Gregory's Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gregory's Inc. and Local 17, Hotel, Motel, Restau- rant, Bar and Club Employees Union, AFL-CIO. Case 18-CA-5716 May 30, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On January 26, 1979, Administrative Law Judge Robert E. Mullin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and arguments in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Gregory's Inc., its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Ad- ministrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT withdraw recognition from, or fail and refuse to bargain in good faith with Lo- cal 17, Hotel, Motel, Restaurant, Bar and Club Employees Union, AFL-CIO, while that Union is lawfully entitled to recognition as the bargain- .ilg representative of the following appropriate bargaining unit of our employees: All employees employed by Gregory's Inc. at its Minneapolis, Minnesota, facility, including cooks, waiters, waitresses, captains, busboys, busgirls, hostesses, checkroom employees, cashiers, food checkers and dining room and service employees, but excluding office cleri- cals, managerial employees, guards and super- visors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. WE WILL, upon request, bargain collectively with the aforesaid Union as the exclusive repre- sentative of the employees in the appropriate unit, and, if an understanding is reached, em- body such understanding in a signed contract. GREGORY'S INC. DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Administrative Law Judge: This case was heard on June 14, 1978, in Minneapolis, Minne- sota, pursuant to a charge duly filed and served,' and a complaint issued on April 24, 1978. The complaint presents questions as to whether Respondent violated Section 8(a)(l) and (5) of the National Labor Relations Act, as amended. In its answer, duly filed, Respofident conceded certain facts with respect to its business operations, but it denied all alle- gations that it had committed any unfair labor practices. At the hearing, all parties were represented. All were given full opportunity to examine and cross-examine wit- nesses, and to file briefs. A motion to dismiss, made by Respondent at the close of the hearing, is disposed of as appears hereinafter in this Decision. The parties waived oral argument. On July 18, 1978, briefs were submitted by the General Counsel and Respondent. Upon the entire record in the case, including the briefs of the counsel, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Minnesota corporation, maintains its prin- cipal office and place of business in Minneapolis, Minne- sota, where it is engaged in the operation of a large restau- rant where it sells food and beverages. During the last full year period prior to issuance of the complaint, Respondent had a gross revenue from its restaurant operations in excess of $500,000. During that same period, Respondent pur- chased supplies valued in excess of $50,000, of which amount goods End materials valued in excess of $50,000 were either transported and delivered to its facility in Min- neapolis directly from points outside the State of Minne- I The charge was filed on February 22. 1978. 242 NLRB No. 104 644 GREGORY'S INC. sota, or were transported and delivered to said facility from other enterprises in the State of Minnesota, each of which had received such goods and materials directly from points located outside the State of Minnesota. Upon the foregoing facts, Respondent concedes, and it is now found, that Greg- ory's Inc., is engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Local 17, Hotel, Motel, Restaurant, Bar and Club Em- ployees Union, AFL-CIO, herein Local 17, or Union, is a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events Respondent and Local 17, or its predecessor organiza- tions,' have had bargaining relations extending back to the fall of 1963 when Harriet Long, who was then president of Respondent, signed the first collective-bargaining agree- ment. At that time Respondent was known as Ranch House, In September 1976 the corporate title was changed to the name which appears in the caption of this case. In about 1970, Long's son. Gregory, became active in the management of the restaurant and in July 1977 he became president of Respondent. His mother remained on the board as vice-president and consultant. Although there is now at least one other stockholder in the corporation, Har- riet and Gregory Long hold a majority and controlling in- terest in the business. Respondent concedes that from 1963 and until Septem- ber 30, 1974, it had collective-bargaining relations with Lo- cal 17. Its contracts in those years were negotiated orginally by an employers' trade association made up of restaurant owners and on-sale liquor dealers in Minneapolis and Hen- nepin County (herein Association). Gregory's was not a member of the latter organization. However, in each in- stance, and until 1974, after negotiations for a new contract were completed by the Association, Respondent very shortly thereafter signed the agreement which the Union and the employer group had reached. Respondent contends that after September 30, 1974, when the last signed agree- ment with the Union expired, it had no further contract with Local 17. The General Counsel, however, contends that subsequent to the latter date Respondent adopted and abided by all provisions in the 1974 to 1977 agreement. In a letter dated July 25, 1977, the Union sent Respon- dent a notice that the collective-bargaining contract would expire on September 30,3 and requested that Respondent meet with it for the purposes of egotiating a new agree- ' In 1963, the employee representative, and signatory to the contract, was Local Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union (herein Local Joint Board). The latter was composed of Locals 152. 