El-Torito-La Fiesta Restaurants, Inc.

518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD El Torito-La Fiesta Restaurants, Inc. and Hotel Em- ployees and Restaurant Employees Union, Local 100, of New York, New York and Vicinity, AFL-CIO. Case 2-CA-21049 26 June 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 14 May 1986 Administrative Law Judge Steven Davis issued the attached decision. The General Counsel, the Charging Party, and the Re- spondent filed exceptions and supporting briefs, and the Respondent filed an answering briefl The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, fmdings, 2 and conclusions only to the extent consistent with this Decision and Order. The General Counsel alleged in the complaint That the Respondent unlawfully withdrew recogni- tion from the Charging Party as the bargaining representative of the Respondent's employees at its Yonkers, New York restaurant and refused to apply a collective-bargaining agreement at that site. The Respondent admitted its refusal to recognize the Charging Party and to apply the collective-bar- gaining agreement, but argued that its conduct was lawful for either of two reasons: (1) the Charging Party had no right to represent the Yonkers em- ployees because changes in the bargaining repre- sentative had resulted in a lack of continuity of representation, and (2) changes in operations and the work force resulting from the shutdown, re- modeling, and reopening of the Yonkers restaurant amounted to unusual circumstances justifying with- 1 The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. The Charging Party appended to its brief two exhibits, neither of which is part of the record in this case. Exhibit A is a Region 2 Regional Director's report in another case involving the same union, and Exhibit B is an excerpt from the transcnpt of a third case involving the same union. The Charging Party has moved that Exhibit B be made part of the record here We deny the motion, as it has not been shown that the infor- mation contained in Exhibit B constitutes newly discovered or previously unavailable evidence See Sec. 102.48 of the Board's Rules and Regula- tions. For the same reason, we grant the Respondent's motion to strike Exhibit A from the Charging Party's brief 2 The Respondent has excepted to some of the Judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. drawal of recognition. The judge, while finding the changes due to shutdown and reopening insuffi- cient to warrant withdrawal of recognition, found that a lack of continuity of representation justified the Respondent's conduct. We agree with the former finding, but disagree, with the latter. We therefore reverse and find that the Respondent's withdrawal of recognition and refusal to apply the collective-bargaining agreement violated Section 8(a)(5) and (1) of the Act. I. FACTS Until 1982 the Howard Johnson Company ran the Red Coach Grill, a restaurant serving primarily American cuisine, in Yonkers, New York. On 15 May 1981 Howard Johnson entered into a collec- tive-bargaining agreement with Hotel, Restaurant and Club Employees and Bartenders Union Local 6 affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO (Local 6), covering dining room, bar, and kitchen employees at the restaurant. 3 The contract was ef- fective from 16 May 1981 to 15 January 1986. In the late fall of 1982 Howard Johnson sold the Red Coach Grill to Exeter Equities. Exeter agreed to assume the Local 6 bargaining agreement, and Exeter thereafter honored the agreement. Effective 1 January 1983 Local 6 was restruc- tured. Local 6 continued to represent hotel indus- try employees, while a new entity, Local 100, op- erating under a trusteeship imposed by the Interna- tional, was formed to represent restaurant employ- ees formerly represented by Local 6. On 6 May 1983 Exeter sold the Red Coach Grill to El Torito. Though El Torito continued to oper- ate the restaurant as the Red Coach Grill, from the date of its purchase El Torito intended to convert the restaurant into an El Torito restaurant serving Mexican cuisine. In May 1983 Local 100 sought and obtained El Torito's signature on the following two documents: WHEREAS, the parties hereto desire to co- operate to stabilize labor relations by establish- ing and maintaining general standards of wages, hours of service, and other conditions of employment, and BE IT HEREBY KNOWN that the EMPLOYER and the UNION enter into the following: 1. THE EMPLOYER agrees to assume and adopt the present collective-bargaining agreement existing between Howard Johnson Company d/b/a Red Coach Grill 3 The Red Coach Gnll employed 80 to 90 unit employees. 284 NLRB No. 66 EL TORITO-LA FIESTA RESTAURANTS 519 and Local 6 of the Hotel Employees and Restau- rant Employees International Union 2. The EMPLOYER hereby recognizes the UNION as the successor in interest to Local 6 of the Hotel Employees and Restaurant Employees International Union. 3. This Agreement is effective as of the date of its making and expires on the same date as the collective bargaining agreement which the EMPLOYER hereby assumes. The second agreement read as follows: This is an Amendment to the present Collec- five Bargaining Agreement existing between El Torito-La Fiesta Restaurants, Inc. d/b/a Red Coach Grill and Local 6, Hotel, Restau- rant & Club Employees and Bartenders Union, AFL-CIO; 1. The Company hereby recognizes Hotel Employees and Restaurant Employees Union Local 100, AFL-CIO New York City, New York and Vicinity, as the succes- sor to the above stated local and further, as the Collective Bargaining Agent for its em- ployees in the contract referred to above. 2. HERE Local 100 agrees to honor and adopt the Collective Bargaining Agreement in its entirety. 3. This Amendment is effective January 1st, 1983 and expires on the same date as the un- derlying Collective Bargaining Agreement. El Torito continued to operate the restaurant as the Red Coach Grill and honored the collective- bargaining agreement from 6 May until 31 Decem- ber 1983, when it closed the facility for remodeling into an El Torito Mexican food restaurant. Before 31 December El Torito informed Local 100 of the planned closing and remodeling, and announced that all employees who were being laid off would be notified that they could reapply for and return to their jobs when the restaurant reopened. 4 On 31 December El Torito closed the restaurant and laid off all 72 employees. The remodeling, though expected to take only 5 or 6 Months, was not completed for 114 months. In August 1984 El Torito sent letters to the laid-off employees explaining the reason for the delay and stating, "We will keep you informed of our 4 In January 1984, at a meeting between El Torito Employee Relations Manager David Villareal and Local 100 officials Michael Campbell and Anthony Amodeo, Amodeo asked Villareal for an agreement to cover all El Torito restaurants. Villareal replied that he could not commit himself to such an agreement at that time, but told the union officials that "you have the El Torito in Yonkers," and that El Torito would continue to recognize the Yonkers contract with Local 100. progress as we near completion and will give you details as to your recall procedures." In December 1984 El Torito again sent letters to the laid-off em- ployees stating that it planned to reopen the restau- rant in early 1985 and soliciting individuals interest- ed in working at the reopened restaurant. Of the 72 laid-off employees, 45 expressed interest in reem- ployment. Of those 45, 32 showed up for inter- views in early February 1985 when El Torito was selecting its work force, and 14 accepted offers of reemployment.