Eugene's

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eugene's and Hotel, Motel, Restaurant Employees and Bartenders Union, Local 86, Hotel and Restaurant Employees and Bartenders Internation- al Union, AFL-CIO Eugene's, Inc., a Subsidiary of Federal Coal Company and Hotel, Motel, Restaurant Employees and Bartenders Union, Local 86, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Cases 20-CA-9803, 20-CA-9853, 20- CA-9869, 20-CA-9897, 20-CA-9905, and 20- CA-11530 September 26, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On May 10, 1977, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the Respondents and the General Counsel filed exceptions and supporting briefs. 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, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 3 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, as modified below, and hereby orders that the Respon- dent, Eugene's, Inc., a Subsidiary of Federal Coal Company, Reno, Nevada, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order, as so modified: 1. Substitute the following for paragraph 1: "1. Cease and desist from: "(a) Failing and refusing to recognize and bargain in good faith with the Union as the exclusive collective-bargaining representative of its employees in the following unit: "All employees employed by the Corporation in its bar and culinary operations at Reno, Nevada, excluding all other employees, guards and super- visors as defined in the Act. 232 NLRB No. 61 "(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. I The Respondents have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We find it unnecessary to pass on the General Counsel's contention that the sum of $24,000, representing the amount received for "disposable inventory," should be included in the gross revenues of Eugene's, Respondent partnership, during the period December 1, 1974, through December 3, 1975; we would assert jurisdiction, in any case, for the reasons stated by the Administrative Law Judge. I In par. I of his recommended Order, the Administrative Law Judge inadvertently omitted the narrow cease-and-desist language. "in any like or related manner," which the Board traditionally provides in cases involving 8(a)(I) and (5) conduct. Accordingly, we shall modify the recommended Order. We shall also modify the posting notice to reflect the entire recommended Order. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT continue in our failure and refusal to bargain in good faith with Hotel, Motel, Restaurant Employees and Bartenders Union, Local 86, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive representative for collective-bargain- ing purposes of our employees in the following unit: All employees employed by us in our bar and culinary operations at Reno, Nevada, excluding all other employees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL recognize and, upon request, bargain in good faith with the Union concerning the rates of pay, wages, hours, and working conditions of our employees in the above unit and, if an agreement is reached, WE WILL reduce it to writing and sign it. EUGENE'S, INC., A SUBSIDIARY OF FEDERAL COAL COMPANY 366 EUGENE'S DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On January 4, 5, and 6, 1977, 1 conducted a hearing at Reno, Nevada, to hear issues raised by a consolidated, amended complaint issued on October 3, 1975, against the Partner- ship1 and a complaint issued on August 31, 1976, against the Corporation. The original charge in Case 20-CA-9803 was filed by Hotel, Motel, Restaurant Employees & Bartenders Union Local 86, Hotel & Restaurant Employ- ees & Bartenders Union, AFL-CIO, 2 against the Partner- ship and a number of other respondents on December 16, 1974. It was amended seven times, i.e., on December 18, 26, and 31, 1974; January 3 and 6, 1975; May 9, 1975; and June 2, 1975. The charge in Case 20-CA-9853 was filed by the Union against the Partnership and other respondents on January 10, 1975. The charge in Case 20-CA-9869 was filed by the Union against the Partnership and other respondents on January 16, 1975. The charge in Case 20- CA-9897 was filed by the Union against the Partnership and other respondents on January 23, 1975. The charge in Case 20-CA-9905 was filed by the Union against the Partnership and other respondents on January 27, 1975. The charge in Case 20-CA-11530 was filed by the Union against the Corporation on June 1, 1976. The Regional Office issued a consolidated complaint on August 27, 1975, versus the Partnership and other respondents in the numbered cases above other than Case 20-CA-11530. On September 18, 1975, the cases against the Partnership were severed for hearing purposes from the cases against the other respondents. On October 3, 1975, an amended complaint consolidating all the numbered cases other than Case 20-CA-11530 was issued against the Partnership. On August 31, 1976, the Regional Office issued a complaint against the Corporation. On October 27, 1975, Attorney Wertz filed an answer to the complaint against the Partnership and on October 14, 1976, Wertz filed an answer to the complaint against the Corporation. The October 3, 1975, complaint alleged that the Partner- ship since December 13, 1974, has violated Section 8(aXl) and (5) of the National Labor Relations Act, as amended (hereafter called the Act), by failing or refusing to comply with the Union's request to bargain collectively with the Union as the representative of a majority of its employees within an appropriate unit. That complaint also asserted that the