458. and 665. In April 1975, these three locals, all based in Minneapolis, merged with two separate locals in St. Paul. Since that time, the successor organization has been known as Local 17. the Charging Party herein. All dates hereinafter are for the year 1977 unless specifically noted other- wise. ment. The Union received no response to this letter. On several occasions during the month of November and De- cember. Beverly L.eegard, business representative for Local 17, contacted both Harriet and Gregory Long to request that they sign the new agreement which the Association had negotiated with the Union, or bargain as to its applica- tion to Respondent's personnel. Respondent concedes that since November 1977, the Union has requested that it bar- gain, but that it has refused to do so. The General Counsel contends that Respondent's conduct constitutes a violation of Section 8(a)(5) and (). This is denied by GregorN's ac- cording to whom the Union did not meet the statutory re- quirement that it have a majority within the appropriate unit at any time in question. B. The Appropriate Unit The General Counsel alleged, Respondent conceded and it is now found that an appropriate collective-bargaining unit at Gregory's Restaurant, within the meaning of Section 9(b) of the Act, is described below: All employees employed by Gregory's at its Minne- apolis, Minnesota facility, including cooks. waiters, waitresses, captains, busboys. busgirls, hostesses, checkroom employees, cashiers, food checkers and din- ing room and service employees. excluding office cleri- cals, managerial employees, guards and supervisors as defined in the Act. C. The Issue as to Whether the Union and the Respondent were Parties to a Collective-Bargaining Agreement from October 1, 1974 to September 30. /177 At the hearing Respondent denied that any contractual obligation existed between it and the Union from 1974 to 1977 because it had not participated in the negotiations for such a contract and did not execute a copy of the industry- wide agreement for that period. While conceding that Re- spondent is correct as to these last two factors, the General Counsel contends that during the 3-year span in question Respondent pursued a course of conduct which constituted recognition of the Union's majority status and adoption of the industry-wide agreement. It was Respondent's custom from 1963 to 1974 to sign each of the industry-wide agreements, although it had not participated in any of the negotiations. In accord with this practice, President Long acknowledged that after he be- came active in Respondent's management he signed the 1971-74 industry-wide contract, although he had partici- pated in none of the bargaining sessions. After the 1974-77 agreement had been executed by the Union and the Associ- ation, business agent F. R. Frawley, who had been active in the negotiations and in the representation of the Gregory employees, discussed the new contract on several occasions with President Long. Frawley credibly testified that these conversations were held after Aprl 1975 and that in each instance, when he suggested that Gregory Long sign the new agreement, Long's only comment was "We'll get around to it," or "Later." or "Some other time." There was substantial evidence in the record that by its conduct during the 3-year period that began on October 1, 645 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1974, Respondent continued to recognize Local 17 as its employees' bargaining agent and that it applied the terms and conditions of the new industry-wide agreement which had been negotiated by the Association. President Long ac- knowledged that Respondent paid the wages specified in the 1974 77 industry-wide agreement, and that it imple- mented all wage increases specified therein. Respondent also adhered to the contractual provisions which required that throughout its term the Employer pay into the Union's health and welfare fund and also pay the insurance costs which were assessed against it. At one point in his testi- mony President Long seemed to indicate that Respondent paid for these fringe benefits only for the older employees on the payroll during the 1974-77 period. Later, however, on further cross-examination he acknowledged that such payments were made for new employees as well. There was also testimony and documentation as to cer- tain grievances which employees had during the period in question and which Respondent handled in accordance with the procedures established by the contract. Thus, in a letter dated January 6, 1975, Judy Perron, an assistant man- ager, notified business agent Beverly Leegard that employee