° Only 8 of the 14 began work at the restaurant when it reopened as an El Torito Mexican food restaurant on 4 March 1985.6 On 5 March 1985 Local 100 demanded that El Torito continue to recognize it as the bargaining representative of its dining room, bar, and kitchen employees and to apply the collective-bargaining agreement. El Torito refused. II. CONTINUITY OF REPRESENTATIVE The judge found that there was no continuity of representation between Local 6 in its capacity as bargaining representative of the Red Coach Grill employees before 1 January 1983 and Local 100 as the successor bargaining representative. 7 The judge also found that El Torito had not, by its May 1983 agreements with Local 100, waived its right to challenge Local 100's assumption of Local 6's bar- gaining rights at the Yonkers restaurant and was not estopped from raising the continuity of repre- sentation issue in the instant proceedings. The judge relied on testimony by El Torito Executive Vice President and Chief Financial Officer Martin Casey that he signed the recognition agreement at the request of Employee Relations Manager David Villareal who told Casey that the agreement was merely "paperwork" reflecting a "transfer in name," and Casey's testimony that he was unaware until the instant proceeding that a question would be raised concerning continuity of representation between Locals 6 and 100. The judge therefore found El Torito had not intentionally relinquished a known right, and without such a relinquishment there could be no waiver or estoppel. We do not agree that El Torito is free to raise the continuity of representation issue as a defense 5 There is no allegation that El Torito discriminated against former Red Coach Grill employees in its selection of employees for the reopened facility. Indeed, though El Torito claims that all those interviewed in February 1985, including the laid-off employees, were considered new applicants, El Torito began interviewing potential new hires only after completing interviews with the laid-off employees. The El Torito restaurant employed 180 to 200 employees. 7 The judge based his finding on the Board's decision in Charlie Brown's, 271 NLRB 378 (1984), and the fact that here, as in Charlie Brown's, there is no evidence the employees were given a chance to vote on the change in representative. In view of our resolution of this case, we need not pass on the judge's finding and do not rely on Charlie Brown's. 520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to the instant unfair labor practice charge. Unlike the judge, we are not swayed by Casey's asserted ignorance about the recognition documents he signed. It is clear from the face of the May 1983 agreements that Local 100's substitution for Local 6 involved a change in representative. The agree- ments refer to Local 100 as the "successor in inter- est" to Local 6. Nowhere in the agreements is there any suggestion that the change from Local 6 to Local 100 involved only a change in names, nor is there any evidence Local 100 made any such representation to El Torito. If El Torito had doubts about Local 100's status it could have raised them when Local 100 presented the recognition documents to El Torito for its signature in May 1983. Instead, when El Torito signed the May 1983 agreements recognizing Local 100, it induced Local 100 to believe that El Torito had waived any objections to Local 100's assumption of Local 6's representational rights. El Torito clearly intend- ed Local 100 to rely on the recognition, for it thereafter dealt with Local 100 as the employees' bargaining representative, forwarding dues pay- ments to Local 100 and honoring the collective- bargaining agreement. Local 100 relied to its detri- ment on the recognition, i.e., Local 100 took no action during the 8-month period while the Red Coach Grill was still operating to reestablish its status by, for example, obtaining authorization cards or petitioning for an election. When El Torito finally challenged the manner in which Local 100 was created, raising the issue for the first time nearly 2 years after recognition, the Red Coach Grill had been closed for 14 months, and the restaurant had reopened with only 8 former Red Coach Grill employees out of a total work force of 180 to 200. On these facts we find that all the elements of estoppel have been satisfied. Knapp- Sherrill Co., 261 NLRB 396, 398 (1982); Ventura County Star-Free Press, 279 NLRB 412 fn, 1(1986). We conclude that El Torito is estopped from chal- lenging Local 100's assumption of Local 6's right to represent the Yonkers restaurant employees. III. CHANGE IN OPERATIONS We agree with the judge that the closing of the Red Coach Grill and the reopening of the facility as an El Torito restaurant provided no justification for the Respondent's withdrawal of recognition. Despite the different menu and atmosphere, the ex- pansion in the work force, and the change in style and method of work, the nature of the business and the function of the employees remained essentially the same. Nor did the hiatus in operations provide El Torito any grounds for its conduct. When El Torito took over the restaurant in May 1983 and agreed with Local 100 on a collective-bargaining agreement covering the restaurant employees until January 1986, El Torito already knew it was going to remodel the facility into an El Torito restaurant. All parties understood that the shutdown was to be temporary, rather than an indefinite cessation of operations. Indeed, when remodeling began the restaurant was expected to reopen within 5 or 6 months. El Torito repeatedly assured the former Red Coach Grill employees, before and during the shutdown, that El Torito would be seeking their services when the restaurant reopened, and El Torito let Local 100 know that it would continue to honor the contract. During the shutdown the laid-off employees thus retained a reasonable ex- pectation of reemployment and the bargaining unit remained intact. The hiatus therefore did not serve to break the continuity of the enterprise or affect El Torito's bargaining obligation to its work force. See Schmutz Foundry & Co., 251 NLRB 1494, 1495-1497 (1980), enfd. 678 F.2d 657 (6th Cir. 1982). Finally, El Torito can draw no support for its conduct from the fact that only 8 employees work- ing at the restaurant after it reopened in March 1984 had been working at the restaurant in Decem- ber 1983, that the work force expanded from 80 to 90 employees at the Red Coach Grill to between 180 and 200 employees at the El T'orito restaurant, or that the record lacks affirmative evidence of union support among the work force at the re- opened restaurant. The mere occurrence of work force expansion and turnover does not rebut the presumption of continuing union majority. Ocean Systems, 227 NLRB 1593, 1595 (1977), enfd. mem. 571 F.2d 859 (5th Cir. 1978). Further, as El Tori- to's contract with Local 100 did not expire until January 1986, Local 100 enjoyed an irrebuttable presumption of majority status at the time of El Torito's withdrawal of recognition. Hexton Furni- ture Co., 111 NLRB 342 (1955). CONCLUSIONS OF LAW 1. All full-time and regular part-time dining room, bar, and kitchen employees of the Respond- ent, employed at its Yonkers, New York restaurant, excluding all other employees, guards, and supervi- sors as defmed in the Act, constitute an appropriate unit for the purposes of collective bargaining.8 8 The Respondent refused to admit to the appropriateness of this unit as alleged in the complaint and the judge made no findmg