Cattlemens

CATTLEMENS SADDLE AND SIRLOIN 83 Twin Falls Feeding Co., Inc. d/b/a Cattlemens; Winton Land and Cattle Co., Inc ., d/b/a Cattle- mens Saddle and Sirloin and David Comb Bartenders and Culinary Workers Union Local No. 770, Hotel and Restaurant Employees and Barten- ders International Union, AFL-CIO and David Comb. Cases 20-CA-6731 and 20-CB-2469 July 10, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 22, 1972, Trial Examiner George Christensen issued the attached Decision in this proceeding. Thereafter, the General Counsel, the Respondent Employer, and the Charging Party filed exceptions and supporting briefs. The Respondent Union filed limited cross-exceptions and a beef in support thereof and in support of the remainder of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions, cross- exceptions, and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions, and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be dismissed in its entirety. i We note the following inadvertent error in the Trial Examinees Decision, which does not affect our conclusion herein- All references pertaining to the testimony of Banks should properly refer to the testimony as that of Reed TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN , Trial Examiner : On December 7, 8, and 9, 1971, I conducted a hearing at Santa Rosa, California to try issues raised by a consolidated complaint' issued June 21, 1971, based upon (in both cases) charges filed on May 5, 1971 and amended charges filed on June 1, 198 NLRB No. 21 1971.2 The complaint alleges and the Company3 and the Union4 deny that they latter) violated' Section ' 8(a)(1), (2) and (3) and 8(b)(1) and (2) of the National Labor Relations Act, as amended, by executing a collective- bargaining agreement at a time the Union did not represent an uncoerced majority of the employees covered thereby. All parties appeared by counsel and were afforded full opportunity to adduce evidence, examine and cross-exam- ine witnesses, argue and file briefs. Briefs were filed by the General Counsel, the Company and the Union. Based upon his review of the entire record, observation of the witnesses, perusal of the briefs and research, the Trial Examiner enters the following: FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The commerce facts and the qualification at all pertinent times of the Company as an employer engaged in commerce in a business affecting commerce and the Union as a labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act are conceded by the parties and the Trial Examiner so finds. II. THE ALLEGED UNFAIR LABOR PRACTICE A. The Contract It is undisputed that on December 4, 1970,5 the Company and the Union executed a contract wherein the Company recognized the Union as the exclusive collective- bargaining representative for "all the employees employed by the Employer coming under the jurisdiction of the Union." The contract contained a union shop provision, provisions governing holidays, vacations, health and welfare benefits and contributions, overtime, reporting pay, rates of pay, grievances and arbitration, etc., and a termination date of March 31, 1974, plus automatic rate increases on April 1, 1971, April 1, 1972, and a wage opener on April 1, 1973. B. Contract Coverage and the Unit The parties treated all employees classified as bartenders, waiters, hostesses, cocktail waitresses, broiler cooks, r Those portions of the complaint relating to Winton Land & Cattle Co, Inc d/b/a Cattlemens Saddle and Sirloin at Santa Rosa, California, and Local 770 were settled during the course of the hearing This Decision therefore shall concern only those portions of the complaint relating to Twin Falls Feeding Co, Inc, d/b/a Cattlemens at Petaluma, California, and the Union's activities related thereto. 2 The Trial Examiner denied the Union's motion to dismiss the complaint grounded on Comb's status as a management consultant and stranger to the parties, with the implication Comb was "fronting" a Company attempt to evade its obligations under the Company-Union contract by filing the charges and amended charges almost six months after the contract execution The Trial Examiner relied on the statutory language permitting any person to file a charge, without regard to his motive therefor 3 Twin Falls Feeding Co, Inc d/b/a Cattlemens, hereafter called the Company 4 Bartenders and Culinary Workers Union Local No 770, Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO, hereafter called the Union or Local 770 5 While one witness for the Company (Geary) contended that the contract was signed on December 3, 1970, the General Counsel conceded that the sequence of events supported the testimony of Union witnesses and the Union's contention that the contract was signed on December 4, 1970. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD miscellaneous kitchen help, saladman, bus boys, and dishwashers as "employees . . . . under the jurisdiction of the Union." The Company listed 65 employees on its active payroll in the foregoing classifications on December 3, 1970 (the day before the contract was signed), namely: Bartenders Bus Boys Crosby Barber Newton Carlsen Verduzco Chism, B. Chism, S. Waiters Holloway, W. Banks Jacobsen Beaman Kula Cary, D. Martinez Conklin McCarthy Giovannoli Pels Hand Stock Hansen Tegnell Isaak Thurman Leslie Wilson Lomasson Merkel Broiler Cooks Reed Van Zante Ballance Weeks Brant Gunheim Hostesses Holloway, J. Cary, K. Page Fleming Riley Fortune Rotnicki Taverna Schweitzerhof Cocktail Wright Waitresses Saladman Cox Delmartini Custer Garrett Misc. Kitchen Goldwater Dodd Ielmorine Hogan Mancini Johnson Newton Mears Simmons Oberg Van Eijk Steiding Webster Wheelwright Dishwashers Beach Brucker Farris The General Counsel and the Union agree that barten- der Verduzco was not within the unit on December 4, 1970, in view of undisputed evidence that Verduzco was regularly employed at Cattlemens Saddle & Sirloin in Santa Rosa, only worked 2 days at Cattlemens in Petaluma, and worked the 2 days in question after December 4, 1970. The General Counsel and the Union also agree that kitchen helper Dodd was not within the unit on the basis of undisputed evidence that Dodd did not commence work until December 8, 1970. On the basis of the foregoing, the Trial Examiner finds that Verduzco and Dodd were not within the unit on December 4, 1970, reducing it to 63 employees. The General Counsel contends that bartender Newton, waiters Banks and Reed, and bus boy Stock were supervisors on December 4, 1970, and should be excluded from the unit. The Union contends that on December 4, 1970, broiler cooks Ballance and J. Holloway, dishwashers Beach, Brucker, and Farris, and waiter Isaak were casual employees; kitchen employee Steiding was a supervisory employee; and kitchen employee Hogan and cocktail waitress Webster were not employees of the Company. On those grounds, the Union seeks to exclude those employees from the unit. The issues raised by these contentions shall be resolved below. 1. Steiding Company President Gillham and Assistant Manager Vanderford testified that Steiding was a salaried employee in charge of the kitchen. Gillham stated that his duties were to prepare cooked vegetables and salads and to keep the kitchen area neat and clean and that Steiding did not prepare meat other than placing it on skewers for beef-ka- bob orders. Steiding's name was listed by the Company under the classification of miscellaneous kitchen employee. All other employees so classified other than Steiding were paid an hourly rate. While Gillham stated that Steiding did not direct the work of the other miscellaneous kitchen employees, it is apparent from the size of the business operations and work force that Steiding alone did not prepare all the salads and vegetables, prepare all beef-ka- bob orders, and clean the kitchen area, so it is reasonable to infer that Steiding led and directed the other miscellane- ous kitchen employees in the performance of those duties. On the basis of the foregoing, the Examiner finds and concludes that Steiding was a working leader of the miscellaneous kitchen employees properly includable within the unit. 2. Webster and Hogan The payroll records of the Company show that Webster, a cocktail waitress, drew pay from the Company in the August 15 to 31, 1970 payroll period, drew no pay between September 1, 1970 and January 15, 1971, and again drew ' ay in the January 15 to 31, 1971 payroll period. Assistant Manager Vanderford testified that Webster was removed from the payroll in August of 1970 at her own request. Vanderford further testified that while Webster indicated that she wanted to come back at some future time, there was no definite date or time agreed upon, and Webster was 1 CATFLEMENS SADDLE AND SIRLOIN 85 informed that when she wanted to return, the Company would let her come back if there was an opening available at that time. From the above, it is clear that Webster voluntarily left the Company's employ in August of 1970 without expectation of future employment unless at some indefinite future date she chose to apply for employment and the Company had a vacancy in its cocktail waitress classifica- tion. On the basis of the foregoing, the Examiner finds and concludes that Webster was not an employee of the Company on December 4, 1970 and therefore is excluded from the unit, reducing the unit to 62 employees. Hogan worked as a miscellaneous kitchen employee during the November 15 to 30, 1970 payroll period, he did not work between December 1, 1970 to January 14, 1971, and again worked during the January 15 to 31, 1971 payroll period. Vanderford testified that Hogan did not work between December 1, 1970 and January 14, 1971 because he did not want to work during that period and was not needed. There was no understanding that Hogan would only be reemployed after November 30, 1970 upon request if a vacancy existed in the miscellaneous kitchen employee classification and his nonworking period was of brief duration. On the basis of the foregoing, the Examiner finds and concludes that Hogan was an employee of the Company in a classification within the unit on December 4, 1970. 