Partnership during the previous calendar year (1974) received gross revenues in excess of $500,000 and purchased and received goods and materials valued in excess of $ 10,000 from outside of Nevada. The October 27, 1975, answer to that complaint denied that the Partnership received service of the charges, 3 denied it received gross revenues and made purchases in the amounts recited, denied it was in or affected commerce, denied the Union I Prior to December 3, 1975, Walter Zahnd, Raymond Capitaine, and Rene Jacquemain, a partnership, operated Eugene's restaurant, a restaurant and bar in Reno. Nevada; shortly prior to December 3, 1975, Federal Coal Company, a West Virginia corporation, caused a Nevada corporation to be formed named Eugene's, Inc. which corporation purchased the restaurant and bar from the three partners. Hereafter the owners of the restaurant prior to December 3. 1975, shall be called the Partnership and the purchasing corporation shall be called the Corporation. It is undisputed and I find at all was a labor organization, denied the Partnership was covered by a series of contracts between the Reno Employers Council and the Union to and including February 15, 1975, denied the appropriateness of the unit set forth in the complaint, denied at appropriate times the Union represented a majority of its employees within such unit, denied the Union requested collective bargaining on behalf of the unit employees, and denied it failed or refused to comply with the Union's request for bargaining. The August 31, 1976, complaint alleged the Corporation was a successor to the Partnership, that it was aware of the pending unfair labor practice charges against the Partner- ship when it purchased Eugene's, and that the Corporation failed or refused to comply with the Union's request to bargain collectively with the Union as the representative of a majority of its employees within an appropriate unit. That complaint also alleged during the 12 months preced- ing December 1, 1975, the Partnership received gross revenues exceeding $500,000 and purchased and received goods valued in excess of $10,000 from outside Nevada, and that during the calendar year 1976 the Corporation would receive gross revenues exceeding $500,000 and purchase and receive goods and services valued in excess of $10,000 from outside Nevada. The October 14. 1976, answer to that complaint denied service of the charge, 4 denied the Partnership was covered by a series of contracts between the Reno Employers Council and the Union with the last such contract expiring February 15, 1975, denied the Corporation was a successor to the Partnership as the owner and operator of Eugene's restaurant and bar, denied the Corporation knew of the pending unfair labor practice charges against the Partnership when it purchased Eu- gene's, denied the Partnership received over $500,000 in gross revenues in the 12 months preceding December 1, 1975, denied the Corporation would receive gross revenues in excess of $500,000 in 1976, denied the Corporation was in or affected commerce, denied the Partnership was in or affected commerce, denied that Jack, Thomas, and Paul Hamlin were supervisors and agents of the Corporation acting on its behalf at pertinent times, denied that Raymond Capitaine was a supervisor and agent of the Corporation acting on its behalf at times pertinent, denied the appropriateness of the unit, denied the Union repre- sented a majority of the employees within the unit at times material, denied the Union requested recognition and bargaining of the Corporation, and denied the Corporation refused to recognize and bargain with the Union at its request. The Regional Office issued an order on September 1. 1976, consolidating the complaints against the Partnership and the Corporation recited heretofore for purposes of hearing and determination. times pertinent the three partners were supervisors and agents of the Partnership acting on its behalf. 2 Hereafter called the Union. I Inasmuch as Zahnd testified he received copies of the charges in the regular course of business. I find they were received by the Partnership on the dates alleged in the October 3, 1975. complaint. 4 I find the charge was served on the Corporation on the date alleged in the August 31, 1976, complaint, as T. Hamlin indicated knowledge of it. 367 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the outset of the hearing the parties stipulated that the Partnership received gross revenues in excess of $500,000 during the calendar year 1974; 5 the Partnership purchased goods and services from outside of Nevada valued in excess of $10,000 during the calendar year 1974; the Partnership purchased goods and services from outside Nevada valued in excess of $10,000 during the 12 months preceding December 1, 1975; the Corporation purchased goods and services from outside Nevada valued in excess of $10,000 during the calendar year 1976; the Union was a labor organization within the meaning of the Act; the Partnership was covered by a series of contracts between the Reno Employers Council and the Union from 1962 through February 15, 1975; and Jack, Thomas, and Paul Hamlin were supervisors and agents of the Corporation acting on its behalf at times pertinent. The issues remaining for determination are: 1. Whether certain portions of the Partnership's gross revenues for 1974 should be excluded for jurisdictional purposes. 2. Whether the Partnership received gross revenues in excess of $500,000 during the 12 months preceding December 1, 1975. 