as to the ap- propriate unit. According to the 1981 contract between Howard Johnson and Local 6, adopted by El Tonto and Local 100 in May 1983, the Union was recog- nized as the exclusive bargammg agent "for all full-time and regular part- time employees employed m the classifications set forth in SCHEDULE Continued EL TORITO-LA FIESTA RESTAURANTS 521 2. By refusing on and after 5 March 1985 to rec- ognize and bargain with the Union as exclusive representative of the employees in the appropriate unit described above, and by refusing to apply the collective-bargaining agreement in effect, the Re- spondent violated Section 8(a)(5) and (1) of the Act. REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and take certain af- firmative action designed to effectuate the policies of the Act. Having found that the Respondent has unlawful- ly refused to recognize the Union, we shall order that it recognize the Union and, on request, bargain collectively with the Union as the exclusive bar- gaining representative of the employees in the ap- propriate unit described above. Having further found that the Respondent un- lawfully refused to apply the terms and conditions of its collective-bargaining agreement with the Union to its employees at its Yonkers, New York restaurant, we shall order the Respondent to make its employees whole for any loss in wages or other benefits due to the Respondent's refusal to apply the terms of the collective-bargaining agreement, as prescribed in Ogle Protection Service, 183 NLRB 682 (19'70), with interest as prescribed in New Hori- zons for the Retarded, 283 NLRB 1173 (1987).9 'A' . . , at the Employer's Yonkers, New York, restaurant located in the Cross County Shopping Center; but excluding office clerical employees, executive hostess, chefs, guards, watchmen and supervisors as defmed by the Act." Schedule "A" listed a number of classifications, and according to the record, all employees in these classifications worked in the dining area, bar, or kitchen. As of 31 December 1983 the Red Coach Grill em- ployed, in addition to the employees in the contract classifications, two department managers, the chef, and a bookkeeper (none of whom were included in the unit), a cleaning person and a maintenance person (both of whom were considered to be unit employees) When the El Tonto restaurant opened on 4 March 1985, the job classi- fications for nonsupervisory personnel at the restaurant were somewhat different from those that existed at the Red Coach Grill, but it is clear from the record that all employees in the new classifications, with the exception of the employee classified as "office clerk," were dining room, bar, or kitchen employees. (No El Tonto employees currently perform the duties previously performed by the Red Coach Grill cleaning person and maintenance person.) Further, as the judge found, the functions of the dining room, bar, and kitchen employees at the El Torito restaurant remain essentially the same as those of the dmmg room, bar, and kitchen employees at the Red Coach Grill who comprised the contractually rec- ognized eniployee unit. We conlude the record supports finding that the unit described above constitutes an appropriate unit at the Respondent's restaurant. 9 Further, under Menyweather Optical, 240 NLRB 1213 (1979), we leave the determination of interest on employee benefit funds, if any, to the compliance stage, where any additional amounts will be determined. ORDER The National Labor Relations Board orders that the Respondent, El Torito-La Fiesta Restaurants, Inc., Yonkers, New York, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with Hotel Employees and Restaurant Employees Union, Local 100, of New York, New York and Vicinity, AFL-CIO as the exclusive bargaining representa- tive of the employees in the following appropriate unit: All full-time and regular part-time dining room, bar, and kitchen employees of the Re- spondent, employed at its Yonkers, New York restaurant, excluding all other employees, guards, and supervisors as defined in the Act. (b) Refusing to apply the terms of a collective- bargaining contract with the Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Recognize and, on request, bargain with the Union as the exclusive representative of the em- ployees in the appropriate unit described above on terms and conditions of employment. (b) Make the employees whole for any loss of wages or employment benefits, with interest, due to the Respondent's failure to apply the terms of its collective-bargaining contract with the Union which the Respondent assumed and adopted in May 1983. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Yonkers, New York, copies of the attached notice marked "Appen- dix." Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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." 522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to recognize and bargain with Hotel Employees and Restaurant Employees Union, Local 100, of New York, New York and Vicinity, AFL-CIO as the exclusive bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time dining room, bar, and kitchen employees employed by us at our Yonkers, New York restaurant, excluding all other employees, guards, and su- pervisors as defmed in the Act. WE WILL NOT refuse to apply the terms of a col- lective-bargaining contract with the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, bargain with the Union as the exclusive representative of the employees in the appropriate unit described above on terms and conditions of employment. WE WILL make the employees whole for any loss of wages or employment benefits, with inter- est, due to our failure to apply the terms of our collective-bargaining contract with the Union which we assumed and adopted in May 1983. EL TORITO-LA FIESTA RESTAU- RANTS, INC. James Wasserman, Esq., for the General Counsel. H. Reed Ellis, Esq. (De Maria, Ellis & Hunt, Esqs.), of Newark, New Jersey, and Patrick M. Stanton, Esq. (W.R. Grace & Co.), New York, New York, for the Respondent. Harold Ickes Esq. (Suozzi, English & Klein, P.C.), of Min- cola, New York, for the Charging Party. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. On 14 May 1985 Hotel Employees and Restaurant Employees Union, Local 100, of New York, New York and Vicini- ty, AFL-CIO (Local 100 or the Union) filed a charge against El Torito-La Fiesta Restaurants, Inc. (Respond- ent), 1 and on 29 August, the Regional Director for Region 2 of the National Labor Relations Board issued a complaint against Respondent that alleged it violated Section 8(a)(1) and (5) of the Act by failing and refusing to recognize the Union as the exclusive representative of its employees at its Yonkers, New York location, and failing and refusing to apply and enforce a collective-bar- gaining contract at that site. Respondent's answer denied the material allegations of the complaint and set forth certain affirmative defenses. The case was heard before me in New York City on 15 and 16 January 1986. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a New York corporation, having its office and place of business in Yonkers, New York, has been engaged in the operation of a restaurant selling food and beverages to the public. Annually, in the course and con- duct of its business operations, Respondent derives gross revenues in excess of $500,000, and also purchases food and beverages valued in excess of $50,000 directly from suppliers located outside New York State. Respondent admits and I find that it is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Howard Johnson Company d/b/a Red Coach Grill operated a restaurant known as the Red Coach Grill in Yonkers, New York, which served American cuisine. On 15 May 1981 that company entered into a collec- tive-bargaining agreement with Hotel, Restaurant and Club Employees and Bartenders Union Local 6 affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO (Local 6), covering cer- tain employees. 