1 3. Ballance, J. Holloway, Beach, Bruckner, Farris, and Isaak Broiler cook Ballance worked 13-3/4 hours during the December 1 to 15, 1970 payroll period and commensurate hours immediately before and thereafter. Broiler cook J. Holloway worked 10-3/4 hours during the December 1 to 15, 1970 payroll period, and commensu- rate hours immediately before and thereafter. Dishwasher Beach worked 19-1/2 hours during the December 1 to 15, 1970 payroll period, many more hours immediately before and fewer hours immediately there- after. Dishwasher Brucker worked 17-3/4 hours during the December 1 to 15, 1970 payroll period, many more hours immediately- before and fewer hours immediately there- after. Dishwasher Faros worked 8 hours during the December 1 to 15, 1970 payroll period and a greater number of hours both immediately before and thereafter. Waiter Isaak worked 12-1/4 hours during the December 1 to 15, 1970 payroll period and a few hours more immediately before and thereafter. None of the six employees just named were on regular work schedules. All six were college students at all times pertinent to this proceeding, as were most of the Company's employees. Only 10 of the 62 employees remaining in the unit (according to the Examiner's findings entered heretofore) were nonstudents,6 and only 4 of these 10 were on regular work schedules.7 Thus the scheduling of hours for 58 of the 62 employees remaining in the unit were flexible and adjusted to student needs and those of the restaurant.8 It was stipulated that none of these six employees signed union authorization cards prior to December 4, 1970. Other employees within the 62 remaining within the unit, on whose behalf the Union submitted authorization cards purporting to be signed on or immediately prior to December 4, 1970, also worked hours commensurate with those of these six,9 the Union, however, did not seek their elimination from the unit as "casual" employees. It is further noted that the Union did not refrain from accepting initiation fees and dues from Ballance and Isaak.io In the judgment of the Examiner these six employees, and others similarly situated, worked a sufficient number of hours during times pertinent to this proceeding in unit classifications to qualify as employees within the unit on December 4, 1970. The Trial Examiner therefore finds and concludes that Ballance, J. Holloway, Beach, Brucker, Faros, and Isaak were employees within the unit on December 4, 1970. 4. Newton, Banks, Reed, and Stock In a list prepared by the Company from its payroll records of employees within the unit on December 3, 1970, the Company listed Newton among the bartenders, Banks and Reed among the waiters, and Stock among the bus boys. Assistant Manager Vanderford stated that only Newton, of the four, was a full-time, regularly scheduled" employee. The Company raised no question concerning the exclusion of any of the four at the time the Union sought recognition as their exclusive collective-bargaining repre- sentative on December 4, 1970 and all four were included within the unit covered by the contract.12 All four signed union membership applications and submitted them to the Union on December 3, 1970. It is undisputed that as of the crucial date (December 4, 1970) all four spent all but a small portion of their time performing the work of their respective classifications. Company President Gillham termed Newton his "bar manager." Banks testified, however, that Newton was not so-called by the employees. Newton was not listed under that title in Company records. Gillham also testified that only Newton and Greenwell, the Company's manager as of December 4, 1970, ' had the authority to order liquor. Gillham further testified that Newton directed the work of the other bartenders, had authority to recommend their hiring and firing, and set up their work schedules. His 6 Hostesses K. Cary and Fortune, miscellaneous kitchen employees Hogan, Johnson, Mears, and Steiding, cocktail waitresses Cox and Goldwater, broiler cook Wright, and bartender Newton. 7 Newton, Johnson, Mears, and Steiding 8 The restaurant's business vaned from day to day and week to week, with the heaviest volume on weekends and around holidays 9 See, for example, the hours worked by bus boy S Chism and waiter Giovannoh 10 The record does not disclose whether such fees and dues were accepted from the other four. ii Vanderford defined a regularly scheduled employee as one who was scheduled to work the same shift, hours, and days from week to week 12 Nor did the Company seek to exclude Steiding , who was in charge of the kitchen, or the "head cocktail waitress" mentioned by Gillham in the course of his testimony. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony was not corroborated by Vanderford or by Banks, and neither Newton nor Crosby testified. Gillham could not cite any instances wherein Newton had exercised his alleged powers to recommend a hire or fire. As of December 3, 1970 there was only one other bartender listed in the employ of the Company, Crosby. Gillham also stated that Newton decided when to close the bar (mainly because the manager, Greenwell, and the assistant manag- er, Vanderford, usually left when the dining room closed, while the bar remained open to a later time).13 Newton was paid $2 more per shift than the other bartender. Gillham again was the sole witness to alleged supervisory duties performed by Reed, Banks, and Stock; neither Reed nor Stock was called, Banks' testimony was limited almost entirely to his organizational activities on behalf of the Union, and Vanderford