Bob's Big Boy Family Restaurants

BOB'S BIG BOY FAMILY RESTAURANTS 153 Bob's Big Boy Family Restaurants, a Division of the contract-bar rules "based upon some other Marriott Corporation and Local No. 37, Bakery principle." The court also concluded that the & Confectionery Workers International Union Board had departed from its own precedent by of America, AFL-CIO. Case 31-CA-8128 considering extrinsic evidence in construing the November 3, 1981 meaning of the alleged "members only" provision of the contract under consideration here. In addi- SUPPLEMENTAL DECISION AND tion, the court found it difficult to distinguish the ORDER instant case from H. L. Klion, Inc., 148 NLRB 656 (1964), where the Board held that an ambiguous BY MEMBERS FANNING, JENKINS, AND wage increase provision was not an unlawful mem- ZIMMERMAN bers-only provision when read in the context of the On April 28, 1978, the National Labor Relations contract's union-security clause. The court also re- Board issued its Decision on Review in the under- manded this portion of the case so that the Board lying representation case in this proceeding' in could exclude extrinsic evidence, and consider its which it found that a contract between Respondent precedent, e.g., H. L. Klion, and explain why that and Bob's Employees' Association (the Associ- precedent should be disregarded if the Board ation) was not a bar to the petition filed by the wished to reach a contrary result on this issue. Charging Party (the Union) because it contained a Thereafter, the Board accepted the court's "members only" provision, and because the petition remand and notified the parties that they could file was filed in a timely fashion according to the con- statements of position with regard to the issues tract's effective date appearing on the cover page raised by the remand. The Union filed a statement of the contract distributed to employees. of position. On May 9, 1978, the impounded ballots from an Pursuant to the provisions of Section 3(b) of the election conducted on January 17, 1978, were National Labor Relations Act, as amended, the Na- opened and the tally of ballots revealed that a ma- tional Labor Relations Board has delegated its au- jority of employees voting in the election had thority in this proceeding to a three-member panel. voted for the Union. Accordingly, on May 17, The Board has reviewed the entire case in light 1978, the Union was certified as the exclusive bar- of the court's decision, which we accept as the law gaining representative of the employees in the ap- of the case, and the statement of position on propriate unit. remand, and we now enter the following findings. Commencing on or about June 7, 1978, and at all 1. In its original Decision the Board found the times thereafter, Respondent has refused to bargain contract between Respondent and the Association collectively with the Union as the exclusive bar- was not a bar to the Union's petition. The contract gaining representative, although the Union has re- between Respondent and the Association was ap- quested and is requesting it to do so. After this re- parently effective from December 11, 1974, to De- fusal to bargain, on September 29, 1978, the Board, cember 31, 1977. However, the contract distributed on the basis of an 8(a)(5) complaint and the Gener- to employees by the Association, with Respond- al Counsel's Motion for Summary Judgment, issued ent's knowledge, contained on its cover the dates an Order compelling Respondent to recognize and "January 1, 1975 to December 31, 1977." Thus, the bargain with the Union.2 petition filed by the Union on October 13, 1977, Thereafter, Respondent petitioned the United was untimely as to the dates in the text of the con- States Court of Appeals for the Ninth Circuit to set tract, but timely as to the cover dates. The Board aside the Board's Order. The General Counsel reasoned that these conflicting dates created a situ- cross-applied for enforcement of the same Order. ation from which the correct time for filing a peti- On July 28, 1980, the court denied enforcement of tion could not be determined, and stated that Re- the bargaining order and remanded the case to the spondent was "estopped" from asserting the con- Board for further consideration.3 The court found tract as a bar to the Union's petition. For the fol- that it was unable properly to review the Board's lowing reasons, we reaffirm that conclusion on finding that Respondent was "estopped" to deny remand. the election petition was timely filed because the The Board's contract-bar rules are designed to Board had not specifically indicated whether its es- balance the twin goals of employee freedom of toppel rationale was based on the theory of equita- choice and industrial stability. For example, con- ble estoppel or instead was "a new exception" to tracts may bar a representation petition for up to 3 years. 4 This contract-bar rule provides employee or 1235 NLRB 1227. '238 NLRB 700. ' See General Cable Corporation, 139 NLRB 1123 (1962), which en- '625 F.2d 850. larged the period of the basic contract-bar rule from 2 to 3 years. 