2 The contract, effective from 16 May 1 Martin Casey, Respondent's executive vice president and chief finan- cial officer, testified without contradiction that in October 1983, the name of Respondent was changed to El Tonto Restaurants, Inc. Because there was no motion to amend the name as set forth in the complaint, I have not done so. 2 The Job classifications covered by the contract are: host/waitress; waiter/waitress; bus person; bartender; cashier/checker; cook; broiler- Continued EL TORITO-LA FIESTA RESTAURANTS 523 1981 to 15 January 1986, was by its terms "binding upon the successors and assigns of the parties." About October 1982, the Red Coach Grill was pur- chased by Exeter Equities. One provision of the contract of sale was that Exeter agreed to assume the Local 6 contract. Exeter operated the Red Coach Grill and ap- parently honored the Local 6 agreement. Effective in January 1983 the Hotel Employees and Restaurant Employees International Union imposed a trusteeship on Local 6. The trusteeship was to operate under the name Hotel and Restaurant Employees Union Local 100, which was created in January 1983. Accordingly, at that time, as stipulated at the hearing, Local 100 succeeded to the representation rights of Local 6 with respect to the unit employees at the Red Coach Grill. On 6 May 1983, Exeter Equities, which had been oper- ating the Red Coach Grill, sold it to Respondent. B. Respondent's Operation of the Red Coach Grill Respondent operated the Red Coach Grill as the Red Coach Grill, but from the date of its purchase it intended to convert it to an El Torito restaurant. In May 1983, Respondent and Local 100 entered into the following agreement: WHEREAS, the parties hereto desire to cooper- ate to stabilize labor relations by establishing and maintaining general standards of wages, hours of service, and other conditions of employment, and BE IT HEREBY KNOWN that the EMPLOY- ER and the UNION enter into the following: 1. THE EMPLOYER agrees to assume and adopt the present collective- bargaining agree- ment existing between Howard Johnson Company d/b/a Red Coach Grill and Local 6 of the Hotel Employees and Restaurant Employees International Union 2. The EMPLOYER hereby recognizes the UNION as the successor in interest to Local 6 of the Hotel Employees and Restaurant Employees International Union. 3. This Agreement is effective as of the date of its making and expires on the same date as the collective bargaining agreement which the EM- PLOYER hereby assumes. Another document entitled "Amendment To Collective Bargaining Agreement," was signed on the same date and stated: This is an Amendment to the present Collective Bargaining Agreement existing between El Torito- La Fiesta Restaurants, Inc. d/b/a Red Coach Grill and Local 6, Hotel, Restaurant & Club Employees and Bartenders Union, AFL-CIO; man/relief cook, fry cook; salad/pantry preparation; floor steward; utili- ty; and banquet waiter/waitress. I. The Company hereby recognizes Hotel Em- ployees and Restaurant Employees Union Local 100, AFL-CIO New York City, New York and Vicinity, as the successor to the above stated local and further, as the Collective Bargaining Agent for its employees in the contract referred to above. 2 HERE Local 100 agrees to honor and adopt the Collective Bargaining Agreement in its en- tirety. 3. This Amendment is effective January 1st, 1983 and expires on the same date as the underlying Col- lective Bargaining Agreement. Martin Casey, Respondent's executive vice president and chief financial officer, testified that he signed the (a) first agreement at the request of David Villareal, Re- spondent's employee relations manager, who told him that it represented "paperwork" to confirm a name change from one union to another, and (b) amendment to collective-bargaining agreement because he believed that he was obligated to do so because of his understanding that the purchase of the Red Coach Grill carried with it the duty to assume the union contract during the time that the Respondent operated the Red Coach thin. In his letter to Local 100 transmitting the two execut- ed agreements, Villareal stated that he declined to exe- cute a third document—a recognition agreement. The recognition agreement provided, inter alia, that the par- ties agreed that (a) the Union demanded the Employer recognize it as the exclusive bargaining agent of the em- ployees and (b) the Employer has conducted an independent investigation into the Union's claimed majority status and has determined that the Union has been designated by a majority of its employees in an appropriate bargaining unit, and that (c) on the basis of its independent investigation and confirmation of the Union's majority status, the Employer recognizes the Union as the . . . exclu- sive bargaining agent . . . and agrees (within 30 days to) enter into collective bargaining negotia- tions with the Union with the intent . . of con- cluding a collective bargaining agreement. . . . Villareal's reason for refusing to execute the recogni- tion agreement was that "we have by virtue of [signing the two agreements] acknowledged the necessary ele- ments in conducting a working relationship via the exist- ing labor agreement." Respondent continued to operate the restaurant as a Red Coach Grill, and honored the collective-bargaining agreement, from the date of its purchase on 6 May 1983 until 31 December 1983, when Respondent closed the restaurant. The purpose of closing was to renovate the facility and transform it into an El Torito restaurant. It was believed that the metamorphosis could be completed within 5 or 6 months, but the opening of El Torito actu- ally did not occur until 4 March 1985, which was 14 months after the close of the Red Coach Grill. The delay was caused by the (a) extensive nature of the renovation including a complete gutting of the interior of the struc- 524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ture, (b) delays in obtaining inspections and permits, and (c) a late change in concept for the restaurant—eliminat- ing a planned dance floor.5 On 9 December 1983 David Villareal, Respondent's director of labor relations, sent a letter to Local 100 in which he notified it of the intended closing of the Red Coach Grill on 31 December. He stated that "by virtue of this closure, the Red Coach Grill will close as an operational entity, and the physical location will undergo major renovation." Thereafter, Kevin Conley, the man- ager of the Red Coach Grill, told the employees that the restaurant would be permanently closed on 31 Decem- ber, that they would be laid off, and that a new Mexican restaurant would open at the site sometime in 1984. According to Union Agent Michael Campbell, Conley told him, before 31 December, that the Red Coach Grill was closing for renovations, and that all the employees who were being laid off would be notified that they could reapply for and return to their jobs when the res- taurant opened.4 As of the date of the closing of the Red Coach Grill, the 72 unit employees were laid off, and of those, 41 had dues checked off by Respondent and sent to Local 100. Respondent's official testified that 19 dues-deduction authorizations were in its possession. Those cards were signed by employees who were employed from May to December 1983 when Respondent operated the Red Coach Grill. On the closing of the Red Coach Grill, Respondent paid the employees for all the hours they worked and for accrued vacation. The International Union terminated Respondent's health, welfare, and pension account for the Red Coach Grill, effective 31 December 1983. In January 1984, a meeting was held between Villar- eal, Michael Campbell, and Anthony Amodeo, the busi- ness agent and president, respectively, of Local 100. Amodeo asked Villareal for an "International" agree- ment to cover all El Torito restaurants. Villareal replied that he had to get back to him regarding that, but "you have the El Torito in Yonkers, and we're recognizing that contract. 