3. Whether the Corporation received gross revenues in excess of $500,000 in the calendar year 1976. 4. Whether Board jurisdiction may or should be asserted over the Partnership and the Corporation. 5. The appropriateness of the bargaining unit set forth in the two complaints and the Union's representative status therein. 6. Whether the Union requested the Partnership to bargain collectively and the Partnership failed or refused to comply with that request. 7. Whether the Corporation was a successor to the Partnership. 8. Whether the Corporation had notice of the pending unfair labor practice charges against the Partnership when it purchased Eugene's. 9. Whether Raymond Capitaine was a supervisor and agent of the Corporation acting on its behalf at times pertinent. 10. Whether the Union requested the Corporation to bargain collectively and the Corporation failed or refused to comply with that request. 11. Whether the Partnership and the Corporation violated Section 8 (a)(I) and (5) of the Act. The parties appeared by counsel at the hearing and were afforded full opportunity to produce evidence, to examine and cross-examine witnesses, to argue, and to file briefs. Briefs have been received from the General Counsel, the Partnership, and the Corporation. Based upon my review of the entire record, observation of the witnesses, perusal of the briefs, and research, I enter the following: I But contend certain portions of those revenues should be excluded in computing their gross income for jurisdictional purposes, which would result in gross income less than $500,000. FINDINGS OF FACT 1. JURISDICTION As noted heretofore the parties stipulated that the Partnership purchased goods and services from outside Nevada valued in excess of $10,000 during calendar year 1974, that the Partnership purchased goods and services from outside Nevada valued in excess of $10,000 during the period December 1, 1974, through November 30, 1975, and that the Corporation purchased goods and services from outside Nevada valued in excess of $10,000 during the calendar year 1976. The parties further stipulated that the Partnership received gross revenues in excess of $500,000 during the calendar year 1974.6 The record discloses the Corporation's gross revenues for the calendar year 1976 totaled $463,652 and that the restaurant and bar was closed for the month of October 1976. Dividing the gross figure for the 11 months of operations by 11 indicates an average monthly revenue over the 11 months of operations of $42,150. Adding the latter figure to the actual revenues for the 11 months of operations yields a total for the year, had the restaurant and bar been in operation continuously, of $505,802. The Partnership tax return filed by the Partnership for the calendar year 1975 discloses gross revenues over the 11- month, 3-day period of the Partnership operation of the restaurant and bar during 1975 (January I - December 3, 1975) of $475,897. The ledger reflecting the Partnership's operations during the calendar year 1974 discloses during the month of December 1974 that the Partnership received revenues of $38,162. Adding these two figures together reflects total revenues to the Partnership for the 12-month, 3-day period extending from December 1, 1974, to December 3, 1975, of $514,059. It is undisputed on June 30, 1974, the Partnership ceased to provide catering services for United Airlines which, during the 6 months extending from January I to June 30, 1974, produced gross revenues of approximately $100,000. The Partnership's records reflect that over the year 1974 the credit card companies with whom it did business subtracted $7,445 in discounts from the amounts submitted by the Partnership charged for food and liquor purchases by its customers on their credit cards. Neither the Partnership nor the Corporation has resumed the catering service operations. The Partnership argues that the nonrecurring income from the United Airlines catering service in 1974 ($100,000) and the credit card discount ($7,445) should be subtracted from its gross revenues in calendar year 1974 for the purpose of computing whether or not the Partnership meets the Board's jurisdictional standards for retail establishments. It argues since the $100,000 catering income for that year is a nonrecurring income, it should not be used in calculating the jurisdictional amount for purposes of this case. The Partnership also argues that the credit card discounts should be calculated in because the Partnership never received the moneys in question, which 6 The Partnership's gross revenues during the calendar year 1974 totaled S598,772. 368 EUGENE'S were deducted prior to remission from the credit card companies for food and beverages purchased at the restaurant. I reject both contentions; certainly the Partnership's actual gross receipts for the year 1974 included the approximately $100,000 received on the United Airlines catering contract and did not dilute the income for that calendar year; as to the latter, it was obviously a cost of doing business, that is, the restaurant and bar permitted its customers to charge their purchases of food and liquor to encourage their patronage and thus the resulting charges the credit companies levied against the restaurant on receiving the bills were anticipated costs of doing business, that is, an expense of doing business. I therefore find and conclude that for the calendar year 1974 the Partnership satisfied the Board's jurisdictional standards for retail establishments both as to legal jurisdiction (buying more than $10,000 in goods and services from outside the