259 NLRB No. 4 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union petitioners the opportunity to file petitions at tition will not be barred.s Thus, as was indicated in reasonable, identifiable times to change or eliminate Cabrillo Lanes supra, where an employer and a the employees' bargaining representative if they so union have created a situation which precludes a desire, and at the same time affords a reasonable clear determination by a potential petitioner of the period of stability for the contracting parties and proper time for filing a new petition, such a situa- employees. The Board has also provided for a tion does not stabilize labor relations. This is the "window period" during which petitions may be situation that obtains here. Based on this finding filed to be timely with respect to an existing con- the Board in the earlier proceeding concluded that tract. And when an employee, or other petitioner, the contract should not operate as a bar. We reaf- seeks to determine the proper time to file a repre- firm that finding and conclusion here. 9 sentation petition, it is axiomatic that one would 2. As to the alleged "members only" provision, look first to the existing contract between the em- we accept as the law of the case the court's finding ployer and the union to determine the appropriate that extrinsic evidence must be excluded from our dates for filing such a petition. consideration of this issue. In light of this holding, Here, Respondent and the Association signed a and the court's opinion that our previous Decision collective-bargaining agreement, an original of was inconsistent with Board precedent we must was inconsistent with Board precedent, i we must which Respondent locked in its vault. The Assoct- which Respondent locked in its vault. The conclude that the collective-bargaining agreement ation distributed copies of the contract to employ- involved here does not contain an illegal members- ees, and Respondent knew of this distribution. involved here does not contain an illegal members- However, the cover page of this contract indicated only provision. However, we still find the contract dates which differed from the effective and expira- is not a bar to the petition, for the reasons stated tion dates contained in the 29th provision at the end of the contract originally signed.6 As noted, Accordingly, we affirm our earlier Order requir- the Petitioner's representation petition was filed ing Respondent to bargain with the Union" and re- within the appropriate "window period" 7 accord- state it herein. ing to the dates stated on the front of the contract ORDER distributed by the Association, but was 2 days late under the same rule according to the effective date Pursuant to Section 10(c) of the National Labor on the inside of the contract. Relations Act, as amended, the National Labor Re- In these circumstances, we believe the contract lations Board hereby orders that the Respondent, urged by Respondent as a bar to the petition Bob's Big Boy Family Restaurants, a Division of should not operate to deny its employees the op- Marriott Corporation, Glendale, California, its offi- portunity to vote on union representation. In cers, agents, successors, and assigns, shall: answer to the court, we note that, in stating in its 1. Cease and desist from: original Decision that Respondent "should be es- (a) Refusing to bargain collectively concerning topped from asserting contract bar," the Board did rates of pay, wages, hours, and other terms and not intend to use the formal legal doctrine of conditions of employment with Local No. 37 "equitable estoppel" in denying Respondent's claim contract bar. Rather, the Board analyzed the factu- a See, e.g., Delto Company, Ltd. d/b/a Cabrillo Lanes, 202 NLRB 921 al situation presented by the conflicting dates of (1973). Compare, e.g., Thiokol Corporation, 215 NLRB 908 (1974); see, the contract which was given to the employees, generally, Union Fish Company, 156 NLRB 187 (1965). Although we do not rely on the doctrine of equitable estoppel in and concluded that barring the petition in these cir- reaching our result here, we note that the four elements necessary for in- cumstances would not effectuate the purposes of voking the doctrine-knowledge, intent, mistaken belief, and reliance- the Act. are present here. Thus, as more fully stated above, Respondent knew of the Association's circulation of the misleading document, and had a duty, Also in response to the court, we note that the with the Association, not to create an ambiguous situation or at the very Board in its Decision did not attempt to apply a least to attempt to clear up the ambiguity. The affected Union could rely ."new exception to its contract-bar rules. Rather, it only on the facts presented, which it did, believing that the petition was "new exception" to its contract-bar rules. Rather, it timely filed. sought to effectuate its rule that, where parties to a Finally, in addressing the issue raised by the reviewing court "whether contract create a situation in which a petitioner it was the attorney who detrimentally relied upon the printed contract's cover dates in determining when to file the election petition and whether cannot clearly determine the proper time for filing that reliance was reasonable," 625 F.2d at 854, we note that there is noth- a petition, the ambiguity does not inure to the ing in the record to indicate that the attorney saw any contract prior to benefit of the parties but instead means that the pe- his iling the petition, or that the attorney did other than ministerially file the petition on instructions of the Union as appears from the face of the petition. In any event, it is not the Union's right per se to file a petition See Leonard Wholesale Meats, Inc., 136 NLRB 1000 (1962), modifying that is at issue. The paramount concern is with employee rights. Deluxe Metal Furniture Company, 121 NLRB 995 (1958). ' H. L. Klion, supra. In that case, the Board found that an ambiguous s The "original" contract locked in Respondent's vault did not contain wage provision of a contract, when read in the context of the union-secu- the "cover page" of the contract distributed to employees. rity provision, was not an unlawful provision. See fn. 5, above. " 238 NLRB at 702-703. BOB'S BIG BOY FAMILY RESTAURANTS 155 Bakery & Confectionery Workers International tract-bar purposes. '3 Like my colleagues I accept Union of America, AFL-CIO, as the exclusive bar- as the law of the case the reviewing court's finding gaining representative of its employees in the fol- that the health benefits provision at issue here is lowing appropriate unit: not on its face an invalid members-only clause. All production and maintenance employees However, as before, I cannot agree with the major- employed by Respondent at its