Captain'S Table

22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Nagio Restaurant, Inc. d/b/a Captain's Table and Local 6, Restaurant and Club Employees and Bartenders Union, AFL-CIO. Case 2-CA- 18465 June 9, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On March 8, 1983, Administrative Law Judge Harold B. Lawrence issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs. 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, findings,' and conclusions only to the extent consistent with this Decision and Order.2 The judge found that in negotiations for a con- tract with the Union, the Respondent failed to bar- gain in good faith in violation of Section 8(a)(5) and (1) of the Act by engaging in delay and formu- lating and adhering to proposals designed to stall negotiations , avoid reaching agreements , and un- dermine the Union as bargaining representative. We reverse, finding that on the facts of this case the Union did not test the Respondent's willingness to bargain and that the Respondent's conduct cannot therefore be found unlawful.3 The operative facts follow. On June 22, 1981,4 the Respondent agreed to recognize Local 6 (the Union) as the collective-bargaining representative of its employees previously represented in two sep- arate units by two locals that at some point had merged into Local 6. The Union waited 6 weeks before contacting the Respondent about a date to meet and bargain. The parties met, as agreed, on August 18. The Union presented its standard form contract, the provisions of which were previously i 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 2 We deny as untimely the General Counsel's request for backpay to remedy a unilateral reduction in wages made by the Company following the parties' final bargaining session No violation based on this conduct was alleged in the complaint, and the General Counsel sought relief with respect thereto for the first time in exceptions to the judge's decision The Company was therefore never given an opportunity to litigate this issue s See generally Times Publishing Co, 72 NLRB 676, 683 (1947) * All dates are in 1981 , unless otherwise indicated. included in the contracts between the Respondent and the now merged locals. The Union also pre- sented economic demands. The Respondent indi- cated that the Union's demands were too high and that the Respondent would review the proposed contract and get back with the Union. The Respondent's negotiators, President Biagio Musso and his counsel, Pinto, met some time there- after and worked on counterproposals. In late August or early September, Union Negotiator Darwin Lanyi called Pinto to arrange a second meeting . Pinto indicated the earliest date available for himself and Musso was late October. Lanyi sought an earlier meeting but agreed to the Octo- ber date proposed by Pinto. The October 22 meeting lasted 3 hours. Pinto opened by stating that the Union's proposals were far too expensive. He reviewed each provision of the Union's standard form contract and proposed substantial deletions or revisions. Action on the Union's proposed "Present Practice" clause was deferred pending resubmission of a list from the Union enumerating the practices, privileges, and benefits the clause would obligate the Respondent to maintain.5 Concerning economic matters, Pinto said the Respondent's terms "would be a step back- wards," that there would be no increase in pension or insurance contributions, and that, if anything, there would be a 25-percent reduction in wages. Pinto said the Respondent was not prepared to give specific counterproposals to the Union's eco- nomic demands. The meeting closed with the par- ties agreeing to meet again in November. The November 17 meeting was held as sched- uled. Lanyi indicated that the Respondent's sug- gested changes to the Union's standard form con- tract were, in the majority, out of line and unac- ceptable. The Union came without the list of "Present Practices" the Respondent had requested. The Respondent did not have the specific econom- ic counterproposal sought by the Union. In fact, neither side made concrete proposals and no progress was made. The fourth bargaining session, scheduled and held December 22, lasted about 2 hours. The Union again indicated that the Respondent's re- quested text changes to its standard form contract were unacceptable. Lanyi admitted that there was some give and take on these provisions. According to Lanyi, the Respondent made a "big thing" of wanting the Union to provide the list of "Present Practices." Lanyi said the employees would know ' Although not discussed by the judge, this fact is reflected by Pinto's notes of the October 22 meeting, which Lanyi testified accurately reflect the changes proposed by the Respondent. 289 NLRB No. 6 CAPTAIN'S TABLE this information better than he would and he did not have such a list. The Union adhered to its pro- posed wage increases and renewed its request for economic counterproposals. The Respondent said it was losing money, that it could not come up with the increases, and asked for a 50-percent wage cut for all employees.6 Either at or after the December 22 meeting, the parties agreed to get together after the holidays. No meetings occurred during the month of Janu- ary, however, due to Musso's illness. Thereafter, neither party attempted to contact the other.' 