Jeanne Wheaton had been given a warning notice for habit- ual tardiness. Then, on March 24, 1975, Martha Stolzfus, another assistant manager for Respondent, notified Lee- gard, in writing, that employee Wheaton had received her second and final warning for neglect of duties. In another instance, in a grievance dated October 3, 1977, employee Ruth M. Lindgren complained that she had been unfairly terminated from her job as a waitress. Leegard testified, credibly and without contradiction, as to having received notification of the warning letters and also having received a copy of Lindgren's grievance. She also testified, with re- spect to the latter, that she had discussions concerning Lindgren with both Gregory and Harriet Long in October 1977 and subsequent to the time that the grievance was filed. Lastly, at some point during the term of the 1974 77 contract, one Hoffman, a cook employed at Respondent's restaurant, complained to the Union that he had been shorted some pay. President Long testified that the Union's president. Robert D. Norgren, and Douglas Wright, an- other official of Local 17, contacted him with respect to this grievance. Long acknowledged that the difficulty arose be- cause of what he described as "an error in bookkeeping" and not because of any assumption on his part that Re- spondent was not bound by the contractual rate. Respon- dent's president testified that the complaint was quickly re- solved when the union representatives called it to his attention and he rectified the mistake. Finally, in October 1977. both Gregory and Harriet Long met with Lloyd A. MacAloon, a labor relations consultant. According to the latter, Respondent's officials sought his advice as to what coulC be done about employees who did not want to remain in the Union as a condition of employment. This action in itself was indicative that even at that time in October 1977, Respondent was continuing to recognize the Union as the majority representative for its employees. The Board has held, in deciding whether an employer and a union have agreed upon a contract, that it is not bound by the technical rules of contract law. Lozano Enter- prises v. N.L.R.B., 327 F.2d 814, 817 818 (9th Cir. 1964). In John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 550 (1964), the Supreme Court held that a collective-bargaining agreement is not governed by the same common law con- cepts which govern private contracts, nor is it an ordinary agreement comparable to the one for the purchase of goods and services. Here, Respondent's continued adherence to the provisions in the contract on wages and pay raises, as well as those on the Union's health and welfare fund, on insurance benefits and on the checkoff of union dues, along with its continued utilization of the Union in the settlement of grievances "demonstrate the existence of a continuing relationship between Respondent and the Union." Manor Research, Inc., 165 NLRB 909 (1967). On the basis of the findings set forth above, it is now found that Respondent's course of conduct between October 1974 and October 1977, along with the Employer's failure to repudiate the contract prior to the latter date, manifested Respondent's assent to be bound by the collective-bargaining agreement which the Association had negotiated. On no other basis can Respon- dent's frequent contacts with the Union, as set out above, be explained. Consequently, it is now found that a 3-year collective-bargaining agreement existed between Respon- dent and the Union from 1974 to 1977. Urban N. Patman, Inc., 197 NLRB 1222, 1227 (1972), enfd. sub nomine Provi- sion House Workers Union, Local 274 AFL-CIO v. N.L.R.B., 493 F.2d 1249 (9th Cir. 1974); Hurting Sash and Door Company, 151 NLRB 470, 474 (1965), enforced as to this point, 362 F.2d 217, 218 (4th Cir. 1966). D. The Issue as to Whether the Union had a Majoriy at the Time of its Request to Bargain As found earlier, the Union made its first demand on Respondent in a letter dated July 25, 1977, to which the Employer made no response. Thereafter, in November and December, business agent Leegard visited the restaurant on several occasions to ask President Long when he would be available to meet for the purpose of executing the new con- tract. Leegard testified, credibly and without contradiction, that during her visit to the restaurant shortly before Thanksgiving, Gregory Long declined to meet at that time with the comment "I'm too busy right now. I'm going to be out of town. Could you see me after the holidays?" Leegard acknowledged that she accepted Long's suggestion at that time. After Thanksgiving, she made several additional calls to Long's office, but was unable to contact him. Finally, during the first week in December, she was unsuccessful in reaching Long via the telephone. She then asked when it would be possible to meet with him either to sign the new contract or at least, to sit down and negotiate. His response to this inquiry was "No, not now, I'm too busy, if at all." When she questioned him as to what he meant by the last remark, he merely repeated the words "if at all" and termi- nated the conversation. Thereafter, in a letter dated Decem- ber 16, 1977, Local 17 wrote to President Long restating the claim to represent his