State of Nevada) and its discretionary standard (over $500,000 in gross receipts). The record reflects during the period December 1, 1974 to December 3, 1975, credit card discounts of $8,327 showed on the Partnership books. The Partnership claimed that gross revenues over that period also include the sum of $24,600 it received from the Corporation for disposable inventory.7 Accepting the Partnership's evaluation of the value of the disposable assets and its inclusion in the gross receipts figure reduces the Partnership's gross receipts from operations figure below $500,000 for the 12-month, 3-day period (to $489,459). I again reject the contention the credit card discounts should be utilized to further reduce the gross receipt figure for the period in question, for reasons stated heretofore. The Corporation argues its gross receipts for 1976 for its 11 months of operations ($463,652) should be reduced by $8,000, the value of its credit card discounts for the calendar year. I reject that position for the reasons stated above. The Corporation further contends an interpolated figure should not be added in for the month of October 1976 on the ground its current management consultant advocates a policy of closing I month each year as a future practice. It is undisputed that the October 1976 closing was utilized for extensive renovations and remodeling of the restaurant and bar, which will not normally constitute grounds for failing to interpolate a figure for such time in arriving at anticipated gross receipts for an entire calendar year. I reject the Corporation's position concerning this matter on the ground its future conduct is problematical at best. I therefore find and conclude for the calendar year 1976 the Corporation met both the Board's legal standard for asserting jurisdiction (purchase of over $10,000 in goods and services from outside Nevada) and its discretionary 7 Liquor, food, napkins, etc., on hand at time of sale. The amount the Partnership received from the Corporation for purchase of furniture. fixtures. dishes. silverware, etc., while it appeared in the Partnership income tax return for 1975. was not included in the gross receipts figure of 475, 897. T'he alleged value of the disposable inventor) ($24,600) allegedly included within the gross receipts figure was estimated by the Partnership: no records were produced to substantiate the $24,600 figure or prove it was included within Ihe gross receipts figure. standard for retail institutions (gross revenues in excess of $500,000). Under the circumstances of this case, I do not find the fact that the Partnership may have received gross revenues during the period December 1, 1974 to December 3, 1975, approximately $11,000 under the $500,000 discretionary standard as sufficient ground for declining to exercise jurisdiction over both the Partnership and the Corporation in this case. Certainly the gross revenues of the Partnership for calendar year 1974 and the gross revenues of the Corporation for calendar year 1976 exceeded the discre- tionary standard; the standard for the exercise of legal jurisdiction has been met for all three periods; thus the small drop, if the disposable inventory value figure is accepted, in gross revenues for 1975 appears a temporary drop insufficient to warrant the declination of jurisdiction in this case. Based on the foregoing, I find and conclude at all times pertinent both the Partnership and the Corporation were employers engaged in commerce in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. LABOR ORGANIZATION The two complaints alleged, the parties stipulated, and I find at all times pertinent the Union was a labor organization within the meaning of Section 2(5) of the Act. 11I. THE PARTNERSHIP-THE UNIT, UNION REPRESENTATIVE STATUS, AND REFUSAL-TO-BARGAIN ISSUES When the Partnership commenced business in 1962, it joined the Reno Employers Council and became a party to a series of collective-bargaining agreements between the Council and the Union covering the bar and culinary employees employed by the Partnership and other mem- bers of the Council in the Reno-Tahoe-Sparks area. The last such agreement expired on February 15, 1975. On November 15, 1974, the Union sent letters to the Council, the Partnership, and other members of the Council requesting bargaining over the terms of an agreement supplanting the expiring February 15, 1975, agreement. In a familiar pattern of response, 8 on December 12, 1974, the Partnership sent a letter to the Council withdrawing authority from that organization to further represent it for collective-bargaining purposes and, on the same date, sent a letter to the Union notifying the Union of that withdrawal and its termination of the expiring agreement. The Partnership made no response to a second (Decem- ber 13, 1974) letter from the Union reiterating its request for a meeting to bargain out the terms of a contract to succeed the expiring agreement. I Cf. Tahoe Nuggell, Inc. 227 NLRB 357 (1976); Nevada Lodge, 227 NLRB 368 (1976); Barne's Club, Incorporated, 227 NLRB 414 (1976): Carda Motels, Inc., d b/a Holiday Hotel & Casino, 228 NLRB 926 (1977)}: Silver Spur Casino, 228 NLRB 1147 (1977). Pioneer Inn, Asociatles, d' ba Pioneer Inn and Pioneer Inn Casino 228 NLRB 1263 (1977). 