limited her testimony to payroll information concerning the three and corroboration (on cross-examination by the Union) of Gillham's testimony that the three spent all but a small portion of their time performing the duties of their classifications (waiting on table, cleaning tables). While Gillham termed Reed and Banks as "headwaiters" and Stock as "head bus boy," Company records reflect that on December 3, 1970 they were carried under the title of waiter and bus boy. Gillham further testified that all three prepared the work schedules of the employees in their respective classifica- tions, including days off,14 had the power to recommend that the employees in their classifications be hired or fired,15 and that Banks and Reed assigned the waiters to stations and decided when to open and close waiter stations. It is undisputed that Reed and Banks, a former employee of another restaurant operated by Gillham and his associates at Redondo Beach, California, were paid $20 per month over the rate of pay they received as waiters, while Stock was paid 25 cents per hour more than the other bus boys. The Board has held in prior decisions that the power to order supplies, such as Newton's coextensive power with the manager to order liquor, is a routine responsibility not calling for the exercise of such independent judgment as to qualify the employee with such power as a supervisor under the Act.16 The discretion to close the bar after the manager and assistant manager left for the day falls in the same category, as does the power of Banks and Reed to assign waiter stations and open and close them.17 The work scheduling assignment likewise appears routine, not involv- ing independent judgment of the type contemplated by Section 2(11) of the Act.18 As to the alleged power of the 13 The restaurant at times pertinent only opened for dinner ; the dining room was open from 5 p in. to 10 p in. on weekdays, 5 p in. to I 1 p.m on Fridays and Saturdays, and 4 p.m. to 10 p.m on Sundays The bar opened at the same starting times but normally did not close until patronage dwindled away, normally a few hours after the close of the dining room. 14 The scheduling consisted of consulting employees within the two classifications concerning their class schedules , study needs, and availabili- ty, submitting that information to Vanderford, and her preparation and posting of work schedules based on that and other information secured by or supplied to her for successive 2-week periods 15 The record fails to establish that Banks, Reed, and Stock were informed of their alleged power to recommend the hiring or firing of employees, that other employees were so informed, or that the three ever made any such recommendations Gillham's testimony that Stock dis- charged several bus boys is discredited in view of his vagueness, inability to four supposed supervisors to recommend hiring and firing, in view of the fact there is no record evidence that either the four employees or the employees they allegedly supervised knew of the existence thereof and the absence of any credible evidence of its exercise, the Examiner discredits the testimony of its existence and finds and concludes that such power and exercise was limited to the manager and assistant manager of the restaurant. In the absence of any detail evidence, the Examiner finds and concludes that any leading and directing of the work of similarly classified employees by Newton, Banks, Reed, and Stock was of a routine nature normally performed by a working leader, as in the case of Steiding. The extra pay enjoyed by Newton, Banks, Reed, Stock, and Steiding is readily attributable to the extra routine responsibilities assigned to them and their superior experience and ability. Based upon the foregoing, the Trial Examiner finds and concludes that Newton, Banks, Reed, and Stock did not possess or exercise sufficient independent judgment in the performance of their job duties to qualify as supervisors within the meaning of Section 2(11) of the Act, and are therefore included within the unit as of December 4, 1970. The Examiner therefore finally finds and concludes that on December 4, 1970 the unit consisted of the 62 employees named and classified in the preceding portion of this Decision, excluding Dodd, Verduzco, and Webster. C. The Union Majority The Company's employees initiated the Union' s organi- zation campaign, by appointment of a committee from among their number to contact the Union and set up a meeting. The requested meeting was held on December 3, 1970, at which time a substantial number of union membership applications were executed by Company employees within the unit. An undetermined number of additional union membership applications were secured by Banks and Reed 19 during the rest of that day and the following morning and delivered to the union office. In the course of the proceeding the Union submitted into evidence membership applications purporting to be signed by the following employees within the unit: Bartenders Crosby and Newton; broiler cooks Brant, Page, Schweit- zerhof, and Wright; bus boys Barber, Carlsen, B. Chism, S. Chism, W. Holloway, Jacobsen, Kula, McCarthy, Stock, and Tegnell; saladman Delmartini; hostess K. Cary; cocktail waitresses Custer, Mancini, K. Newton, Van Eijk, and Wheelwright; and waiters Banks, Beaman, D. Cary, supply any details, reference to Vanderford as the one with such knowledge, and Vanderford's failure to supply any corroboration or detail. 