employees and asking that he meet within the next 10 days to commence negotiations. Respon- dent never made any response to this communication. Lee- gard credibly testified that in none of her conversations with Respondent's officials in the fall of 1977 did either 646 GREGORY'S INC. President Long, or his mother, assert any belief that Local 17 did not represent a majority of its employees.4 Respondent now defends its refusal to bargain with the Union on the ground that it had a reasonable doubt that Local 17 any longer represented a majority of its employ- ees. It is well settled that a union, whether certified or vol- untarily recognized, enjoys a presumption of majority sta- tus after the expiration of its contract with an employer. Terrell Machine Company, 173 NLRB 1480, 1481 (1969), enfd. 427 F.2d 1088 (4th Cir. 1970). cert. denied 398 U.S. 929 (1970). This presumption is, of course, rebuttable, and Respondent contends that legitimate factors caused it to conclude that the Union no longer represented a majority. To these contentions we will now turn. 1. The RM petition In January 1978 Respondent filed an RM petition. Greg- ory's Inc., Case 18-RM-1012. This was later dismissed by the Regional Director. At the hearing Respondent sought to establish that although the petition was not filed until January 1978, it had taken the initial steps to press for such an election the preceding fall. Thus, it called as a witness, Lloyd A. MacAloon, a labor relations consultant with whom the Longs conferred in October 1977, as to filing such a petition. MacAloon testified that the decision to ini- tiate this action had been made in the fall and that the actual filing of the petition had been delayed solely because of his personal illness which intervened before he could ac- complish this mission. This testimony, of course, was prof- fered to bolster Respondent's assertion that the Union was lacking in majority support. The filing of such a petition, however, is irrelevant to the question as to whether the Union had a majority at the time in question, for the Board has held that filing an RM petition is no more than a self- serving assertion and has no evidentiary weight. Cavalier Division of Seeburg Corporation, and Cavalier Corporation, 192 NLRB 290, 291 (1971), enforced as to this point, 476 F.2d 868 (C.A.D.C., 1973). Massey-Ferguson, Inc.. 184 NLRB 640, 641 (1970), enfd. 514 F.2d 894 (D.C. Cir. 1975). 2. The RD petition In April 1978, an employee of Respondent filed an RD petition. Gregory's Inc., Case 18-RD-861. This was also dismissed. The General Counsel contends, correctly, that the filing of such a petition in April 1978 is not relevant to a determination as to Respondent's good-faith doubt on the majority issue in the fall of 1977. Since Respondent's re- fusal to bargain occurred in the fall of the latter year, the principal issue is whether, during the period from October to December, when the Union sought to bargain with the Employer, the latter had any reasonable basis for conclud- ing that Local 17 no longer represented a majority of em- ployees in the appropriate unit. Bartenders, Hotel, Motel and Restaurant Employers Bargaining Association of Poca- tello, Idaho, 213 NLRB 651, 652, (1974); Gultmont Hotel ' In its brief Respondent argues that in 1963 Respondent never requested proof of majorit) from the Union and that, as a result, no presumption of majority can flow from such recognition as may have been accorded the Union either then or subsequent to that time. This argument is without merit as being untimely and belatedly raised. Company, 362 F.2d 588, 589 (5th Cir. 1966). Obviousl an RD petition filed 5 to 6 months later has no relevance to a decision on that question. 3. The allegation that the Union had become inactive Respondent also asserts that it had reason to doubt the Union's majority because the representatives of the latter were inactive during the period 1974-77. There is no basis for this contention. As found earlier herein, there were a number of occasions during the period in question when employee complaints resulted in the intervention of union representatives or business agents. President Long himself testified about an instance when Norgren, vice-president of Local 17, and another union agent, met with him about the complaint of Hoffman, the cook. Even more significantly. on October 3, 1977, and the same month that Respondent allegedly began to formulate a good-faith doubt about the Union's majority, employee Lindgren filed a formal griev- ance which led to a discussion between Gregory Long and Business Agent Leegard. Moreover. Business Agent Fraw- ley testified, credibly and without contradiction, that he vis- ited Respondent's restaurant about once a month from 1974 to July 1977, that in the course of these visitat ons he met with the employees and with Long. and that on these occasions he participated in the informal resolution of many employee problems. The fact that there was not a great number of grievances is more a tribute to a good relationship between the em- ployer and the bargaining agent than an indication that the Union was inactive. If there had been grievances which the Union never processed or handled poorly. this would be relevant to establishing that Local 17 had become inactive or irresponsible in discharging its obligations. North Ameri- can Manufacturing Comparn, 224 NLRB 1252. 