6 The judge found the Respondent's December 22 economic proposal to be "spurious" in nature and independent evidence of a lack of good faith because it required a wage reduction that would have put the em- ployees below the legal minimum wage . The record, however, is far from clear exactly what hourly wage rate employees in each unit classification earned or what they would receive as a result of the Respondent's wage reduction proposal. Even where dollar figures are mentioned, there is no indication whether these figures include tips , gratuities, and meals, all rel- evant to the determination of the hourly wage rate of the subject employ- ees See generally Fair Labor Standards Act, 29 U.S.C. §§ 201-219. Fur- ther, the record fails to support the judge's finding that "[t]he parties at the hearing accepted it as a given proposition" that the Respondent's pro- posed reduction would have brought employees below the legal mini- mum wage The subject of minimum wage was raised at the hearing by counsel for the General Counsel, who asked Musso if he realized that "if the union agreed to the proposed cut or wages, that it would have put the wages of the employees below the minimum wage?" Musso said he was being advised by counsel that "I was paying for Darwin Lanyi, that he took the last Labor Department minimum; that's what he could do." Counsel for the General Counsel then sought clarification by asking Musso whether he was saying that "if the 50-percent cut would have put the wages below the minimum wage scale, as required by the govern- ment, you were not aware of it." The Respondent's counsel objected to this question on the grounds that Musso had testified to what his lawyer advised him. The judge sustained the objection, noting, "I think the point is made." No further testimony regarding minimum wage was elicited by any party. Although counsel for the Charging Party asserted in summa- tion, as does the General Counsel in her brief to the Board, that the Re- spondent's wage offer was below the legal minimum, we do not find the above testimony, the only evidence of record on the subject , sufficient to support a finding that the Respondent's wage offer would have brought employees below the legal minimum . In addition, Musso's testimony that the Respondent's proposed 50-percent reduction would have put employ- ees on a par with the average wage paid by nearby restaurants is uncon- tradicted On these facts we find the evidence fails to establish that the Respondent proposed reducing employees' wages below the legal mini- mum 9 The judge found that following the December 22 bargaining session, Lanyi testified that he called Pinto to set the parties' next meeting date, that Pinto promised to talk to Musso and get back with Lanyi to sched- ule a date to resume negotiations; and that when Pinto failed to do so by January 13 , the Union, believing the Respondent was "dragging its feet" in setting up a fifth meeting, filed the charge initiating the instant pro- ceeding. Contrary to the judge, the record establishes that the charge was filed on December 2 after the parties' third bargaining session. Fur- ther, Lanyi did not testify that he called Pinto after the fourth and final December 22 meeting Rather, at one point, when Lanyi was claiming that the December 22 meeting never occurred , he testified that he might well have had a telephone conversation with Pinto in early January, but he "didn't know " Later, when Lanyi was recalled and testified that the December 22 meeting did in fact occur, he denied calling Pinto after the December 22 meeting . Accordingly, Lanyi's testimony does not support a finding that the charge was precipitated by the Respondent 's dragging its feet in setting up a fifth meeting. Rather, it supports our finding that after plans for a January meeting were abandoned due to Musso's illness, the parties failed to contact one another, and thus must share responsibil- ity for the fact that a fifth meeting never occurred. 23 We do not agree with the judge that these facts show the Respondent breached the obligation it shared with the Union under Section 8(d) of the Act to "meet at reasonable times and confer with respect to wages, hours, and other terms and con- ditions of employment." The judge found that the Respondent exhibited "inordinate delay" in coming to the bargaining table by virtue of its request that the second bargaining session be held 1-1/2 months after the date of the Union's call to arrange such a meeting. The Respondent told the Union its pro- posed date was the earliest available for its only two negotiators. The Union, which itself had waited an equivalent period after the Respondent agreed to bargain before attempting to arrange the parties' first meeting, did not contest the explana- tion offered and, in fact, acceded to the meeting schedule the Respondent proposed. Although we do not encourage such prolonged delay between negotiating sessions, particularly one so meagerly explained, we do not find this single unchallenged request to schedule a meeting on the first date all negotiators were available supports the judge's finding of inordinate delay by the Respondent. Also lacking evidentiary support is the judge's finding that the Respondent engaged in delay at and after the second meeting. Like the first two meetings, the third and fourth proceeded without delay or rescheduling by either side. At the second meeting the Respondent made counterproposals to the Union's standard