369 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zahnd testified the Partnership refrained from respond- ing to the Union's repeated requests for bargaining because he doubted the Union represented a majority of the Partnership's bar and culinary employees, reciting the same litany chanted by his fellow council members (see the preceding footnote) as grounds for his alleged doubt, i.e., (1) that he read two newspaper articles published in late August 1974 wherein the Union's chief representative bewailed the extent of organization within the Union's jurisdiction in the Reno-Tahoe-Sparks area, complained wages and benefits paid to employees within the Union's jurisdiction in that area were far below the standards prevailing in Las Vegas, and declared the Union's determi- nation to better both its membership in the area and their wages and benefits; (2) that two employees 9 told him they signed up with the Union in the course of its August 1974 organizational drive with the expectation the Union would improve their wages and benefits but later decided they had wasted their time and money and dropped out and that he heard two other employees 10 say they were satisfied with their wages and conditions; (3) that he saw the employee who collected dues for the Union collect only from two or three employees; (4) that no grievances were filed by the Union against the Partnership; " (5) that the employees never had an opportunity either to choose or reject union representation; and (6) that the Council- Union contracts did not contain any union-security provision.a The Board has held consistently (see the cases recited in fn. 8) that it will presume that the Partnership lawfully recognized the Union in 1962 as the representative of a majority of its bar and culinary employees when it became a party to the then current Council-Union agreement and further presume that such majority representative status continued through the terms of the successive agreements thereafter through the agreement expiring February 15, 1975, unless such presumptions are rebutted by affirmative evidence sufficient to support a finding the Union did not represent a majority of the unit employees at the time it requested bargaining for a new contract or affirmative evidence sufficient to support a finding the employer possessed a good-faith belief based upon objective, factual evidence that the Union did not represent a majority of the unit employees at the time the employer failed or refused to comply with the Union's request for bargaining for a new contract. 13 The Partnership made no effort to prove that the Union did not represent a majority of its employees within the unit it recognized under the agreements either at the time the Union requested bargaining for a new agreement or at the time Zahnd decided to refrain from complying with that request. Thus, the Partnership's attempt to rebut the presumption the Union represented a majority of its employees in the contract unit was grounded solely upon the contentions advanced by Zahnd in his testimony. 9 Waiters Leon Hernandez and Uwe Nicolai. '° Ernest Phillips and Michael Cevantes. n At the same time stating the Partnership complied with all the terms of the successive contracts. 2 Nevada is a right-to-work State, which bars such agreements. ':' See cases cited in fn. 8 and Komatz Construction, Inc. v. N. L.. R.B., 458 F.2d 317 (C.A. 8, 1972); N.LR.B. v. Frick Company, 423 F.2d 1327 (C.A. 3, Those contentions fail to satisfy the criteria recited above; i.e., objective, factual proof sufficient to justify Zahnd's alleged doubt of the Union's continued majority represen- tative status. Reason 1, the newspaper articles, makes no mention of the Union's representative status among the Partnership's unit employees and, by Zahnd's own testimo- ny, the Union's August 1974 organizational effort among the Partnership's employees enjoyed considerable success. Reason 2, Hernandez' and Nicolai's August 1974 com- ments they joined the Union in the course of the August 1974 organizational drive and later dropped out and Phillips' and Cevantes' comments about the same time that they were satisfied with conditions at the restaurant are remote in time to the date of Zahnd's declination to bargain, are ambiguous with regard to the question of whether the employees in question nevertheless supported the Union in its announced campaign to better their wages and working conditions in bargaining for a new contract to supplant the agreement expiring on February 15, 1975 and, in any event, fail to prove that a majority of the Partnership's employees within the unit did not support the Union at the time (December 1974) the Union requested bargaining and Zahnd decided to refrain from compliance with that request. It is further noted that statements made by employees to their employer at a time a union organizational campaign is in progress are somewhat suspect as to whether they reveal the true sentiments of the employees concerning their union sentiments. Turning next to reason 3, Zahnd's observation of union dues collection in the restaurant from only two or three employees is inconclusive; many employees may choose to pay their dues to the collector off the premises, they may bring or mail such dues directly to the Union's office, or they may support the Union even though not paying dues (as earlier noted, Nevada, as a State with a right-to-work statute, prohibits any contractual requirement that employ- ees join or pay dues to a union except on a voluntary basis). As to reason 4, Zahnd conceded the Partnership complied with all the terms of the Council-Union agree- ment, so there was no basis for any grievances. As to reason 5, the absence of any poll to determine employee sentiment, it is presumed the Union represented a majority of the unit employees when the Partnership recognized the Union as their exclusive collective-bargaining representa- tive in 1962 and continued such recognition in succeeding contracts through 1975.14 In any event, this is not proof of objective facts justifying a refusal to bargain. Reason 6 is irrelevant as well; the Nevada statute barring union- security agreements prohibits any agreement between the Union and the Partnership conditioning employment on union membership, so the absence of such agreement has no significance.' 