5 Villareal did not testify. C. Notification and Hiring of Employees On 23 August 1984 Donna Davies, Respondent's di- rector of personnel, sent the following letter to the laid- off employees: The purpose of this letter is to advise you of the status of the Yonkers Red Coach Grill , conversion to that of an El Torito Mexican dinnerhouse. The remodeling work necessary for the conver- sion is proving to be quite extensive. It now appears that, due to delays in deliveries of construction ma- 3 It has not been alleged that the delay in opening the El Torito restau- rant was motivated by antiunion considerations. 4 I credit Campbell's testimony in this regard. Respondent's later noti- fication to laid-off employees that they could apply for jobs, and the pref- erence shown them in being given interviews before other candidates, supports his testimony. 5 Campbell was not certain whether Villareal said that "we are recog- nized in that contract," "we are recognizing that contract," or "we will recognize the contract" terials, the restaurant's reopening will be delayed beyond the originally projected date of September 1984. We are using this additional time to evaluate the benefits we might realize from the addition of a dance floor/disco operation. If we decide to go for- ward with addition of such an operation, we would do so prior to the reopening so that we can be ready with a complete format when the El Torito concept becomes a reality. We will keep you informed of our progress as we near completion and will give you details as to your recall procedures. On 11 December 1984, Davies sent the employees the following letter: Barring any other unforeseen problems, we are planning on opening the all-new El Torito Mexican Restaurant in Yonkers on February 1. We hope you are looking forward to the intro- duction of our exciting Mexican food dinnerhouse concept into the Yonkers area. We expect that the informal fast-paced atmosphere and the affordably- priced menu will result in a high volume of guests coming into the restaurant during all hours of oper- ation. Since many of you have not had the chance to visit an El Torito, we are enclosing a sample menu, photographs and promotional material to help you understand the concept. El Torito offers a wide va- riety of Mexican Food in a fun and festive atmos- phere. Of course, our employees are a vital part of our upbeat, friendly and lively environment. In addition, we also are enclosing a reply card for you to use to let us know your interest in work- ing with us and how to contact you in connection with our staffmg of the new El Torito. Please take the time to complete the card and return it to us. If we do not hear from you, we'll assume you are not interested. We look forward to February when El Torito excitement comes to Yonkers. Enclosed with that letter was a preprinted reply card that stated, "Yes! I am interested in working at the new El Torito in Yonkers. Please contact me when more in- formation is available." On 29 January 1985 Davies sent letters to employees, which stated, in part, that As you may see from the ads in your local newspa- per, interviews for applicants will begin. . . Febru- ary 5th. However, in view of your experience and interest we would like to meet with you prior to that date. If you are still interested in working at the El Torito-Yonkers, please come to the restau- rant. . . on February 4th. . . .6 6 Davies stated that all those interviewed, including the laid-off Red Coach Grill employees, were considered as "new applicants." EL TORITO-LA FIESTA RESTAURANTS 525 Of the 72 employees on the payroll as of 31 December 1983, 45 returned reply cards in response to the 11 De- cember letter, or otherwise applied for a position. Of those 45, 32 were interviewed and 14 accepted positions that were offered.7 However, only 8 of the 14 actually began work at El Torito on 4 March 1985. D. The Opening of El Torito About 5 March, Local 100 demanded that Respondent continue to recognize it as the exclusive bargaining rep- resentative of its dining room, bar, and kitchen employ- ees, and to apply and enforce the collective-bargaining agreement previously assumed and adopted by Respond- ent. Respondent admits that on that date it refused to rec- ognize Local 100 and also refused to apply and enforce the collective-bargaining agreement. E. The Nature of the Restaurant There was extensive testimony concerning the differ- ences between the Red Coach Grill and the El Torito restaurant. The major differences are that (a) the Red Coach Grill served an American cuisine in a leisurely, club atmosphere, catering to an older clientele consisting of business people, whereas the El Torito restaurant served a Mexican cuisine in a bright, light, tropical motif to a younger and family clientele who spent less time eating; (b) local decision making at the Red Coach Grill resided in the manager, while headquarters in Massachu- setts exercised control generally, whereas the general manager and the department managers at El Torito were responsible for decisions at the location; (c) more exten- sive training was given to El Torito supervisors and em- ployees; (d) the Red Coach Grill employed a full com- plement of 80 to 90 employees and 3 supervisors, where- as the El Torito employed 180 to 200 workers and 10 su- pervisors; (e) there were differences in job classifications between the two operations; (f) there are some slight dif- ferences in the rate of pay for employees; $ (g) the ratio of full-time to part-time employees is different—the Red Coach Grill employed 11 part-time and 61 full-time workers; on 5 March 1985, El Torito employed 52 part- time and 139 full-time employees; and (h) the job func- tions of the various employees differ somewhat between the two operations. 7 Interviews of the former Red Coach Grill employees, which were concluded about 9 February, thus were given priority over interviews with employees who had not been employed there. The interviews with new employees were held after 9 February. 