form contract. The third meeting was devoid of proposals by either side. By the close of the fourth meeting the Respondent had yielded on some of its proposed changes to the Union's standard form contract and had made a specific wage proposal as the Union had requested. For its part, the Union had yielded on some of the Respondent's proposed changes. The Union had not, however, compiled the list of "Present Prac- tices" important to, and repeatedly sought by, the Respondent. Following the fourth meeting and Musso's January illness, neither party contacted the other to pursue negotiations further. On these facts, no charge of unlawful delay can legitimately be levied against the Respondent. Nor do we find that when negotiations ended prematurely through the default of both parties after the December 22 meeting, the Union had suf- ficiently tested the Respondent's proposals to permit us to assess the latter's willingness to bar- gain in good faith. In this regard, the judge's find- ing that the Respondent rigidly adhered to its pro- posals for substantial contract revisions and wage reductions predictably unacceptable to the Union is not supported by the record. The Respondent's proposed revisions to the standard form contract 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD made at the second meeting were criticized as being "out of line" by the Union when the parties next met. The Union made no counterproposals until the fourth meeting, however, when, as the Union admits, some give and take occurred. At the first negotiation session, the Respondent ' had termed the Union's demand for annual wage in- creases too high. The Respondent's first specific counterproposal regarding wages, given on De- cember 22, was a starting point for future negotia- tions. The Respondent neither stated nor suggested by its conduct that it intended its first wage offer to be its last." To the contrary, it is uncontested that the Respondent's wage offer was on the table, awaiting a response, at the close of the parties' fourth and final bargaining session. An anticipated fifth meeting, at which wages and other outstand- ing issues might have been discussed, never materi- alized due to the mutual neglect of the parties. The bargaining process in this case reveals that the normal give and take of negotiations had just begun when the Union, soon after the parties' ini- tial exchange of proposals, filed the instant unfair labor practice charges. Only one more meeting fol- lowed before the parties drifted apart, leaving the Respondent's proposals on the bargaining table. Under these circumstances, and absent evidence that the Respondent engaged in any unlawful con- duct away from the bargaining table that might have affected the negotiations, we cannot find the facts establish that the Respondent exhibited an un- willingness to reach agreement. Accordingly, we shall dismiss the complaint. tional Labor Relations Act (the Act), by reason of the Respondent's alleged failure to bargain collectively in good faith with the representative of its employees. The case is based on the contention that, though the Re- spondent met with the Union for negotiations on several occasions, it did not bargain in good faith with the inten- tion of reaching an agreement, as evidenced by the fact that the Respondent made proposals calling for the elimi- nation of numerous provisions contained in earlier collec- tive-bargaining agreements that Respondent had had with predecessor unions, the making of unreasonable wage counterproposals, and delaying of the negotiations. The Respondent's answer denies all allegations of wrongdoing and statutory violation and places in issue the jurisdiction of the National Labor Relations Board in this case. The Respondent alleged as a first affirmative defense that employees in another restaurant owned by the owner of Respondent had rejected Local 6 as their bar- gaining agent in a Board -supervised election and that the instant action was instituted after filing of a petition for an election, by the employees of the Respondent without knowledge or participation of Respondent's management. A second affirmative defense alleged that each of the res- taurants does less than $500,000 gross annual volume. The parties were afforded full opportunity to be heard, to call, examine and cross-examine witnesses , and to in- troduce relevant evidence. Posthearing briefs have been filed on behalf of the General Counsel and on behalf of the Respondent. On the entire record and based on my observation of the demeanor of the witnesses and the manner in which they gave their testimony, and after consideration of the briefs submitted, I make the following FINDINGS OF FACT ORDER The complaint is dismissed. 