5 A seventh reason noted in the briefs, heavy employee turnover, does not warrant consideration inasmuch as Zahnd did not testify he placed any reliance on this factor in reaching his decision to refrain from 1970); N.L. R.B. v. Master Touch Dental Laboratories, Inc., 405 F.2d 80 (C.A. 2, 1968). 14 Bartenders, Hotel, Morel and Restaurant Employers Bargaining Associa- tion of Pocatello, Idaho, 213 NLRB 651 (1974). i5 Wald Transfer & Storage Co. and Westheimer Transfer & Storage Co, Inc., 218 NLRB 592 (1975). 370 EUGENE'S bargaining with the Union at its request. In any event, this is not determinative; it is presumed changes in employee complement do not change the degree of union support within the unit in the absence of evidence to the contrary.'6 On the basis of the foregoing I find (as did the Board in the series of cases involving other casino, bar, and restaurant operators and the Union decided to date-see fn. 8) that the grounds cited by the Partnership for its alleged doubt of the Union's majority representative status in the unit were subjective in nature and insufficient to rebut the presumptions created by the Partnership's original (1962) recognition of the Union as the exclusive collective-bargaining representative of its bar and culinary employees and continued recognition thereafter through the expiration of the February 15, 1975, agreement. I therefore find and conclude: All employees employed by the Partnership in its bar and culinary operations at Reno, Nevada, excluding all other employees, guards and supervisors as defined in the Act, constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act.' 7 I further find and conclude that, inasmuch as the Partnership failed to rebut the presumption arising from the agreement then in effect between the Council and the Union wherein the Partnership recognized the Union as the representative of a majority of its employees within the above unit, both at the time (November 15, 1974) the Union requested bargaining for a new contract and the time (December 12, 1974) the Partnership decided to refrain from complying with that request, the Union represented a majority of the Partnership's employees within the unit. Based on the foregoing, I find and conclude the Partnership violated Section 8(a)(1) and (5) of the Act by its failure or refusal to comply with the Union's request for bargaining over the terms of an agreement to supplant the contract expiring February 15, 1975. IV. THE CORPORATION-THE SUCCESSORSHIP AND NOTICE ISSUES; CAPITAINE'S STATUS While the Corporation assumed control and operation of Eugene's restaurant on December 3, 1975, there was no interruption of the business. In fact, two of the partners (Raymond Capitaine and Rene Jacquemain) continued in their customary role in charge of the kitchen, as employees of the Corporation, after their December 3, 1975, sale of their partnership interest to the Corporation (Zahnd acted as maitre d'hotel and bar manager during the Partnership's operation of the business). There was no change in the name of the restaurant and bar, no change in the employee complement, no change in the furnishings, fixtures, or 16 Strange & Lindsey Beverages, Inc., and Dr. Pepper Bottling Co., Inc., Joint Emplorers d bra Pepsi-Cola-Dr. Pepper Bottling Co., 219 NLRB 1200 (1975). '7 Since such unit has been recognized as appropnate by the Partnership in successive agreements extending from 1962 through 1975. Cf. Pioneer Inn, supra, Morand Brothers Beverage (Co., 91 NLRB 409 (1950); N.LR.B. v. Detective Intelligence Service, Inc., 448 F.2d 1022 (C.A. 9. 1971). I8 N.L.RB. v. The William J. Burns International Detective Agenc)i Inc.. 406 U.S 272 (1972). operations of the restaurant and bar and only a substitute in management (the three Hamlins-Jack, Thomas, and Paul-assumed management and control of operations). Under the circumstances, it is clear the Corporation was the Partnership's successor for purposes of the /. .' Zahnd testified without contradiction that he was the managing partner in the Partnership, i.e., that he, in addition to running the dining room and bar operations. also handled the business details, while Capitaine and Jacquemain ran the kitchen. He acknowledged that he received copies of the various charges, the various amendments thereto, the original consolidated complaint against the Partnership and other respondents, the amend- ed complaint solely against the Partnership, etc., and kept the papers in manila envelopes on the premises of the restaurant and bar. Zahnd testified that, either on the day the business changed hands (December 3, 1975) or shortly before that date, he gave the manila envelopes containing the documents described above to Dan Hamlin, an admitted supervisor and agent of the Corporation, stating the envelopes contained the details of an ongoing dispute with the Union and requesting Hamlin to contact him if he had any questions about the contents of the envelopes.' While Capitaine was somewhat evasive in his testimony, 20 in essence he confirmed a statement in his pretrail affidavit that he also advised Jack