1255 (1976). In this respect, however, Respondent offered no evidence that would substantiate such a charge against the Union's effectiveness or its interest in the employees. Nor does the fact that the Union never secured a signed contract rom Respondent for the 1974-77 period point to a contrary con- clusion. As found earlier, the Changing Parts's represcrita- tives solicited Gregory Long to sign the Association agree- ment on a number of occasions and in each instance he evaded the necessity of doing so b suggesting that this matter could he taken care of at "Some other tme'" and promising the business agent "We'll get around to it." In view of these facts, found earlier, Respondent is not no in a position to assert that the Union was Inactive because it did not secure a signed agreement since this plainl3 resulted from the subterfuges which Respondent practiced to avoid having to execute the new contract. Respondent also contends that the Union was inactive by reason of the fact that it had not requested the discharge of those employees who did not join Local 17 as required by the union shop provisions of the collective-bargaining agreement. That the Union did not request such action, however, resulted from Respondent's evasive conduct. rather than from a lack of interest on the Union's part. Thus, as found earlier, each month during the 1974 77 pe- riod Respondent remitted to the Union the dues that it de- ducted from employee wages. On cross-examimation. Pres- h47 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ident Long acknowledged that in the latter months of the contract term Respondent began supplying only a partial list of the newly hired employees. However, the Union was never given any notice that such lists were incomplete. In- stead, Business Agent Leegard testified that as late as No- vember 1978, lyone Rice, Respondent's bookkeeper, as- sured her that all applications and authorizations from new employees were being sent to the Union. Leegard further testified, credibly and without contradiction, that whenever she inquired as to specific employees who were not on the lists, she was informed by either bookkeeper Rice or Vice President Harriet Long that the individual in question was excluded from the union shop requirement because he or she was only working part-time, was in an on-call classifica- tion, or was a student on short hours. It is evident that the Union's failure to request the dis- charge of nonmembers on Respondent's payroll and to se- cure Respondent's signature on the 1974-77 contract were due to the subterfuges practiced by Respondent's officials. Further, on the basis of the findings set forth above as to the Union's efforts to resolve employee complaints, to dis- pose of formal grievances, and to secure Respondent's sig- nature on the contract, as well as the frequent visits to the Employer's premises by the business agent servicing the agreement, it is now found that there is no merit to Respon- dent's contention that the Union was inactive in fulfilling its obligations as the employee's representative. 4. Turnover Both at the hearing and in its brief Respondent has con- tended that the turnover of employees in the unit reinforced its conclusion that the Union no longer represented a ma- jority. President Long estimated that there was a turnover rate of approximately 50 percent between 1974 and 1977. However, Respondent offered no evidence of any signifi- cant change in the composition of the unit. The Board has held that evidence as to turnover of employees is relevant only to the extent that the employer is able to demonstrate that substantial changes have occurred in the composition of the bargaining unit. Peoples Gas System, Inc., 214 NLRB 944, 946-947 (1974). Since no such evidence was proffered and it appears that none was available, it must be presumed that the new employees support the Union in the same ratio as those whom they have replaced. Joel Costa Trucking Compan, 238 NLRB 1516, SI. op., pp. 3-4 (1978); Wash- ington Manor, Inc. d/b/a Washington Manor Nursing Center (North), 211 NLRB 324, 323 (1974); King Radio Corpora- tion, Inc., 208 NI.RB 578 583 (1974). 5. ecrease in checkoff authorizations At the hearing Respondent contended that the number of checkoffs declined from 1974 to February 1978. In support of that contention it offered in evidence a listing of the employees who authorized dues checkoffs in February 1978. This list contained only 32 names. This evidence, however, is irrelevant to the issue as to whether Respondent had reason to doubt the Union's majority the preceding November and December when Local 17 requested the Employer to bargain. Obviously, during the fall of 1977 and during the period critical to a determination of the Union's majority, Respondent did not have available and could not have relied on a February 1978 employee list of checkoff authorization.' The General Counsel offered in evidence the lists of checkoff authorizations for the period from June to Decem- ber 1977. These establish that for each of the months in that period the number of employees on checkoff