8 Musso in fact testified that the 50-percent wage cut was proposed to see how low the Union would go and where the parties were going to meet He indicated that the Respondent was willing to give more and awaited the Union's response Haywood E. Banks, Esq., for the General Counsel. William P. Maloney, Esq. (Perini, Maloney & Gottlieb), of New York, New York, for the Respondent. Rochelle L. Roth, Esq., of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. This case was heard before me on September 30, 1982, at New York City. The charge was filed on December 2, 1981, by Local 6, Restaurant and Club Employees and Bartenders Union, AFL-CIO (the Union). On January 13, 1982, a complaint and notice of hearing was issued alleging violations of Section 8(a)(1) and (5) of the Na- I. JURISDICTION In its answer, Respondent admits that it and Musso's 860-2 Rest., Inc. are corporations wholly owned by Biagio Musso, which operate seafood restaurants in New York City at 410 Avenue of the Americas (Captain's Table) and at 860 Second Avenue (Musso's), respective- ly, and that both are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent also admitted, and stipulated at the hearing, that the aggregate purchases made by each res- taurant from points outside New York State exceeded $10,000 per year. Respondent disputed the Board' s juris- diction in this case, however, on the ground that the businesses are separate and independent entities. It al- leged that each restaurant's gross receipts were less than $500,000 per annum. Although the Respondent's answer is unclear and seems to read as an admission on this point, Respondent established at the hearing that Re- spondent's gross receipts for the fiscal year ending August 31, 1982, had amounted to $337,623 and that its annual gross receipts in the preceding year had been only slightly higher, and Respondent argued that this had to be considered independently of the gross receipts CAPTAIN'S TABLE of Musso's, which had amounted to $1,099 ,841 for the fiscal year ended October 31, 1981. The factual issue is therefore squarely presented whether the management of these enterprises is charac- terized by the kind of centralized control of labor rela- tions and other incidents of common or integrated oper- ation that warrant consideration of the aggregate income of both enterprises in determining whether jurisdictional requisites have been met. The important factors are inter- relation of operations, common management, centralized control of labor relations, and common ownership.' Cen- tralized control of labor relations has long been regarded as the critical factor.2 Musso has operated Captain's Table since 1971 and Musso's since 1977. The purchase of Musso's was con- summated by taking title in the name of Nagio Restau- rant, Inc., the Respondent, which as part of the purchase price assumed a security agreement covering the restau- rant equipment. Subsequently, because his accountant changed his mind about how the transaction should be structured, Musso purchased all the stock of the owning corporation, Musso's 860-2 Rest ., Inc. for $30,000 pay- able by a series of notes over the course of several years. Each restaurant has its own manager, who concerns himself with the details of daily operation . Musso spends his time at Musso's. That restaurant receives its supplies from overseas and from the Fulton Fish Market. It has 18 employees and is open Monday through Friday from noon to 3 p.m. for lunch and from 5 to 11:20 p.m. for dinner. On Saturday it is open for dinner only. Captain's Table has had a complement of 12 employees since its in- ception. It is closed on Monday instead of Sunday, and is open from noon to 11 p .m. on the other six days of the week. Musso's accepts American Express, Visa, and Master Charge credit cards, while Captain's Table ac- cepts Visa, Master Charge, and Diners Club. The bank accounts, payrolls, insurance policies,3 and liquor li- censes are separate. The two salaried managers operate independently of each other and there is no interchange of personnel between the two restaurants . Each restau- rant pays for its own deliveries. Despite this superficial veneer of independence, how- ever, it is apparent that Biagio Musso is the controlling influence in the operation of each restaurant . He is the sole stockholder of each corporation and he and his wife are the sole directors and officers. The prescribed days and hours of operation have never been varied by the local managers . Musso testified that slight fluctuations in the number of employees at Respondent 's restaurant would be left to managerial discretion , since the manag- ers hire and fire personnel, but any substantial change would have to be cleared with him . At Musso's, the manager and Musso jointly hire and fire employees and determine the number needed. Mrs. Musso signs checks for payment of bills of both restaurants from their sepa- rate bank accounts One accountant services both corpo- rations. A statement of joint control is incorporated in ' Radio Union Local 1264 v. Broadcast Service, 380 U S 255, 256 (1965) 2 Speedee 7-Eleven, 170 NLRB 1332, 1334 ( 1968), Atwood Leasing Corp, 227 NLRB 1668 , 1669 (1977) 8 There is no evidence whether they employ the same or different in- surance brokers 25 the tax returns of both corporations pursuant to regula- tions of the Internal Revenue Service. Musso's testimony left no doubt that he has complete control of labor relations for both restaurants. The re- spective managers have never participated in the negotia- tion of collective-bargaining agreements covering the restaurants' employees; this has been handled solely by Musso. Musso entered into collective-bargaining agree- ments with union locals that were predecessors of Local 6, and a subsequent agreement recognizing Local 6 as the exclusive bargaining representative of Respondent's employees after the merger of those unions into Local 6. It was conceded that although the manager at Captain's Table is not expressly required to do so, he does in fact consult with Musso from time to time regarding the as- signment