Hamlin, an admitted agent and supervisor of the Corporation, in either October or November 1975, that a charge filed by the Union against the Partnership was pending before the NLRB. His testimony to that effect is credited. It is additionally noted that Capitaine, who as one of the partners clearly was conversant with the unfair labor practice proceedings against the Partnership, stayed on in the Corporation's employ from December 3, 1975, through May 1976. While the Corporation denies Capitaine was a supervisor and agent of the Corporation during this period whose knowledge may be imputed to the Corporation, I find to the contrary. Capitaine's testimony, that during the period in question he acted as head chef of the restaurant operation, was in charge of the kitchen operations and personnel, and hired dishwashers, was supplemented and corroborated by Tom Hamlin, an admitted supervisor and agent of the Corporation. Hamlin testified Capitaine was a supervisor, that he directed the work of the kitchen employees, that he hired and terminated kitchen employees or effectively recommended such hire or termination, and that he ordered food, prepared work schedules, etc. On the basis of the above-recited testimony, which I credit, I find that Capitaine between December 3, 1975, and May 1976 was a supervisor and agent of the Corporation acting on its behalf and that his knowledge of the unfair labor practice proceeding against the Partnership pending before the NLRB may be imputed to the Corporation. 19 I do not credit Dan Hamlin's denial of this exchange. Zahnd impressed me as a credible witness. 20 Undoubtedly due to counsel for the Corporation's repeated represen- tations he nsked legal liability under the sales contract for so testifying in view of a provision in that contract wherein the partners represented there were no outstanding legal claims pending against them at the time of sale. 371 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the foregoing, I find and conclude the Corporation had notice of the instant unfair labor practice proceeding against the Partnership pending before the NLRB V. Ili. CORPORATION -- THE UNIT, UNION REPRESENTAI'IVE SIATUS, ANI) REFUSAL TO BARGAIN ISSUES The Unlion made its first overtures to secure contract negotai.;ors with the Corporation in January 1976, a month after the Corporation assumed operation of the restaurant Jack Seaver, the Union's organizing director, went to the restaurant with Union Business Agent Marie Tidwell. 2' Tidwell introduced Seaver to Tom Hamlin. Seaver 1told Hamlin the Union had a contract with the previou.: owners and asked for a date Hamlin could meet with Bud Tucker, his superior, to discuss the situation. Hamlin replied they had recently assumed operation of the restaurant and would like a few weeks to get settled. Seaver and Tidwell left without further conversation. A few weeks later Seaver and Tucker went to the restaurant. Seaver introduced Tucker to T. Hamlin. Tucker stated the Union had a contract with the previous owners and would like to renegotiate it rather than pursue legal action, he suggested that he bring Hamlin a contract proposal for him to look over. Hamlin replied he was willing to look over anything. In early February 1976 Seaver and Tucker again stopped by the restaurant and gave 'r. Hamlin a proposed agreement. In April 1976 Tucker was replaced by Howard Lawrence as director of the Union's Reno operations.2 2 In early May, Seaver and Lawrence visited Eugene's. Seaver introduced Lawrence to T. Hamlin and informed Hamlin he was Tucker's replacement. Lawrence advised Hamlin the Union was scheduled to participate in a series of NLRB hearings, including one against Eugene's, and he would like to see their differences settled amicably rather than by litigation; that it was the Union's position it represented the Corporation's bar and culinary employees and the Corporation was obligated to bargain with the Union over a contract covering them. Lawrence stated the Union was prepared to be flexible in negotiations and willing to discuss anything. T. Hamlin stated he wanted to think about the matter and consult with his brother, Dan Hamlin. Lawrence and Seaver then left. On June 1, 1976, the Union filed its charge against the Corporation. Shortly thereafter Seaver and Lawrence again approached T. Hamlin at the restaurant. Lawrence asked Hamlin if they were going to be able to get together. Hamlin asked them to wait a moment, left, and returned with D. Hamlin. T. Hamlin then stated he had nothing to discuss with Lawrence since the Union had filed a charge against the Corporation and requested that Lawrence make any further contact with Clinton Knolls. 23 e~ Tidwell was formerly employed at Eugene's as a cashier; part of her duties fior the t nion was to service its members employed at Eugene's restaurant and bar, 22 Lawrence pre iously headed the Union's Tahoe office and operations; in April, he was placed in charge of both the Reno and Tahoe offices and operations 21 Knolls is in charge of the Reno Employers Council. -z The sole evidence adduced by the Corporation to rebut such No further contacts between the Union and the Corpora- tion have occurred. The Corporation's attack upon the appropriateness of the unit and the Union's representative status therein was based upon the applicability of the presumption of continued union majority status within a unit consisting of the Partnership's bar and culinary employees after the Partnership's withdrawal from the multiemployer unit represented by the Council. Inasmuch as the