Steak and Brew of Merrick

STEAK AND BREW OF MERRICK 783 Longchamps, Inc and its Wholly Owned Subsidiary S & B Rest of Merrick, Inc, d/b/a Steak and Brew of Merrick and Kathryn Friedman and Local 650, Chain Restaurant Employees Union, Hotel and Restaurant Employees and Bartenders Internation- al Union, AFL-CIO, Party to the Contract Case 29-CA-2781 December 6, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 26, 1972, Administrative Law Judge' Paul E Weil issued the attached Decision in this proceed- ing Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in opposition 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 authority in this proceeding to a three-member panel The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order Umon, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, hereinaf- ter called Local 650, at a time when Local 650 did not represent an uncoerced majority of employees in the unit covered by the contract Thereafter, Miss Friedman filed an amended charge containing the same allegations and including an allegation that the contract contained a union- security clause, thereby additionally constituting a viola- tion of Section 8(a)(3) of the Act On May 24, 1972, the Regional Director of Region 29 of the Board issued a complaint alleging that Longchamps, Inc and its Wholly Owned Subsidiary S & B Rest of Merrick, Inc, d/b/a Steak and Brew of Merrick, hereinafter called Respondent, violated 8(a)(1), (2), and (3) of the Act by various acts and conduct as alleged in the charges On June 9, 1972, the said Regional Director issued an order amending the complaint by naming Local 650 as a Party to the Contract and a party to the proceeding On June 19, 1972, the Respondent answered denying substantially all of the allegations of the complaint The Party to the Contract filed no pleading On the issues thus joined the matter came on for hearing before me on June 26, 1972 All parties appeared or were represented by counsel All parties had an opportunity to call witnesses, adduce relevant and material evidence, to argue on the record, and to file briefs The parties waived oral argument Briefs have been received from the General Counsel and from Local 650 Upon the entire record and in consideration of the briefs, I make the following FINDINGS OF FACT 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 Administrative Law Judge and hereby orders that Respondent, Longchamps, Inc and its Wholly Owned Subsidiary S & B Rest of Merrick, Inc, d/b/a Steak and Brew of Merrick, New York, its agents, successors, and assigns, shall take the action set forth in the said recommended Order i The title of Trial Examiner was changed to Administrative Law Judge effective August 19 1972 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E WEIL, Trial Examiner On March 6, 1972, Kathryn Friedman, an employee, filed a charge with the Regional Director of Region 29 of the National Labor Relations Board, hereinafter called the Board, alleging that Steak and Brew of Merrick violated Section 8(a)(1) and (2) of the Act by interrogation of employees concerning their union activities and by recognizing and maintaining a contract with Local 650, Chain Restaurant Employees I THE BUSINESS OF RESPONDENT At the time of the occurrences herein, Longchamps, Inc , owned all of the stock of S & B Rest of Merrick, Inc, which operated a restaurant in Merrick, known as Steak and Brew of Merrick Longchamps, Inc, at this time, was admittedly engaged in interstate commerce within the Board's jurisdictional requirements After the incidents occurring herein, Longchamps transferred its stock in S & B Rest of Merrick, Inc, to a corporation known as Steak and Brew, Inc, of which Longchamps owns approximately 80 percent, and which operates a substantial number of similar restaurants in New York State and other 'States I find that at all times relevant hereto the Respondent was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Local 650 is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES In April i Arthur Haaker, the director of personnel of Longchamps, Inc, was in Merrick, New York, interviewing prospective employees for a restaurant to be known as Steak and Brew, which was being established by Respon- i All dates hereinafter are in the year 1971 unless otherwise specified 200 NLRB No 113 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent in a site that had been occupied 3 or 4 months prior thereto by another restaurant, "The Flaming Pit " Two unnamed individuals presented themselves to him and stated that they represented the Union, and that they had a previous contract with the former owners of the premises, and would like to represent Respondent's employees Haaker answered that he would work out an agreement with them if they did represent the employees but that he had no employees at the time 2 Louis J Ippolitto testified that he was assigned to sign up employees at the Merrick Steak and Brew He first went near the employees in July or August and left cards on the premises Somewhere around August 8, 9, or 10, he went to the restaurant and spoke to Manager Mazzarella and asked for recognition He had approximately 30 cards which he handed to Mazzarella Mazzarella flipped through the cards and went into a back room, came out in 5 or 10 minutes and said he had no authority to bargain with a union and advised Ippolitto to contact Longchamps, Inc, in New York Ippolitto reported this conversation to the International Administrator of the Local, Frank Pries, and had no further contact with the situation Ippolitto testified that he knew most of the people who had signed those cards to be persons who were employed at Merrick Steak and Brew and that to the best of his knowledge the 30 persons were employed, during the week he demanded recognition, in the food and beverage area and in the kitchens Personnel Director Haaker testified that at some time in August Mr Pries, whom he thought to be the president of Local 650, told him by telephone that the Union represent- ed the employees at Merrick and wanted to bargain for them Haaker accepted Pries' word