of work to employees at that restaurant, work hours of particular employees , and assignments to par- ticular work stations . These are precisely the types of matters that would normally be left to the sole discretion of a manager on the spot. Musso also testified that he personally decided to cut wages of employees at Cap- tain's Table because it had been losing money for 2 years and that he personally explained the cut to the employ- ees, citing wage scales in neighboring restaurants. In ad- dition, Musso continued to draw $26 ,000 per annum as chief executive officer, which I regard as considerably weakening Musso's contention that his role in the oper- ation of the restaurant was almost nil. I conclude from this evidence that Musso was inti- mately involved in the management of Captain 's Table notwithstanding the presence of a manager on the scene. In addition, it is uncontroverted that ultimate authority with respect to its management rested with Musso. On the basis of the proven common ownership, common financial control, common direct and ultimate control of operations by Musso , and Musso's admitted control of labor relations for both restaurants, I find that they constitute a single enterprise for jurisdictional pur- poses and that their aggregate receipts bring them within Board jurisdiction .4 I find that at all material tunes here, Respondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that at all times material here the Union has been a labor organization within the meaning of Section 2(5) of the Act. The employees at Captain's Table had been represent- ed by two unions, with which Nagio Restaurant, Inc. en- tered into collective -bargaining agreements . Local 22, Chefs, Cooks, Cafeteria, Food, Beverage & Service Em- ployees Union, AFL-CIO represented chefs, relief cooks, and dishwashers employed by the restaurant. Local 1, Restaurant Employees Union, affiliated with Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO represented employees in a unit described as follows: 4 Swift Cleaners, 191 NLRB 597 ( 1971), Family Laundry, 121 NLRB 1619(1958) 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All captains, waitresses, waiters, busboys, bus- girls, cashiers, floor walkers, hostesses, food check- ers, dining room employees, employed at the restau- rant, excluding all other employees, guards and su- pervisors as defined in the Act. Local 1 and Local 22 subsequently were merged into Local 6. Local 6 filed an unfair labor practice charge against the Respondent. On June 22, 1981, the proceed- ing was settled by means of an agreement whereby Re- spondent agreed to bargain with Local 6 on request as the exclusive collective-bargaining representative "of our employees with respect to their rates of pay, wages, hours of employment and other terms and conditions of employment." That agreement defines the appropriate bargaining unit involved in this case, which in any event would comprise the units defined in the earlier collec- tive-bargaining agreements between the Respondent and the two merged unions. III. THE REFUSAL TO BARGAIN IN GOOD FAITH A. History of Negotiations Representatives of the Respondent and the Union met for the purpose of negotiating a new collective-bargain- ing agreement on four occasions, from August through December 22, 1981. All the meetings were at the offices of Respondent's attorney, Pinto. Darwin Lanyi, an ad- ministrative aide employed by Local 6, arranged the meeting of August 18, but it was attended by John F. Leaver, an executive vice president of the Union. Leaver met with Musso and Pinto for about 1 hour. He present- ed them with a proposed standard form contract cover- ing both kitchen and dining room personnel. This con- tract had been drawn up by Local 6 with the object of combining in the Local 6 contract features of the con- tracts formerly used by Local 1 and Local 22. The con- tract was thus a recodification of the terms of the Local 22 contract, covering kitchen workers, the Local 1 con- tract covering waiters, and the Local 6 contract cover- ing bartenders, but while it incorporated many provisions of the earlier agreements, and sought renewal thereof, the contract itself was not one that had been previously seen or signed by Respondent. There is no conflict in the testimony respecting this first meeting. Leaver presented the contract as a propos- al and orally stated a number of economic demands, that Pinto wrote down: a $30 raise for kitchen employees and a $10 raise for dining room employees for each year of what was proposed as a 3-year contract, increases in wel- fare and pension plan, bereavement pay, and vacation and sick leave. No negotiations took place. Musso and Pinto responded by saying that they thought the de- mands were too high, and that they would review the contract and get back to him. No date was set for the next meeting. Musso testified that, following this meeting, he met with Pinto and they worked on counterproposals. In late August or early September, Darwin Lanyi, who had become responsible for further negotiations, telephoned Pinto for a response to the proposals. He re- ceived none and, despite his efforts to fix an early date for negotiations, was unable to persuade Pinto to fix a meeting date earlier than October 22. Pinto insisted that that was the earliest date when both he and Musso could be available. Accordingly, the second meeting took place on Octo- ber 