8 For the period 5 March 1985, the host/hostess, server, server assist- ant, bartender, cook, and prep cook at El Torito received $4-4.50; $2.35 (including tip credit), $3.35; $3.50; $4.50-5.50, and 54-4.25 per hour re- spectively. In that period the host/hostess, waiter/waitress, bus person, bartender, cook and preparation person at the Red Coach Grill received $4.47, $3.02, $3.02, $4.07, $5.47, and $4.72, per hour, respectively. Both operations gave 1-week vacation after 1-year employment and 2 weeks after 2 years; El Torito gave four paid holidays Red Coach Grill gave nine paid holidays. III. ANALYSIS AND DISCUSSION A. Continuity of Representation Respondent relies heavily on Charlie Brown's', 271 NLRB 378 (1984), in arguing that there has been no con- tinuity of representation between Local 6, which repre- sented the Red Coach Grill employees and had a con- tract covering them, and Local 100, the successor in in- terest to Local 6, put in place as a trustee by the Interna- tional Union. Charlie Brown's supports Respondent's position. The Board there stated explicitly that: Where a . . . recognized representative changes its organizational structure, the Board must deter- mine—to issue . . . a bargaining order—whether the altered organization is still the employees' repre- sentative. Our primary concern in such cases is, whether the change in structure reflected the em- ployees' desires. [Supra at 378.] The Board, in dismissing the election petition, found that (a) the election occurred before the division of Local 6 into Locals 6 and 100; (b) no employee had an opportu- nity to participate in the decision to divide the Unions; and (c) the showing of interest in the pre-1983 Local 6 did not demonstrate employee interest in the present, di- vided Local 6. The Board cited Newspapers, Inc., 210 NLRB 8 (1974), in support of its reasoning. In that case, it found that a majority of the employees had voted in favor of a merger and had later signed authorization cards for the merged union. None of those facts are present here. It was stipulated here that no election took place among the employees to determine whether they wished to be represented by the new Local 100, and there was no affirmative evidence that any authorization cards were signed in behalf of that Union.9 I am bound by the Board's decision in Charlie Brown's, which addresses the identical unions and the same matter raised here. Thus, the Board expressly found that the di- vision of Local 6 was a structural change that (a) raises a question about continuity of representation and (b) re- quires a showing that it reflects the employees' desires. The Board found that (a) no employee participated in the decision to divide the Unions into Locals 6 and 100 and (b), moreover, a showing of interest in the prior Local 6 did not demonstrate employee interest in the present Local 6. The Board concluded that "since there is no record of the employees' desires, we find [factors concerning continuity of representation] immaterial to the ultimate conclusion that there is no continuity." The General Counsel does not directly address this issue, and did not assert or attempt to prove that Local 100 possessed authorization cards from a majority of the employees. Rather, the complaint alleges and the Gener- al Counsel asserts that Local 100 is the exclusive, majori- ty representative of the unit employees by virtue of Re- spondent's May 1983 recognition of the Union and its agreement to assume and adopt the collective-bargaining 9 See discussion, infra, of the stipulation concerning the procedure used for dues-deduction authorizations. 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD agreement. Although I find that Local 100 enjoyed an ir- rebuttable presumption of majority status when Respond- ent refused to bargain, this does not answer the question. The Board in Charlie Brown's and in other cases has placed primary importance—almost as a condition prece- dent—on employee agreement with the change in repre- sentation. See State Bank of India, 262 NLRB 1108 (1982). There is no evidence here that any employees voted, at any time, to accept the change in structure. Counsel for Local 100 and Respondent had an "under- standing" that in May 1984, all members of then trusteed Local 100 voted to elect officers and adopt the bylaws of Local 100, and in June 1984, Local 100 came out of trusteeship and became an independent local. This "un- derstanding" does not prove that the May 1984 election concerned the issue of the change in representation from Local 6 to Local 100. The change in structure had al- ready taken place, and the election of officers and adop- tion of the bylaws were routine matters that were, in effect, a fait accompli, to the original structural changes in the Unions. Although the election and adoption might be viewed as evidence that employees had an interest in Local 100, there is no evidence as to whether the em- ployees in this unit, all of whom had then been on layoff for 5 months, voted." The General Counsel asserts that employees' interest in Local 100 is proven by the fact that authorization cards were signed by a majority of employees. He uses the following analysis It was stipulated that the procedure in completing the two-part dues-deduction and membership authorization card is as follows: The employee completes both parts of the card. The card is then returned to the union. The Union tears off the tissue of the dues checkoff authoriza- tion card, transmits the document to the respondent in this case and keeps the carbon copy from which the tissue was removed plus the union membership card. . . . The document described above was a Local 100 card. Therefore, 41 of the 72—a majority of the Red Coach Grill unit employees—had dues checked off by Respond- ent and transmitted to Local 100 on 31 December 1983, when that restaurant closed. A finding could therefore be made that, based on the stipulation, the 41 employees who had dues deducted must have completed both parts, which included the membership application, of the two- part form and, accordingly, Local 100 had authorizations from a majority of the unit employees when the Red Coach Grill was closed. However, Respondent argues that no such fmding may be made because (a) it pos- sessed only 19 dues-deduction authorizations and there- fore deducted dues from a majority of the unit in a "uni- lateral and unauthorized" manner and (b) Local 100 did not produce any membership application cards at the hearing. 10 It should be noted that the Board has found a vote on the issue of a merger appropriate and valid 2 years after the event Safeway Steel, 173 NLRB 311 (1968). I am thus faced with the following: (a) The General Counsel's argument that the stipulation implies that a ma- jority of unit employees executed authorization cards and therefore expressed an interest in being represented by Local 100 after the iiriposition of the trusteeship; (b) Re- spondent's admission that it deducted dues from a major- ity of the unit without proper authorization notwith- standing its (c) agreement set forth in the contract which it assumed and adopted, that it could deduct dues "pro- vided that each employee from whom such dues. . . are deducted shall submit to the Employer a written authori- zation"; and (d) the iionproduction of the authorization cards. In considering this issue, I have also considered the facts that for a period of 1 year from January to Decem- ber 1983, without apparent complaint" employees: (a) dues were deducted; (b) received representation by Local 100; and (c) received the contractual wages and benefits. Moreover, Respondent, for a period of 8 months, from May to December 1983, (a) recognized Local 100 as the successor in interest to Local 6 and as the collective-bargaining agent for its employees, (b) agreed to assume and adopt the contract, between the Red Coach Grill and Local 6, (c) honored and applied the terms of the contract, and (d) deducted dues from the pay of its workers and transmitted them to Local 100. I have also considered the issue of estoppel and waiver. In Jolie Belts Co., 265 NLRB 1130, 1136 (1982), the Board, in concluding that the respondent violated Section 8(a)(5) of the Act, found that although there was no evidence that all eligible employees were properly notified or provided an opportunity to vote on a merger of the Los Angeles Joint Board (LAJB) into the District Council Respondent here cannot