was as indi- cated below: June 40 July 36 August 38 September 34 October 41 November 36 December 34 On December 3, 1978, there were 69 employees in the unit. 6 From the data above, it appears that there was a decrease of six employee authorizations for checkoff from June to December 1977. Assuming that there was approxi- mately the same number of employees in June as in Decem- ber,7 this would mean that about 57 percent of the unit employees authorized checkoffs in June and that 49.2 per- cent did so in December, a decrease of less than 8 percent in the 7-month period. Even if less than a majority of unit employees authorized checkoffs in December 1977 that in itself is immaterial to the issue of majority status. N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588, 591 (5th Cir. 1966); Washington Manor, Inc., d/b/a Washington Manor Nursing Center (South), 211 NLRB 315, 320-321 (1974). 6. Employee statements President Long testified that many employees made statements to him that were critical of the Union. The Board has held that to carry evidentiary weight in support of a reasonable doubt, such expressions of antiunion senti- ment must have been made prior to the Employer's with- drawal of recognition and must convey a clear intention not to be represented by the Union. Grand Lodge of Ohio, In- dependent Order of Odd Fellows d/b/a Odd Fellows Rebekah Home, 233 NLRB 143, 144 (1977). On the other hand, statements that are merely critical of the Union or in dis- agreement with its policies cannot be considered the equiv- alent of repudiation of the Union as the employees' bar- gaining agent. Retired Persons Pharmacy, t/a NRTA-AARP Pharmacy, 210 NLRB 443, 446 (1974), enforced 519 F.2d 486 (2d Cir. 1975). Long's testimony as to various conversa- I In rejecting a similar argument that was advanced in another case the Board stated: "the situation must be appraised as of the time of the commis- sion of the unfair labor practices, and not currently." Gibson Products Com- pany of Washington Parish, La., Inc.. 185 NLRB 362, 363 (1970). 6The payroll for this period carries 77 names. However, Gregory Long acknowledged that eight of those listed were individuals who were excluded from the unit because they were salaried, had the power to hire and fire, or were office clericals. The names of these employees were: Ardele Hagen- bugh, a salaried cashier; Priscilla Avery and yone Rice, both office clericals; Kevin McPartland, a manager; Beatrice Wollan, a salaried day hostess; Crystal Olson, a hostess with authonty to hire and fire; Sam Totino, a chef; and Thomas J. Wherley, a salaried night broilerman. ' This would appear to be a valid assumption. Although Gregory Long estimated that there were about 75 to 85 employees in the unit at all times, this estimate was not borne out by the payroll period ending October , 1977, when the total number in the unit was 67, and for the period ending Novem- ber 12, 1977, when there were 70 employees in the unit. 648 GREGORY'S INC. tions he had with employees over a period of months was in large measure lacking in specificity as to details and dates. Characteristic of many of the statements which he proffered as a demonstration that the Union had lost employee sup- port was a comment attributed to Ted Gladhill, a busboy. According to Long, on one occasion, the date unspecified, Kevin McPartland, the general manager, related that when Gladhill picked up his payroll check he remarked "There goes my eight bucks again." On direct examination, Long expressed the view that Gladhill was expressing an objec- tion to the union dues. On cross-examination, however, and after being shown an exhibit which indicated that Gladhill only paid $6.50 a month in union dues, Long acknowledged that the employee's comments may have been unrelated to the subject of union dues. Long testified as to a conversa- tion he had with Mary C. Brieger, a waitress, who found, after being hospitalized, that she was not covered by the Union's hospitalization insurance. According to Long, "She was upset with the union." He related nothing further as to his conversation with the employee. From this account it is obvious that although the employee may have been very distressed about not being eligible for insurance coverage, the statement quoted certainly cannot serve as the basis for a conclusion that she no longer cared to be represented by the Union. Many of the other employees whom Long quoted pur- portedly complained about having to pay dues or, as new employees, asked if they had to join. Apart from the fact that Long could not give any further details as to the times and places where these conversations were allegedly had, he also gave no testimony which would establish that these employees expressed a desire to be no longer represented by the Union. These then were statements which do not mea- sure up to the standard required to establish that the em- ployees in question had repudiated the Union. In another instance, Long related a conversation with William Morris- sey, a waiter who was also a college student, who requested information for a college term paper. According to Long, this conversation occurred just before Christmas and from it he concluded that Morrissey no longer wished to be