22. Lanyi met with Pinto and Musso for almost 3 hours. According to Musso, Pinto communicated coun- terproposals and presented management's position. Musso testified that he advised Lanyi that he would con- sider changes to the Union's proposals, by which I un- derstand him to mean that he would give serious consid- eration to them in modified form. Lanyi, however, pre- sents a picture of a meeting characterized by unmitigated recalcitrance on the part of Pinto and Musso. He quotes Pinto as stating that the proposals were "far too expen- sive" and depicts his review of the Union's standard con- tract clauses as something akin to putting the pages through a paper shredder: "and he just proceeded to shatter it." Pinto made no economic counterproposals and said nothing other than that the Union's proposals were far too expensive and that Respondent's terms "would be a step backwards." There would be no in- creases in the pension and insurance contributions and there would be a 25-percent reduction in wages. Most of the meeting was spent going through the standard form contract. Pinto wanted to eliminate most of the standard clauses, which according to Lanyi were boilerplate that had been carried over from the earlier agreements to which Respondent had been a party. Pinto marked up a copy of the agreement and also noted the changes he wanted on a yellow pad. (The marked-up agreement and the memorandum of changes are both in evidence.) Lanyi testified that he explicitly asked for counterpro- posals and was told by Pinto that Respondent was not prepared to furnish counterproposals at that time. I have noted that Musso testified that he had worked on coun- terproposals with Pinto prior to the second meeting. It is not apparent whether economic counterproposals were included in their discussions, but Musso also testified that by agreement with Lanyi negotiations respecting the economic provisions were reserved for a later meeting, and this was the reason why no economic proposals were made by Respondent until the fourth meeting. At the conclusion of the second meeting, it was agreed that a third meeting would be held in November. Lanyi, Pinto, and Musso met on November 17. According to Lanyi, whose memory was fuzzy about this meeting, no counterproposals were presented by the Respondent and there was no progress, so they set a date for a December meeting, which never came about. He recalled having told Pinto that he had discussed the suggested changes in the standard contract terms with his supervisor and "that the changes he was proposing were, in the majority, out of line. We were not going to delete all of the things that he wanted out of the standard contract." Lanyi then went on to testify that a further meeting was scheduled for December 22. Pinto telephoned him, however, either on that date in the morning or the day before, and stated that Musso would not be available and that Pinto would get back to him after the holidays. Later, Lanyi changed his testimony and asserted that he CAPTAIN'S TABLE called Pinto on the morning of December 22 to let him know he was on his way to the meeting , whereupon Pinto said he was glad Lanyi called because Musso could not make the meeting, and he could not set an alternate date without conferring with Musso . He promised to contact Lanyi after the holidays. There were no subsequent meetings, according to Lanyi, because the events of December 22, considered with everything else, convinced him that Respondent was dragging its feet. When Pinto failed to call by Janu- ary 13, 1982, the charge was filed. Musso testified that a fourth meeting had in fact taken place on December 22 and had lasted for 2 hours. Musso testified that at the third meeting, on November 17, "Mr. Pinto was asking for certain conditions and Mr. Lanyi did not come up with it." They agreed to meet further on December 22 and in fact did so, from 2:30 to 4:30 p.m. The persons present at this last meeting were Lanyi, Musso, Pinto, and Emil Bonati. Pinto made notes of the meeting, which are in evidence. Musso asserted that counterproposals were made, but his testimony makes it clear that during the fourth meeting , apart from the sug- gestion that the employees take a deep cut in pay, he had no economic counterproposals in mind. He testified that because the restaurant was losing money, he offered a 50-percent cut in pay, but that Pinto at the same time ac- ceded to union demands regarding vacation , sick pay, and holidays. He asserted that he was willing to have further meetings, but he was waiting for the Union to come up with a counteroffer to his proposal for sweep- ing cuts in pay. It was apparent to me that Musso failed to recognize that the burden of making a responsible counterproposal respecting wages was on him, the Union having presented its position on wages at the very first meeting. Lanyi's memory improved considerably after Musso testified. He then testified that at the fourth meeting, on December 22, he had set forth the union position that the requested contract textual changes were unacceptable. (Musso had testified that only economic terms had been discussed and that there was no discussion of other changes in the standard form contract.) Lanyi also testi- fied that "we were still asking for a response to the wage proposal that we had asked for and which we had not gotten at the two previous meetings." He cited rising living