that the Union represented the employees and subsequently entered into negotiations and signed the contract on November 1 which contract contains a union-security clause He testified that he had no doubt of the truth of Pries' claim to representa- tive status because it is not uncommon in his industry that "where there is a prior contract on the premises that when you reopen the premises that that union approach you as a representative of the employees on that premises ," and that he had no reason to disbelieve the claim Haaker testified that he did not hire the same people that had been employed by the previous restaurant, and that the premises were closed for 3 or 4 months between the two However, he thought that it is possible that some of the employees might have worked for the predecessor enterprise A week or two before Thanksgiving, Manager Mazzarel- la announced that there was going to be a meeting on the day before Thanksgiving at which all employees in the unit must be in attendance, and that the employees were to meet with the Union and were required to join the Union Mazzarella also stated that failure to attend the meeting would be cause for discharge The Union did not show up, although all of the employees were there At about the same time some of the employees signed cards with Retail, Wholesale & Department Store Workers' Union, Local 88 A few days after the abortive meeting announced by Mazzarella, and after the employees had signed cards with Local 88 , Haaker came to the restaurant and had a conversation with the Charging Party He asked what the problem was and why the employees had joined Local 88 Miss Friedman said that she believed that the contract that Respondent had signed with Local 650 was invalid because none of the employees had ever heard about it or seen it Miss Friedman testified that Hanker answered that he knew the contract was invalid, but that he would not recognize Local 88 and if the employees continued to press the matter, they would find themselves on the picket line and he would run the place with nonumon people On April 22, 1972, another employee meeting was held It was attended by Ippolitto and Pries, and the district supervisor for Steak and Brew The employees were required at that time to sign cards and were given an opportunity to ask questions about the contract which Respondent had entered into with Local 650 Apparently neither Pries nor the district supervisor was familiar with the contract According to Miss Freedman's testimony, the employees asked various basic questions concerning, for instance, whether busboys could have a break during the night for their own meals, and whether the waitresses and waiters were to get any raise in pay as result of the contract In each instance the district manager and Pries had to search through the contract to find answers for the employees The alleged contract was placed in evidence and appears to be a mimeographed form contract with the name of the employer and its address typed on a different typewriter Similarly, the date of the agreement and the expiration date are typed in The rates of the various classifications are contained on a separate schedule and the specific figures are typed in The name of the employer is not entered on the signature page A signature appears in the place apparently designated for that purpose , which is the same signature that appears on a rider relating to the Presidential Executive Order of August 15, 1971 Neither signature is legible, but it can be seen that it is not that of Mr Haaker Local 650 stipulated with the General Counsel that on November 1, of the 52 employees in the unit , only 10 had signed cards for Local 650, 42 had not Discussion and Conclusions The General Counsel contends that Respondent violated Section 8(a)(2) by entering into a contract with Local 650 at a time when it did not represent a majority of the employees It is clear that on November 1 Local 650 was not a majority representative, but rather had fewer than one-fifth of the employees signed up Local 650, however, contends that at the time of recognition it represented 30 employees_ out of an employee complement of 45 or 50, and that under the Board's rule in Keller Plastics Eastern, Inc, 157 NLRB 583, the parties had a right to rely on the continuing representative status of the lawfully recognized union for a reasonable amount of time while negotiating 2 There are certain unprobabildies in the account of Haaker inasmuch as Local 650 was first chartered May 1 1971 STEAK AND BREW OF MERRICK 785 their contract Local 650 contends that the 10 weeks that elapsed herein was a reasonable period of time The General Counsel advances various arguments why the Keller Plastics rule is mapplicable to the instant proceedings In the first place, the General Counsel points out that in Keller Plastics, as in most of the cases that follow it, the evidence reveals that the bargaining status was established as a result of the voluntary recognition of the majority representative In the instant case it is undisputed that the voluntary recognition was granted by Respondent on Local 650's bald assertion that it had a majority and on Haaker's belief that it had represented a predecessor employer, which, in fact, could not have been so since Local 650 apparently did not come into existence until after the date on which Haaker first claims to have met with its agents The testimony of Ippolitto does not suffice to show that Local 650 at any time represented a majority of the employees Neither Ippohtto nor Haaker attempted to testify to any specific dates on which any of the actions prior to the execution of the contract took place Although the evidence was clearly within the control of Local 650, the 30 cards allegedly signed by employees in July or August were not offered by Local 650 or by Respondent, nor indeed were they even brought to the hearing Similarly, Respondent was not prepared to show that Local 650 at any time had a majority It did not supply payroll lists for any period other than those subpenaed for the period surrounding November 1 by