rep- resented by Local 17 because the employee wanted to write about what unions do not do for people. Apart from the question as to whether Long was justified in reaching this presumption as to Morrissey's desires with respect to repre- sentation by the Union, the request for such information occurred after Respondent had already refused to bargain with Local 17. As a result, this evidence does not meet the test which the Board requires, viz., that the employee ex- pression of antiunion sentiment must have been made be- fore the Employer's withdrawal of recognition. Odd Fellows Rebekah Home, supra. From a consideration of all the evi- dence which Respondent introduced on this issue and on the basis of the findings set forth above it is now found that the satements offered to support Respondent's conclusion that the employees did not want the Union to represent them were not such as Respondent justifiably could rely on in challenging the majority status of the Union. North American Manufacturing Company, 224 NLRB 1252, 1258 (1976), enfd. 563 F.2d 894, 897-898 (8th Cir. 1977); .Nu- Southern Dyeing & Finishing, Inc.. and Henderson Combin. ing Co., 179 NLRB 573, 577 (1969), enfd. as to this point, 444 F.2d 11 (4th Cir. 1971). Finally, on the basis of all the findings set forth earlier herein, the undersigned concludes that Respondent has failed to rebut the Union's presumption of majority status. Accordingly, it is now found that there is substantial evi- dence to support the allegation in the complaint that Re- spondent unlawfully refused to bargain with the Union on and after December 16, 1977, and that it thereby violated Section 8(a)(5) and (1) of the Act. CONCIUSIONS OF LAW 1. Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. By its conduct set forth and found in section 111, su- pra, Respondent has engaged and is continuing to engage in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 3. Said unfair labor practices affect, and unless perma- nently restrained and enjoined, will continue to affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated Section 8(a)(5) and (1) of the Act, Respondent should be ordered to cease and desist from engaging in. or continuing, such, or like, violations. It has been found that there was a presumption that the Union had a majority at the time the 1974-77 contract ex- pired on September 30, 1977, and that Respondent did not rebut that presumption with any evidence which it offered during the course of the hearing in this matter. After the expiration of the contract the Union made several requests that Respondent meet and bargain with it and on Decem- ber 16, 1977, Local 17 repeated these requests in a letter addressed to Respondent to which it never received any answer. By the latter date, it is evident, from the findings set forth earlier herein, that Respondent had determined not to recognize the Union as the representative of its employees, notwithstanding its statutory obligation to do so. By then Respondent had. as the Board found in a recent case "em- barked on a clear course of unlawful conduct ... to under- mine the union's majority status." Trading Port, Inc., 219 NLRB 298, 301 (1975); The Great Atlantic & Pacific Tea Company, Inc., 230 NLRB 766, 767 (1977); The Kroger Co., 228 NLRB 149, 151 (1977). Consequently. it is now found that the bargaining order should be dated as of December 16. 1977. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is issued the following recommended: ORDERS The Respondent, Gregory's, Inc., its officers, agents, suc- cessors, and assigns, shall: 8 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 obections thereto shall be deemed waived for all purposes. 649 DECISIONS OF NATIONAL IABOR RELATIONS BOARD I. Cease and desist from: (a) Withdrawing recognition from, or failing and refus- ing to bargain in good faith with, Local 17, Hotel. Motel. Restaurant. Bar and Club Employees Union. AFL CIO, while that Union is lawfully entitled to recognition as the bargaining representative of the following appropriate bar- gaining unit of the Respondent's employees: All employees employed by the Respondent at its Minneapolis, Minnesota facility, including cooks, wait- ers, waitresses, captains, busboys, busgirls, hostesses, checkroom employees, cashiers, food checkers and din- ing room and service employees, but excluding office clericals, managerial employees, guards and supervi- sors as defined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the right to self-organization. to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Upon request, bargain collectively, with the aforesaid Union as the exclusive representative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed contract. (b) Post at its place of business in Minneapolis, Minne- sota, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respon- dent's authorized representative, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered. defaced, or covered by any other material. (c) Notify the Regional Director for Region 18, in writ- ing, within 20 days from the date of this Order. as to what steps Respondent has taken to comply herewith. I 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 b 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." 650