now attack the validity of the merger because the evidence fully demonstrates that, subsequent to the merger, Respondent entered into a collective-bargaining relationship with Dis- trict Council as the continuation of LAJB. Thus, on August 8, 1979, Respondent and District Council entered into a modification of a portion of the bene- fit provisions of the LAJB agreement and, more im- portantly, specifically agreed that the LAJB con- tract, including the modification, would remain in full force and effect between the parties. Therefore, respondent recognized, at least at this point, the District Council as the continuation of LAJB and negotiated with it as such. Accordingly, I find, in these circumstances, that District Council is a con- tinuation of LAJB and is the successor to LAJB's representational rights with Respondent. Here, too, subsequent to the trusteeship, (a) Respond- ent expressly recognized Local 100 as the successor in interest to Local 6, (b) agreed that Local 100 succeeded " There is no evidence that the employees did not wish to be repre- sented by Local 100. Climax Molybdenum Co., 145 NLRB 508, 509 fn. 1 (1964), relied on by the Board in Charlie Brown's. There was testimony that no grievances were filed from May to December 1983. EL TORITO-LA FIESTA RESTAURANTS 527 to the representation rights of Local 6 with respect to the unit employees at the Red Coach Grill, and (c) amended the collective-bargaining agreement. In Knapp-Sherrill Co., 263 NLRB 396 (1982), the Board has also held that an employer may be estopped from challenging the procedures employed in a merger, and by recognizing the successor union, waived its right to challenge such procedures. Here, as in that case, Re- spondent had knowledge of the change in representation. Martin Casey, Respondent's official, stated that when he signed the agreement recognizing Local 100, he believed that it was paperwork to reflect a transfer in name from one union to another. He added, however, that he was not aware that a question would be raised concerning continuity of representation between Locals 6 and 100. He first became aware of that at the hearing. Thus, it cannot be said that Respondent "intentionally and volun- tarily relinquished its rights" in this respect, which is critical to finding estoppel and waiver. Respondent thereafter dealt with Local 100 as its employees' bargain- ing representative. It forwarded dues payments to Local 100 and honored the collective-bargaining agreement that it assumed and adopted. Respondent refused to bar- gain with Local 100 on 5 March 1985, when it demanded that Respondent recognize and honor its contract that was still in effect. Until that time, Local 100 apparently had no indication that Respondent believed that it was not the bargaining representative of its employees. 12 It is clear that Local 100 relied, to its detriment, on Respondent's recognition. It took no apparent action during the 8-month period until the Red Coach Grill was closed, to establish its status as the collective-bargaining representative of Respondent's employees. Had Respond- ent earlier challenged the manner in which Local 100 was created, the Union could have obtained (a) the nec- essary vote of the union members 13 and (b) authorization cards from a majority of the employees. Rather, by chal- lenging the creation of Local 100 after the 14-month clo- sure of the Red Coach Grill, and when El Torito opened with only 8 of the former Red Coach Grill workers out of a total complement of 180 to 200, Respondent created a barrier to Local 100's ability to take either of those ac- tions.14 However, inasmuch as I have found that Respondent did iiot intentionally and voluntarily relinquish its rights to object to the change from Local 6 to Local 100, I cannot find that it is estopped from challenging the trust- eeship or has waived its rights to challenge it. In sum, therefore, after careful consideration of all these matters, I return to the Board's holding in Charlie Brown's, about which I am bound, and about which I must give overriding weight because of the identity of unions in issue. The Board expressed its "primary con- cern" as being "whether the change in structure reflect- 12 In this connection I credit the uncontradicted testimony of Union Agent Campbell that in January 1984, after the close of the Red Coach Grill, David Villareal, Respondent's director of labor relations, told him and the union president that Respondent recognized the contract, 12 NLRB v. Financial Institution Employees, 475 U.S. 192 (1986). 14 On 29 April 1985 a Local 100 agent asked five or six nonsuperviso- ry employees of Respondent if they were interested in being represented by the Union. ed the employees' desires." No such vote took place there or here. Moreover, I simply cannot find, based on the evidence set forth above, that employees expressed an interest in Local 100. As stated in State Bank of India, supra, 262 NLRB at 1118: Unquestionably, proof of employee support for a merger gathered after the effectuation of the merger can be germane to the issue of what constitutes the true desires of the employees, but such expressions, whether by way of authorization cards or willing- ness of employees to strike will only be considered by the Board in cases in which the true desires of the employees are ascertainable because all of the important requirements of due process, such as proper notice, adequate discussion of the issues and voting by a proper and suitable method, were com- plied with. I accordingly must find that no continuity of represen- tation between Locals 6 and 100 occurred, and that Re- spondent did not unlawfully refuse to bargain with Local 100.1s B. Continuity of the Unit In the interest of completion, and in the event the Board does not agree with me on the issue of continuity of representation, I shall discuss the remaining issue. The General Counsel asserts that the 31 December 1983 closing of the facility was temporary and not per- manent and, accordingly, the bargaining unit remained intact during the period of such closing for renovations. The General Counsel defends the validity of the contract on the ground that, although it was originally for a term of 5 years, Respondent's adoption and assumption of it was effective from 1 May 1983 to 15 January 1986, a period of less than 3 years. He therefore contends that during the period of that contract an irrebuttable pre- 15 have also considered the following: (a) The International Union apparently followed its own constitution, which does not require employee participation, in imposing the trustee- ship. (b) Although there is no evidence concerning why the trusteeship was imposed, the International Union's constitution provides that a trustee may be appointed when, inter &ha, "it is necessary for the purpose of cor- recting corruption or financial malpractice, assuring the performance of collective bargaining agreements or other duties of a bargaining repre- sentative, restoring democratic procedures, or otherwise carrying out le- gitimate objects." If the purpose for imposing a trusteeship and creating Local 100 was to implement one of those objectives, then it would seem to be in the na- tional interest to encourage the imposition of trusteeships in appropriate cases See the report of the President's Comnussion on Organized Crime, issued on 14 January 1986. International unions would not be encouraged to impose a trusteeship when, in cases such as tins, a consequence of the imposition of a trustee- ship is the loss of bargaining rights, in which an employer recognized the new local union and adopted, assumed, and honored its contract for 8 months until the facility was closed. Of course the answer to this is that a proper vote could still be taken prior to the imposition of such a trusteeship, and an informed electorate could be expected to vote for such a structural change. But in cases of an "emergency," in which the International constitution provides for the im- position of a trusteeship, time for a vote that will meet the Board's stand- ards of due process may not be available. State Bank of India, supra. 