facilities locat- ity's conclusion that, in any event, the dates on the ed at 830 Sonora Avenue, Glendale, Califor- cover of the contract circulated to employees cre- nia, and 611 Sonora Avenue, Glendale, Cali- ated such confusion that the contract could not op- fornia, excluding all other employees, truck- erate as a bar to the Union's petition under our drivers, office clerical employees, professional contract-bar rules. employees, guards and supervisors as defined It has long been Board law that, when contracts in the Act. of more than 3 years' duration are involved, the date to measure the appropriate time for filing a (b) In any like or related manner interfering petition is from the third anniversary of the start of with, restraining, or coercing employees in the ex- the contract." The effective date of the contract ercise of the rights guaranteed them in Section 7 of here-December 11, 1974-can be readily ascer- the Act. tained from the body of the contract. Thus, in clear 2. Take the following affirmative action which language embodied in a substantive provision the the Board finds will effectuate the policies of the agreement sets forth the date on which it was Act: signed and its duration. This provision and the date (a) Upon request, bargain with the above-named of signing are not buried away in the middle of the labor organization as the exclusive representative contract; rather they appear at the end of the con- of all employees in the aforesaid appropriate unit tract near the signature page. It stretches the imagi- with respect to rates of pay, wages, hours, and nation to believe that anyone receiving a copy of other terms and conditions of employment, and, if such a contract could not peruse its contents and an understanding is reached, embody such under- quickly locate the operative dates. ' The contract standing in a signed agreement. does not create confusion; it is precise in its terms. (b) Post at its facilities at 830 Sonora Avenue, Accordingly, I would find it to bar the Union's pe- Glendale, California, and 611 Sonora Avenue, tition, and would dismiss the complaint.'6 Glendale, California, copies of the attached notice marked "Appendix."' 2 Copies of said notice, on " See 235 NLRB at 1228, fn. 11. forms provided by the Regional Director for " General Cable Corporation, 139 NLRB 1123 (1962); Union Carbide 3. . ,, ,,. . . , , ~~~~~Corporation, 190 NLRB 191 (1971). Region 31, after being duly signed by Respondent's Is I cannot understand how the majority's explanation about the representative, shall be posted by Respondent im- Union's attorney's involvement in this case justifies a different result. If mediately upon receipt thereof, and be maintained the attorney read the contract, he should have seen the controlling provi- sion. If information were conveyed to him over the phone or by other by it for 60 consecutive days thereafter, in con- method, he should have asked what the date of signing was. spicuous places, including all places where notices " Cabrillo Lanes supra, extensively relied on by the majority, is factu- to employees are customarily posted. Reasonable ally dissimilar. In Cabrillo Lanes, two contracts, each purportedly agreed to by the employer and the union, were in evidence, but each contained a steps shall be taken by Respondent to insure that different termination provision. In such circumstances, the Board proper- said notices are not altered, defaced, or covered by ly held that such a difference "created a situation which precludes a clear any other material. determination by a potential petitioner of the proper time for filing a new petition." 202 NLRB at 923. Here, we do not have to determine which of (c) Notify the Regional Director for Region 31, two contracts is controlling. Rather, the agreement containing the alleged in writing, within 20 days from the date of this confusing cover dates contains the same contractual provisions as the one signed by Respondent and the Association. A clear determination as to Order, what steps have been taken to comply here- when to file a petition could be made simply by reading the contract. with. APPENDIX MEMBER JENKINS, dissenting: I concurred in the Board's original Decision on NOTICE To EMPLOYEES Review in the representation case in this proceed- POSTED BY ORDER OF THE ing solely on the basis that the contract between NATIONAL LABOR RELATIONS BOARD Respondent and the Association included a mem- An Agenc of the United States Government bers-only provision which invalidated it for con- WE WILL NOT refuse to bargain collectively " In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by concerning rates of pay, wages, hours, and Order of the National Labor Relations Board" shall read "Posted Pursu- other terms and conditions of employment ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." with Local No. 37, Bakery & Confectionery 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Workers International Union of America, is reached, embody such understanding in a AFL-CIO, as the exclusive representative of signed agreement. The bargaining unit is: the employees in the bargaining unit described All production and maintenance employees below. employed at our facilities located at 830 WE WILL NOT in any like or related manner Sonora Avenue, Glendale, California, and interfere with, restrain, or coerce our employ- 611 Sonora Avenue, Glendale, California, ees in the exercise of the rights guaranteed excluding all other employees, truckdrivers, them by Section 7 of the Act. office clerical employees, professional em- WE WILL, upon request, bargain with the ployees, guards and supervisors as defined in above-named Union, as the exclusive repre- the Act. sentative of all employees in the bargaining unit described below, with respect to rates of BOB'S BIG BOY FAMILY RESTAU- pay, wages, hours, and other terms and condi- RANTS, A DIVISION OF MARRIOTT tions of employment, and, if an understanding CORPORATION