the General Counsel Local 650 contends that its lack of majority on November 1 is attributable to the high turnover of employees There is no reason to believe that the high turnover of employees all took place during the period when the parties were allegedly negotiating a form contract It is more probable, in my opinion, that the turnover was higher at the beginning of the enterprise than later, and a greater amount of the turnover took place in July and August than in September and October, but this is mere conjecture The cards were allegedly signed in the last week in July or the first week of August Recognition was allegedly granted somewhere in early or mid-August No party produced Mazzarella, the manager who allegedly looked at the cards, and thus there is no evidence of what, if anything, he found or whether he, in fact, checked the cards against the payroll The General Counsel points out that the Keller rule is, in effect, an affirmative defense raised by Respondent and Local 650, the general rule being that 8(a)(2) is violated by entering into a contract with a minority union 3 The party alleging an affirmative defense must support it with evidence, and it can scarcely be said that the evidence produced by Local 650 and the Respondent shows affirmatively that Local 650 ever represented a majority of the employees Accordingly, there is no evidence that the recognition was valid, and the Keller rule applicable Nor is the argument of Respondent that it negotiated in good- faith reliance on the Union's clarm of majority sufficient to carry the burden of showing that recognition was valid The rationale expressed by Haaker, as shown above, is invalid, and it would appear that a man in his position dealing with many units, all represented by unions, would have been aware of the fact that a union claiming to represent chain restaurant employees was a newcomer to the field and could not have represented the predecessor Furthermore, Haaker testified that he had no reason to believe that he had hired any substantial number of his predecessor's employees In fact, this was not a successorship case , there was a lapse of 3 or 4 months and a completely new hiring procedure If any employees who had worked for the Flaming Pit ended up working for Respondent, it was coincidence I find under the Bernhard Altmann rule that Respondent violated Section 8(a)(1) and (2) of the Act by entering into a contract with Local 650 as the representative of its employees at a time when Local 650 represented fewer than one-fifth of its employees in the recognized unit It follows that as the General Counsel contends, by the imposition of the union-security clause on the employees, and the requirement that they join Local 650, Respondent violated Section 8(a)(3) and (2) of the Act Respondent's actions in this regard, as the Board stated in Keller Plastics, would be valid if the contract were valid, but having found that the contract was not valid, I must find that the actions violate Section 8(a)(3) and (2) Similarly, I find that Respondent violated Section 8(a)(1) by the actions of its supervisor, Mazzarella, in requiring employees under threat of discharge, to attend a union meeting on November 24, even though the union meeting did not take place That no employee was able to testify that the meeting was supposed to be with Local 650 is immaterial It is clear and stipulated that the employees were required to attend the meeting, and it is undemed that the manager informed them that their failure to do so would be cause for discharge Inasmuch as no union at that time was party to a valid contract with Respondent requiring union membership, Respondent' s actions in this regard violated Section 8(a)(2) and (1) of the Act, and I so find Finally, the General Counsel contends that various of Respondent's officers, including Hanker, threatened em- ployees if they became or remained members of Local 88, and if they gave any assistance and support to it The evidence in support of this allegation was the language attributed to Haaker by Miss Friedman in his conversation shortly after Thanksgiving Haaker denied any threats to Miss Friedman on this occasion Haaker stated that Miss Friedman told him that Local 650 was not the representa- tive of the employees, but that Local 88 was, and that he asked her what Local 88 was He then told her that he had a contract with Local 650 and understood that it represented the employees He did not specifically deny the language attributed to him by Miss Friedman, to the effect that he warned her that if the employees followed Local 88 out on strike for recognition, they would be replaced but I do not believe that he stated that he would run the restaurant nonunion as she testified I believe his testimony that it is no part of Longchamps' policy to attempt to fight unions among its employees, and that all but one of the restaurants over which he exercised his supervision had 3 International Ladies Garment Workers Union AFL-CIO [Bernhard Altmann l v NLRB 366 U S 731 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union contracts I do not find this statement by Haaker is coercive, in the manner which gave rise to the decision in Kellwood Company, 4 relied on by the General Counsel I believe that Respondent's attitude in this proceeding is as near to neutrality as its contractual status with Local 650 permits, and that Haaker did not imply or mean to imply that adherence to Local 88 would be detrimental to the employees' interests 5 Accordingly, I recommend that this allegation of Section 8(a)(1) be dismissed IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof V THE REMEDY Having found that Respondent entered into a contract with Local 650 at a time when Local 650 did not represent a majority of its employees, and thereafter continued in effect and enforced the union-security provisions of the contract by requiring employees to join Local 650, Respondent has violated Section 8(a)(3), (2), and (1) of the Act In order to effectuate the policies of the Act, I shall recommend that Respondent withdraw and withhold recognition