Mo'S West

130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mo's- West and Dora A. Nichols, Petitioner, and Hotel Employees Local No. 9 Mo's Enterprises, Inc. and Kay A. Shafer, Petitioner and Hotel Employees and Restaurant Employ- ees Local No. 9. Cases 36-RD-1097 and 36- RD-1098 27 February 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, AND STEPHENS On 12 August 1985 the Acting Regional Direc- tor for Region 19 issued a Decision and Order in the above-entitled- proceeding in which he dis- missed the two decertification petitions on the basis that the petitioned-for units were not coextensive with the-existing contractual bargaining unit. In so finding, the Acting Regional- Director concluded that the Employers were part of a multiemployer bargaining group. In accordance with Section 102.67 of the Board's Rules and Regulations, the Employers filed a timely request for review of the Acting Regional Director's decision. The Employers contended that the Acting Regional Director erred in finding that the Employers were part of the multiemployer bar- gaining group. By telegraphic order dated 11 October 1985 the request for review was granted. The Board has reviewed the entire record in this case and has, decided to affirm the Acting Regional Director's Decision and Order, attached as an ap- pendix hereto. The record supports the Acting Regional Direc- tor's finding that the Employers were members of a multiemployer bargaining group called the Presi- dents' Council of Food, Beverage, and Lodging In- dustries of Oregon (Presidents' Council) and had not timely withdrawn therefrom. Accordingly, we find that the Acting Regional Director correctly applied the Board's longstanding rule that a peti- tioned-for unit in a decertification petition must be coextensive with the certified or recognized unit.' The Chairman in his dissent contends that be- cause the decertification petitions here were filed at a time when the Union and the Employers could have withdrawn from the multiemployer bargain- ing group under the rules set forth in Retail Associ- ates, Inc.,2 the Board should process the decertifi- 1 Campbell Soup Co, 111 NLRB 234 (1955). 2 120 NLRB 388 (1958). Retail Associates states that in order to timely withdraw from a multiemployer bargaining unit, a party must give ade- quate written notice prior to the date set by the contract for modification or to the agreed-upon date to begin the multiemployer negotiations. Once negotiations have begun, a party cannot withdraw unless there is mutual consent, absent unusual circumstances 120 NLRB at 395. cation petitions in order to preserve the employees' right of self-determination. The Chairman raises an issue, however, that was not raised by the Employ- ers in their request for review. Such issue is there- fore not properly before the Board and unneces- sary to comment on in the instant case. CHAIRMAN DOTSON, dissenting- Contrary to my colleagues, I would. reverse the Acting Regional Director's Decision and Order dismissing the petitions. Rather, I would reinstate the petitions and remand the case to -the Region for further appropriate action, including scheduling of the elections and resolution of the outstanding issues. I The petitions in Cases 36-RD-1097 and 36-RD- 1098 seek decertification elections among certain employees employed by Mo's West and Mo's En- terprises, Inc. (MEI), respectively.2 Both Mo's West and MEI are members of a multiemployer bargaining group called the President's Council of Food, Beverage, and Lodging Industries of Oregon (Council). The Employers are signatories to a mul- tiemployer bargaining contract between the Coun- cil and the Union, which was in effect from 1 August 1982 through 31 July 1985. This contract covered those employees in the petitioned-for units. The Acting Regional Director found that since there was no evidence that the Employer had with- drawn from the Council, the petitioned-for units were not coextensive with the existing contractual multiemployer- unit, and the petitions must there- fore be dismissed. I disagree. The Board has long recognized that the basic element necessary to create a multiemployer bar- gaining unit is an unequivocal agreement from the employers and the union to be bound by group. ne- gotiations rather than individual bargaining.3 With- drawal from the multiemployer group may be achieved by an employer or the union simply by giving "written notice . . . prior to the date set by the contract for modification, or to the agreed- upon date to begin the multiemployer negotia- tions."4 Once actual multiemployer negotiations have begun, a unilateral attempt to withdraw from the multiemployer group is untimely, absent unusu- al circumstances. Neither the formation nor the dis- solution of the multiemployer bargaining unit, 1 In his decision, the Acting Regional Director found it unnecessary to pass on the issues of Petitioner Nichols' supervisory status and of the chowder manufacturing employees' inclusion in or exclusion from the bargaining unit 2 Mo's West is a restaurant operating seasonally in Otter Creek, Oregon. MEI is a corporation which operates two restaurants in Port- land, Oregon Mo's and Mo's Annex. 