16 Food Store Employees Union Local 347 [Heck's Inc.] v. N LRB, 418 F 2d 1177 (C.A 9), enfg. in part 170 NLRB 178; Eckerd's Markets, Inc, 183 NLRB No. 40 17 Don the Beachcomber, 163 NLRB 275. is Cf Plastic Workers Union Local 18 [Smko Manufacturing and Tool Company] v N LR.B, 369 F.2d 226 (C.A. 7), enfg. in part 149 NLRB 201 19 In view of the Trial Examiner's finding that Banks and Reed were not supervisors on or about December 3 and 4, 1970, he finds it unnecessary to resolve the General Counsel's contention that the Union's majority was "coerced" due to the role Banks and Reed played in seeking out the Union, delivering blank applications to employees, and executing applications to the Union CATTLEMENS SADDLE AND SIRLOIN Giovannoli, Hand, Hansen, Leslie, Lomasson, Merkel, Reed, and Van Zante, a total of 34. Representatives of the Union and Banks testified the submitted applications were those secured from and executed by the Company employees whose names appear thereon either at the December 3, 1970 meeting and handed to its representatives in attendance there or, by the following day, handed to Reed or Banks and delivered by the latter to the Union. These same applications or copies thereof were submitted to the General Counsel' s investiga- tor during the course of his investigation of the charge. The General Counsel, the Charging Party, and the Company did not challenge the authenticity of the applications at any time during the course of the hearing. The Union takes the position that the General Counsel has the burden of establishing a prima facie case that the Union did not represent a majority of the Company's employees within the unit at the time it asserted its majority representative status, offered to prove same, and sought and secured recognition as their exclusive collec- tive-bargaining representative and a contract covering their rates of pay, wages, hours, and working conditions, as alleged in the complaint,20 and that the General Counsel failed to meet that burden in this case. The Union is correct; not only did the General Counsel fail to produce evidence to support the complaint allega- tion that the Union did not represent a majority of the unit employees on December 4, 1970 but also the Respondent Union and Company affirmatively and without contradic- tion produced prima facie and unrebutted proof that, on December 4, 1970, the Union's secretary-treasurer, Miss Riley, took the 34 applications secured from the Compa- ny's unit employees to a meeting with Gillham, the Company's president, and asserted that the Union repre- sented a majority of the Company's employees on the basis of those applications, which representation the Company president accepted, commenting that the Union's securing of the applications "shot him out of the saddle" with regard to any claim the Union did not represent a majority of the Company's employees within the unit,21 and the two 20 Cf Adam Goettl & Gust Goeid, d/b/a International Metal Products Co, 104 NLRB 1076, especially In 4 at 1078 21 Gillham declined the Union's offer to check the applications, explaining that he intended to let a couple of employees go and didn't want to expose himself to the charge that he let them go after and because he saw they were union adherents 87 thereupon executed the contract recognizing the Union as the exclusive collective-bargaining representative of the unit employees. On the basis of the foregoing, the Trial Examiner finds and concludes: (1) the General Counsel failed to produce any proof that the Union did not represent a majority of the employees in the unit at the time the Company and the Union signed a contract covering them, and (2) the Union and the Company presented prima facie and unrebutted proof that the Union represented a majority of the unit employees at the time the contract was signed; i.e., 34 of the 62 employees within the unit. In view of the foregoing findings and conclusions, the Trial Examiner shall recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. At all times pertinent the Company was an employer engaged in commerce in an industry affecting commerce and the Union was a labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act. 2. The General Counsel failed to meet his burden of producing prima facie evidence supporting the complaint allegation that the Union did not represent a majority of the Company's employees within a unit covered by a contract executed by the Union and the Company on December 4, 1970 at the time they executed said contract. 3. The Company did not violate Section 8(a)(1), (2), and (3) of the Act by executing the aforesaid contract. 4. The Union did not violate Section 8(b)(1) and (2) of the Act by executing the aforesaid contract. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, the Examiner issues the following recommended: 22 ORDER The complaint shall be dismissed in its entirety. 22 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order , and all objections thereto shall be deemed waived for all purposes.