of Local 650 as the collective-bargaining representative of its employees, and cease giving effect to said collective-bargaining agreement I recommend that Respondent reimburse all of its employees for moneys paid by or withheld from them after November 1, 1971, for initiation fees, dues, or other obligations of membership in Local 650 In accordance with the Board's decision in Isis Plumbing & Heating Co, 138 NLRB 716, interest should be included in such reimbursements, such interest should be computed in the manner set forth in Seafarers' Internation- al Union, 138 NLRB 1142 CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local 650, Chain Restaurant Employees' Union, Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 By continuing since November 1, 1971, to recognize Local 650 and by continuing to give effect to a collective- bargaining agreement with that union, which contained, inter aba, provisions for union-security and dues checkoff, Respondent has assisted and supported a labor organiza- tion and thereby has engaged in and is engaging in unfair 4 Kellwood Company Ottenheimer Division, 178 NLRB 20 5 It may be noted that Local 88 on November 29 filed a petition for an election among Respondents employees The petition was thereafter withdrawn by Local 88 after the intervention of the AFL-CIO s no-raid apparatus 6 In the event no exceptions are filed as provided by Sec 102 46 of the labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act 4 By requiring its employees to attend union meetings and to join the Union under the threat of discharge, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act On the basis of the foregoing findings of fact and conclusions of law and on the entire record in this case and pursuant to Section 10(b) of the Act, I hereby issue the following recommended 6 ORDER Respondent, Longchamps, Inc, and its Wholly Owned Subsidiary S & B Rest of Memck, Inc, d/b/a Steak and Brew of Merrick, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Giving effect to its contract dated November 1, 1971, or any modifications, extensions or renewals thereof or any other contract, agreement, or understanding entered into with Local 650, Chain Restaurant Employees Union, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or any other successor thereto relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until such labor organization shall be certified by the National Labor Relations Board as the exclusive represent- ative of Respondent's employees, provided, however, that nothing in this order shall be construed to require the Respondent to vary or abandon any wages, hours, seniority, or other substantive features of its relations with its employees which Respondent has established in the performance of said contract or to prejudice the assertion by employees of any rights they may have thereunder (b) Recognizing Local 650 or any successor thereto as representative of any of its employees for the purpose of collective bargaining unless or until said labor organization shall have been certified by the National Labor Relations Board as the exclusive bargaining representative of such employees (c) Forcing or requiring its employees to attend meetings of or to join Local 650 or take part in any activities thereof, or permitting its supervisors and agents to attend or participate in meetings of Local 650 (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action which will effectuate the policies of the Act (a) Reimburse all of its employees, former and present, for moneys paid by or withheld from them on or after November 1, 1971, for initiation fees, dues, or other obligations of membership in Local 650, Chain Restaurant Rules and Regulations of the National Labor Relations Board the findings, conclusions 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 STEAK AND BREW OF MERRICK Employees Union, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, together with interest thereon at the rate of 6 percent per annum in the manner set forth in the section of this Decision entitled "The Remedy " (b) Withdraw or withhold recognition from said Local 650 or any successor labor organization as the representa- tive of Respondent's employees for the purpose of collective bargaining unless and until said labor organiza- tion shall have been certified by the National Labor Relations Board as the exclusive representative of such employees (c) Post at its restaurant in Merrick, New York, copies of the attached notice marked "Appendix " 7 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representative of the Respondent, shall be posted immedi- ately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith 8 I In the event that the Board s Order is enforced by a Judgment of the United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 8 In the event that this recommended Order is adopted by the Board after exceptions have been filed this provision shall be modified to read Notify the Regional Director for Region 29 in writing within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has 787 ordered us to post this notice and we intend to carry out the Order of the Board and abide by the following The Act gives all employees these rights To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights WE WILL cease giving effect to our contract with Local 650, Chain Restaurant Employees Union, Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO WE WILL cease recognizing Local 650 and withdraw and withhold recognition from it as your representative for collective bargaining WE WILL reimburse all our employees, former and present, for all initiation fees, dues, or other obligations of membership paid by them to Local 650, together with interest at 6 percent per annum Dated By LONGCHAMPS, INC AND ITS WHOLLY OWNED SUBSIDIARY S & B REST OF MERRICK, INC D/B/A STEAK AND BREW OF MERRICK (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concern- mg this notice or compliance with its provisions may be directed to the Board's Office, 16 Court Street-Fourth Floor, Brooklyn, New York 11201, Telephone 212-596-3535