2 See Retail Associates, 120 NLRB 388, 393 (1958) 4 Id at 395 283 NLRB No. 23 MO'S WEST 131 however, takes into account the desires of the group most directly affected by these actions-the employees. I have recently stated my strong opposition to Board policies which put to one side employees' free choice in favor of so-called stability in bargain- ing relationships. 5 In my opinion, such decisions fail to strike the proper balance between the statu- tory right to refrain from collective bargaining, guaranteed to employees by Section 7 of the Act, ,and the more general statutory policy of industrial stability. In Gibbs & Cox, the Board held that a group of employees which constituted a separate appropriate unit at the time it sought representation was later "merged" into a -much larger, geographi- cally distant, group of employees by the agreement of the employer and the union. This "merger" later prevented the smaller group of employees from ex- pressing its desires in a representation election. Former Member Dennis and I dissented from this result, stating our belief that "[t]he appropriateness of [a] unit cannot be extinguished merely by mutual intent on the part of an employer and a union to conduct collective bargaining on the basis of some other unit." Here, as in Gibbs & Cox, the employees in two existing appropriate units were included in a much larger bargaining unit by the action of the employ- ers and the union.7 The employees of Mo's West and MEI have petitioned for decertification elec- tions in the smaller units covering only these Em- ployers' employees. The petitions were filed at a time when either the Union or the `Employers could have timely withdrawn from the multiem- ployer bargaining unit. In these circumstances, I believe that the employees should be given the same opportunity as the Union and Employers to "withdraw," in effect, from the multiemployer unit for the purpose of determining whether the em- ployees wish to reject or change bargaining repre- sentatives. As former Member Dennis and I stated in Gibbs & Cox, we believe that the appropriate ac- commodation between the conflicting goals of em- ployee free choice and, bargaining stability is that "absent unusual circumstances,' any unit which was appropriate for the purpose of selecting a bargain- 5 See former Member Dennis' and my dissent in Gibbs & Cox, 280 NLRB 953 (1986) (involving the Board's "merger" doctrine) and my dis- sent in Central Soya Co., 281 NLRB 1308 (1986) (involving the Board's accretion policy), 6 280 NLRB 953, 959, ° Although the record is devoid of any evidence indicating in what units the employees were originally organized, the parties' bargaining his- tory reveals that prior to the negotiations for the 1982-1985 collective- bargammg agreement, Mo's West and MEI had been treated as separate bargaining units not included in the multiemployer unit. From this, one can logically infer that the selection of the bargaining representative oc- curred in these separate units, rather than in the overall multiemployer unit ing representative remains appropriate for the pur- pose of rejecting that bargaining - representative or obtaining a new one."8 The Board's insistence that once an employer and a union have agreed to in- clude a separate unit of employees in a multiem- ployer bargaining unit, those employees cannot make changes in their bargaining 'representative except through that larger unit, is yet another ex- ample of the majority's willingness to sacrifice rights guaranteed employees by the Act to its views of statutory policy. Allowing an employer and a union effectively to disenfranchise employees by including them in a much larger unit because it meets the need or convenience of the employer and union is contrary to the employees' statutory Sec- tion 7 right to refrain from collective action. Stabil- ity in bargaining relations is a positive goal, but we must not elevate that goal above the basic princi- ples of employee self-determination which are guaranteed in Section 7. Our primary purpose in effectuating the Act should be that of protecting employee rights, especially the right freely to choose or reject a bargaining representative. Ac- cordingly, I dissent. S Id. APPENDIX DECISION AND ORDER' Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before a hearing officer of the National Labor Relations Board. Pursuant to the provisions of Section 3I(b) of the Act, the Board has delegated its authority in this proceeding to the undersigned. Upon the entire record in this proceeding,2 the under- signed finds: 1. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 2. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein.3 2 The parties' briefs have been considered As more fully explained in my Order Reopening Hearing and Notice of Further Hearing in this matter, dated June 26, 1985, the Union's request to strike Employers' Ex- hibits I and 3 was granted, accordingly, these exhibits have not been con- sidered 3 In light of my decision regarding the unit scope, to be discussed more fully, the question of jurisdiction with respect to these Employers is moot. However, I note that the purchase by Mo's Enterprises, Inc. of Mo's West was finalized prior to the July 17, 1985 hearing date and that the purchasing corporation, during its last fiscal year, had gross revenues in excess of $500,000 and purchased in excess of $50,000 worth of goods directly from sources outside the state of Oregon, Thus, Mo's Enter- prises, Inc., which is in the business of operating restaurants and of manu- facturing chowder for wholesale distribution, meets the Board's jurisdic- tional standards for a retail business Inasmuch as Mo's West is now an Continued 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. The labor organization involved claims to represent certain employees of the Employer. 4. No question' affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act, for the following reasons: The Union contends that both petitions must be dis- missed inasmuch as the petitioned-for units are not coex- tensive with the existing bargaining unit. Case 36-RD- 1097 seeks an election among certain employees em- ployed at Mo's West, and Case 36-RD-1098 seeks an election among certain employees employed at Mo's and Mo's Annex. The Union asserts that Mo's, Mo's Annex and Mo's West all are part of a multiemployer bargaining unit through the multiemployer bargaining group called the President's Council of Food, Beverage and Lodging Industries of Oregon (hereafter Council).4 The Employer denies the Union's claim, contending that neither Mo's Enterprises, Inc. (hereafter MEI) nor Mo's West prior to its purchase by MEI ever delegated its bargaining au- thority-to that or any other multiemployer group. MEI, is in the business of operating restaurants. Mo's and Mo's Annex in Newport,, Oregon, have been owned and operated by MEI for several years. The most recent contract covering certain employees at these establish- ments was effective from August 1, 1982 through July 31, 1985. The contract, which was the area agreement between the Council and the Union with certain modifi- cations set forth in an Addendum, was signed on behalf of MEI by Mohava Niemi, a shareholder and corporate officer, in April 1983. Although the Addendum was not offered into evidence, it appears that Niemi executed that document on behalf of MEI in March 1983, at the same time that she signed the Addendum to the Mo's West agreement, which Addendum was offered into evidence. Prior to its purchase by MEI, Mo's West, a restaurant in Otter Rock, Oregon, was a sole proprietorship owned by Niemi; however, at the time that the most recent con- tract covering certain Mo's West employees was execut- ed, it was a partnership in which Niemi was one of the partners. The contract covering the Mo's West employ- ees`ran from August 1, 1982 to July 31, 1985 and was the area agreement between the Council and the Union with certain modifications set forth in an Addendum. The Ad- dendum was signed in March 1983 on behalf of Mo's West by Niemi; the contract was signed in April 1983 by Niemi. Both the MEI contract and the Mo's West con- tract contained the following language on the signature page directly above Niemi's signature: The, undersigned employer agrees to be bound by all the terms and conditions of the attached "Con- tract and Agreement Between Presidents' Council of Food Beverage and Lodging Industries of Oregon (Restaurants of Oregon Association, Port- land Hotel Association, Oregon Hotel and Motel Association, Food Services Executives Association integral part of the corporation, jurisdiction may be asserted over it as well as over Mo's and Mo's Annex Carolina Supplies & Cement Co, 122 NLRB 88 (1958) 4 The parties stipulated that the Council meets the Board's jurisdiction- al standards. and Independent Operators) with Hotel Employees, Restaurant Employees Union Local 9 of the Hotel Employees, Restaurant Employees, International Union, AFL-CIO," and of the Health & Welfare and Pension Trusts formed pursuant to the terms of this Agreement, and to' accept as their representa- tives the employer trustees presently serving on said Trust and their duly, elected or appointed succes- sors. By agreeing to join the said Presidents' Coun- cil as an Independent Operator, the employer is bound to the Presidents' Council agreement and be- comes a member of the multi-employer bargaining group, but does not waive its right to join any-other member groups of the Presidents' Council, and may withdraw from, the Presidents' Council by giving the Presidents' Council and Union written notice of withdrawal as provided by law. The language clearly and unequivocally indicates the in- tention of the signatory employer to be a part of the multiemployer bargaining group and there is no dispute that Niemi did in fact sign the page containing this lan- guage on; behalf of both MEI and Mo's West. However, the Employers' counsel contends that the Employers never intended to become part of the multiemployer bar- gaining group or to execute contracts containing such language. Gordon MacPherson, an attorney involved on behalf of both MEI and Mo's West in their contract ne- gotiations with the Union -in 1982 and 1983, testified that the Council area contract which the Union had provided to him during negotiations contained the following lan- guage on the signature page: The undersigned nonmember of the Presidents' Council of Food, Beverage and Lodging Industries of Oregon agrees to be bound by all the terms and conditions of this Agreement, and of the Health and Welfare and Pension Trusts formed pursuant to the terms of this Agreement, and accept as their repre- sentatives the Employer Trustees presently serving on said Trusts and their duly elected or appointed successors. This is the same language as that which had been con- tained in the predecessor contracts between-the parties and which is contained in the copy of the 1982-1985 Council agreement which the parties entered as Joint Ex- hibit 2. MacPherson, testified that some of the negotia- tions were conducted outside, his presence, directly be- tween Niemi and Union representatives. MacPherson stated that at those sessions at which he was present, the issue of the multiemployer bargaining group never was discussed. However, MacPherson was not,present at the April 1983 session at which Niemi executed the contracts and thus is unable to testify as to how it came about that Niemi signed the documents containing the critical lan- guage. The Employers also produced-as a witness Cindy McEntee, who was and is MEI's manager and corporate secretary. McEntee testified that she was present at some of the negotiation sessions in 1982 and 1983 and that at none of those sessions was the-topic of, the multiemploy- er bargaining group raised. She further testified that she MO'S WEST 133 was present during a portion of the April 1983 meeting at which Niemi executed the contracts and that there was no discussion regarding the topic of multiemployer group bargaining while she was present. Finally, the Em- ployer presented as a witness an official of the Council who testified that neither MEI nor Mo's West is consid- ered by the Council as an official member of that asso- ciation. Despite the fact that the Employers had the opportuni- ty to proffer Niemi as a witness on three different hear- ing days over a two-month period, and after repeated notice, including that set forth in the Order Reopening Hearing and Notice of Further Hearing, that the multi- employer bargaining unit issue was an issue to be litigat- ed at the hearing, the Employers failed to present Niemi. The Employers assert that, despite the clear and unam- biguous contractual language regarding their becoming part of the multiemployer bargaining group, that lan- guage must be ignored; yet, they failed to call Niemi, a witness under their control, to give evidence which might mitigate the weight to be accorded to the critical language in the documents she signed. While McEntee testified that the multiemployer bargaining group issue was not discussed during that portion of the April 1983 meeting at which she was present, her testimony in this regard proves nothing affirmatively inasmuch as she was absent during a portion of the critical meeting. Thus, no evidence was presented which might convince me that there is some reason why the clear and unambiguous lan- guage of the signed documents is not to be accorded controlling weight. While the Employers' counsel does not allege that the Union committed fraud by presenting for signature the documents which Niemi signed, but rather asserts that the presentation of the critical lan- guage was a mistake on the Union's part and Niemi's signing the documents containing that language was an- other mistake, the Employers, by failing, to call Niemi as a witness despite ample notice and opportunity, have failed to adduce evidence to rebut the clear and unam- biguous contractual language. Thus, I cannot do other- wise but conclude that the objective evidence shows that MEI and Mo's West, through Niemi's execution of the contracts, clearly and unequivocally expressed their in- tention to forthwith be a part of the multiemployer bar- gaining group and, derivatively, a part of the multiem- ployer bargaining unit. The Kroger Co., 148 NLRB 569 (1964); Morgan Linen Service, Inc., 131 NLRB 420 (1961). Moreover, the Employers produced no evidence to show that either or both MET and Mo's West have withdrawn from the multiemployer -group in a timely and proper fashion. Having concluded that the unrebutted objective evidence establishes that both MEI and Mo's West are part of the multiemployer bargaining group and that nei- ther has withdrawn from the group, I find that the peti- tioned-for units are not coextensive with the existing contractual bargaining unit and that the petitions there- fore must be dismissed.5 W. T Grant Company, 179 NLRB 671 (1969). Accordingly, I shall grant the Union's motion to dismiss the petitions and I shall, and hereby do, dismiss both petitions. IT IS HEREBY ORDERED that the petitions filed herein be, and they, hereby are, dismissed. 5 Having so concluded, the issues of petitioner Nichols' supervisory status and of the unit inclusion or exclusion of chowder manufacturing employees are moot and need not be addressed