Corporation continued the same bar and culinary workers the Partnership employed prior to the change in ownership of Eugene's bar and restaurant and I have entered findings that unit was appropriate for collective-bargaining purposes, I find the same unit, i.e., a unit consisting of: All employees employed by the Corporation in its bar and culinary operations at Reno, Nevada, excluding all other employees, guards and supervisors as defined in the Act, has been appropriate for collective-bargaining purposes within the meaning of the Act since December 3, 1975, the date the Corporation assumed ownership, control, and operation of the restaurant and bar. I further find, in the absence of evidence sufficient to rebut the presumption noted heretofore that the Union continued to represent a majority of the employees within that unit since the expiration of the February 15, 1975, contract, 24 the Union has represented a majority of the Corporation's employees within the aforesaid unit at all times subsequent to December 15, 1975. In view of the foregoing, I find and conclude by T. Hamlin's failure and refusal to bargain with the Union at Lawrence's request concerning the rates of pay, wages, hours, and working conditions of the unit employees that the Corporation violated Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. At all pertinent times the Partnership and the Corporation were employers engaged in commerce in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. At all pertinent times the Union was a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by the Partnership and by the Corporation in their bar and culinary operations at Reno, Nevada, excluding all other employees, guards, and supervisors as defined in the Act, constituted and consti- tutes a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act. 4. At all times pertinent the Union has represented a majority of the employees of the Partnership and the Corporation within the aforesaid unit. presumption was T. Hamlin's testimony Seaver stated in the course of the second May 1976 conversation between Lawrence, Seaver, and T. Hamlin that the Union could not win an election among the employees. I do not credit that testimony, as it is incredible Seaver would undermine the whole purpose of the interview and the Union's position vis-a-vis the Corporation. Seaver was a sophisticated union representative and fully cognizant with the facts and laws. 372 EUGENE'S 5. At times pertinent Capitaine was a supervisor and agent of the Corporation acting on its behalf. 6. The Corporation was a successor to the Partnership within the meaning of the Act and took ownership with knowledge of the instant unfair labor practice charges pending before the National Labor Relations Board against the Partnership. 7. By failing and refusing to bargain with the Union at its request concerning the rates of pay, wages, hours, and working conditions of the employees within the aforemen- tioned unit, the Partnership and the Corporation violated Section 8(a)( ) and (5) of the Act. 8. The above unfair labor practices affected commerce within the meaning of the Act. THE REMEDY Having found that both the Partnership and its succes- sor, the Corporation, violated the Act by their refusals to bargain with the Union at its request concerning the wages, etc., of the unit employees, I shall recommend that the latter cease and desist therefrom and take affirmative action designed to remedy the unfair labor practice. The affirmative action in question shall be to recognize the Union as the exclusive collective-bargaining represen- tative of its bar and culinary employees and to meet and bargain with the Union at its request concerning their rates of pay, wages, hours, and working conditions and, if an agreement is reached, reduce it to writing and sign it, and post notices to its employees so stating. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: 25 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, 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. ORDER 25 The Respondent, Eugene's, Inc., a Subsidiary of Federal Coal Company, Reno, Nevada, and the Corporation, their officers, agents, successors, and assigns, shall: I. Cease and desist from failing and refusing to recognize and bargain in good faith with the Union as the exclusive collective-bargaining representative of its em- ployees in the following unit: All employees employed by the Corporation in its bar and culinary operations at Reno, Nevada, excluding all other employees, guards and supervisors as defined in the Act. 2. Take the following affirmative action designed to effectuate the purposes of the Act: (a) Recognize and, upon request, bargain in good faith with the Union concerning the wages, rates of pay, hours, and working conditions of the employees in the above unit and, if an agreement is reached, reduce it to writing and sign it. (b) Post at its Reno, Nevada, facility copies of the attached notice marked "Appendix." 26 Copies of said notice, on forms provided by the Regional Director for Region 20, after being signed by an authorized representa- tive of the Corporation, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Corporation to insure that the notices are not defaced, altered, or covered by other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Corporation has taken to comply with the Order. 26 In the event that the Board's Order is enforced by a Judgment of a 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 Appeais Enforcing an Order of the National Labor Relations Board." 373