comes within the purview of the latter portion of Section 8(d) just quoted N L R B v Gopher Aviation, 402 F 2d 176 (C A 8); Capitol Aviation v N L R B, 355 F 2d 875 (C.A 7), N L R B v Southern Coach and Body Co , 336 F 2d 214 (C.A 5), Intercontinental Eng and Mfg Co , 151 NLRB 1441; Star Expansion Industries, 164 NLRB No 95 In two of those cases, insistence on a contract term ending with the certification year also was held not to constitute bargaining in bad faith (Capitol Aviation v N L R B, ibid, N L R B v. Southern Coach and Body Co , ibid ) Based on the foregoing, the Examiner finds and concludes that the Respondent, while engaging in hard bargaining, did not bargain in bad faith in violation of Section 8(a)(5) and (1) of the Act, either before or after execution of the June 19 settlement agreement but to the contrary met and bargained in good faith with the Union throughout the certification year. The Examiner therefore shall recommend that those portions of the complaint alleging a refusal to bargain on the part of the Respondent be dismissed 4. The alleged unfair labor practice strike The Examiner has entered findings above that at the last meeting prior to the May 8 strike the parties reached an impasse over the issue of union security and the Union thereupon struck in order to bring economic pressure to bear to cause the Respondent to yield to its proposal on that issue The Examiner based upon that finding and those preceding with regard to the 8(a)(5) allegation finds that the May 8 strike was neither caused nor prolonged by any unfair labor practice committed by the Respondent but rather was an economic strike and therefore will recommend that the portion of the complaint so alleging be dismissed 5 The effect of the finding of no postsettlement violation The Regional Director for Region 28 set aside the June 19 agreement settling Case 17-CA-1700 on the ground his investigation of the charge in Case 17-CA-1745 led him to conclude that the Respondent had violated the agreement The Examiner has entered findings above that the postsettlement conduct alleged as violative of Section 8(a)(5) and (1) did not violate those sections and stated that he shall recommend that they be dismissed. The presettlement conduct the Regional Director determined to be violative of the Act were certain coercive interviews and the unilateral grant of several wage increases, by virtue of the settlement agreement the Respondent obligated itself not to repeat the objectionable interviews and to refrain from granting unilateral increases and to bargain with the Union in good faith at 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its request The Examiner has entered findings that no coercive conduct violative of Section 8(a)(1) has occurred subsequent to June 19, the date of execution of the agreement , and that the Respondent has bargained in good faith since that date The Examiner therefore finds and concludes that the Respondent did not violate the settlement agreement of June 19 and will recommend that the portion of the complaint so alleging be dismissed. Ordinarily when no postsettlement conduct has been found to be violative of the settlement agreement and the Act, the entire complaint is dismissed and no findings are made as to the presettlement conduct (Jackson Mfg Co , 129 NLRB 460) For the convenience of the reviewing authorities , however, the Examiner has entered findings on the presettlement conduct (Case 28-CA-1700) Inasmuch as he has not found any postsettlement violations, however , he shall recommend that the complaint be dismissed and that the settlement agreement be reinstated (Teamcterc General Local 200 (Bachman Furniture Co ). 172 NLRB No 119, Conroe Creosoting Co , 149 NLRB 1174 CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce and in a business affecting commerce and the Union is a labor organization within the meaning of Section 2 (2), (5), (6), and (7) of the Act. 2. Respondent did not commit the postsettlement agreement violations of the Act alleged in the complaint. RECOMMENDED ORDER On the basis of the foregoing findings and conclusions, and upon the entire record in the case, the Examiner recommends that the complaint be dismissed and the June 19, 1968, settlement agreement be reinstated