528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sumption existed that Local 100 was the majority repre- sentative of the employees, and Respondent violated the Act by withdrawing recognition from Local 100 and re- fusing to honor and apply the contract during its term. Respondent argues that pursuant to the Board's con- tract-bar rules it was justified in refusing to continue rec- ognition of Local 100. It asserts that the changed nature of operations, from a Red Coach Grill to an El Torito restaurant, after an indefinite period of closing, and the employment of new employees removed the contract as a bar, and permitted Respondent to refuse to continue recognizing the Union. The Board has recently stated in Sisters of Mercy Health Corp., 277 NLRB 1353, 1353-1354 (1985), that: It is well established that a union enjoys an irre- buttable presumption of majority status during the term of a collective-bargaining agreement. An em- ployer, therefore, does not have the right to with- draw recognition of a union during this period on the basis of a good-faith doubt, or even actual proof of loss of a union's majority status. Inasmuch as the contract between the Respondent and Local 417 had not expired, the Respondent's good-faith doubt of Local 417's majority status was not a defense to its refusal to recognize Local 417's representative status. I accordingly fmd that Respondent's assumption and adoption of the collective-bargaining agreement effective 1 May 1983 created a new contract between the parties, effective from 1 May 1983 to 15 January 1986. I further find that until 15 January 1986, Local 100 enjoyed an is- rebuttable presumption of majority status. I also fmd that the bargaining unit remained intact during the period of the closing of the facility, from 31 December 1983 to 5 March 1985: (a) When Respondent assumed and adopted the collec- tive-bargaining agreement, it agreed to recognize the Union until its expiration on 15 January 1986, and at that time it knew that it intended to close the Red Coach Grill in December 1983 and open an El Torito restau- rant. Respondent, therefore, was aware that continued recognition of the agreement and employment of the bar- gaining unit employees was expected. (b) Red Coach Grill Manager Conley told Union Agent Campbell that the laid-off employees could later reapply for and return to their jobs when the El Torito restaurant opened. (c) In August and December 1984, and in January 1985, Respondent's director of personnel sent letters to the laid-off employees concerning the new restaurant. The letters advised the former workers of the progress of the renovations of the new restaurant and in the August letter advised them that they would be notified as to their "recall procedures." The letters generally sought to interest the employees in working for the El Torito restaurant, or at least being interviewed for a po- sition. Of It& 72 employees on the payroll on 31 Decem- ber 1983, 145 returned reply cards (indicating an interest in working at El Torito), or otherwise applied for a posi- tion. Of those 45, 32 were interviewed, and 14 accepted positions that were offered. Only 8 of the 14 actually began work at El Torito on 4 March 1985. I do not agree with the General Counsel that the above procedure was a "recall." The laid-off employees were not recalled to work. They were not told to report to work on a specific date. Rather, they were all subject to employment interviews by Respondent. Nevertheless, the appropriate inquiry is whether the employee had a reasonable expectancy of recall in the near future. In Atlas Metal Spinning Co., 266 NLRB 180 (1983), the Board stated that the factors used to determine whether an employee possesses such an expectancy include the employer's past experience and future plans, the circum- stances of the layoffs, and what the employee was told about the likelihood of recall. Here, there is no evidence of the Respondent's past experience, but its future plans included the opening of a restaurant 5 to 6 months after the closure. In addition, the employees were told that they could apply for jobs, and Respondent's official noti- fied all of them during the layoff concerning jobs and used the term "recall procedures." Under these circum- stances, I fmd that all the laid-off employees had a rea- sonable expectancy of recall. Respondent argues, inter alia, that the substantial change in operations from a Red Coach Grill to an El Torito restaurant, the change and increase in size of the employing unit, and the different job classifications before and after the change, permitted it to refuse to rec- ognize the Union or to honor the collective-bargaining contract. I do not agree. To be sure, there has been a change in the style of the restaurant—from a traditional American-type diner to an exotic, fast-paced Mexican restaurant. As stated in Rice Food Markets, 255 NLRB 884, 886 (1981): [W]hether Respondent should have continued to recognize the Union depends on whether the changes effected were sufficient to remove those employees from the bargaining unit represented by the union. . . . Although the style and method of performing the work has changed, the function of the employees in- volved remains essentially the same. Bay Shipbuilding Corp., 263 NLRB 1133, 1139 (1982). The function of the workers was and is the efficient service of food and drink to customers. Although addi- tional training may be necessary for some of the job clas- sifications, in terms of' the Respondent's marketing sales approach, and use of different equipment, there was no evidence that the Red Coach Grill employees could not have been quickly and easily trained in the new proce- dures. In fact, such laid-off workers were given prefer- ence in receiving interviews before others because of their "experience and interest." In this case, there is no doubt that there have been changes in the job duties and tasks of the af- fected employees. Nevertheless, the similarities be- tween the work performed by these employees before and after the changes . . . far outweigh the differences effected by those changes. The function EL TORITO-LA FIESTA RESTAURANTS 529 of loftsmen in both manual and computer lofting is identical and the differences arise only in the manner in which this function is carried out. [Bay Shipbuilding, supra at 1140.] The fact that only 8 of the former Red Coach Grill employees became employed in the 180-200 employee El Torito unit is not sufficient to permit Respondent to withdraw recognition from the Union and refuse to honor its contract because Local 100 enjoyed an irrebut- table presumption of majority status on 5 March 1985 by virtue of its unexpired collective-bargaining contract. Conclusion In view of my findings that there was no continuity of representation between Local 6 and Local 100, I must conclude that Respondent did not refuse to bargain with Local 100 in violation of the Act. CONCLUSIONS OF LAW Respondent has not violated the Act in any respect. [Recommended Order for dismissal omitted from pub- lication.]