costs. When it came time to set a date for a further meeting, a date could not be set because Musso had med- ical problems. Unquestionably, Musso was compelled by medical problems to spend the entire month of January 1982 away from work. He underwent surgery, which hospital- ized him at the beginning of the month and required him to recuperate at home for the last 3 weeks of January, by which time the charge here had been filed. I credit Lanyi's version of the events which transpired at the final meeting, despite his memory lapse, and I do not credit Musso's assertion that the Union agreed to wait quiescently for a response to its economic demands and to sit through several meetings watching Pinto tear up the standard forms. I also credit Lanyi's testimony that early in January he telephoned Pinto, who promised to get back to him with 27 a date for resumption of negotiations. It is the type of conversation that would logically take place under such circumstances. The date when Musso would be physical- ly capable of resuming negotiations was within Musso's and Pinto's knowledge. They made no effort to suggest a date although in September 1981, they had been able to fix a meeting date 6 weeks ahead of time. B. Analysis The issue is whether in the circumstances of this par- ticular case, the statutory obligation to bargain in good faith has been met.5 It has been observed that surface- bargaining cases present problems of great complexity and that no case can be a determinative precedent for an- other: "It is the total picture shown by the factual evi- dence that either supports the complaint or falls short of the quantum of affirmative proof required by law." In the present case, there was inordinate delay on the part of the Respondent in coming to the bargaining table. The meeting in August 1981 involved more than presen- tation of the Union's demands. The Respondent's counsel put off negotiations until the latter part of October with- out adequate explanation of the need for such a lengthy delay. Pinto's statement that it was the first available date both he and Musso could attend was no explanation at all. Musso did not amplify it in his testimony and Pinto did not appear at the hearing . There can be no ar- gument about Respondent's obligation to meet with the Union upon some reasonable timetable; that is, the statu- tory mandate. Respondent's failure to do so is one of the factors that may be considered with the totality of con- duct to determine whether it was engaging in good-faith bargaining as required by the Act.7 The delay continued at and after the second meeting. The Union's form contract and economic demands, whether acceptable to Respondent, have never been claimed by Respondent to have been unreasonable or outrageous, yet no response to the economic demands was forthcoming until the fourth meeting , on December 22, 4 months after their original presentation to Respond- ent. The process of excision of standard clauses carried out during the second meeting was tantamount to whole- sale expurgation of standard form provisions which in many cases were nothing more than carryovers from ear- lier collective-bargaining agreements to which Respond- ent had been a party. The Respondent conceded8 what is apparent from the documentary evidence: that the Respondent sought elimination of features that had existed in earlier agree- ments with the separate union locals which had merged into Local 6 and that did not in any manner impinge on economic problems of the Respondent . Respondent of- fered almost no justification for its sweeping attack on the noneconomic provisions of the contract. Musso at- 5 NLRB v. Truitt Mfg. Co., 351 U S 149 (1956). 6 Borg-Warner Corp., 198 NLRB 726 (1972); Sweeney & Co., 176 NLRB 208, 211 (1969), modified but enfd. as to this point 437 F.2d 1127 (5th Cir. 1971) (the quotation is from Borg-Warner) 7 Borg-Warner, above at 734 s The concession was made by counsel for Respondent during final ar- gument. 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tributed the idea of eliminating the union-security clause to remarks made by the administrative law judge who had been involved in settlement of the charge filed earli- er by Local 6. Musso asserted that, not only was that idea not original with him, but the Union had not found it objectionable when suggested by the judge. Neverthe- less, that would hardly be justification for the broad attack on the other provisions or for assuming the justifi- cation of the demand for elimination of the union-securi- ty clause in the present circumstances. Each party blames the other for the delay in negotiat- ing the economic proposals, and each party seeks to cast the onus on the other for producing counterproposals. Lanyi testified that he kept pressing for an economic re- sponse; Musso says it was understood that that would be left for last. It may be argued that Lanyi's failure to recall the December meeting should be regarded as a se- rious qualification of his credibility, but I do not accept it as such. I regard it, rather, as a true lapse which re- quires that his testimony regarding some of the details of the meetings be accepted only with great care. It does not weigh half as much on me as does the impression, on these facts, that much of the Respondent's preoccupation with the form contract was a stall to avoid coming to grips with the economic demands. That impression is re- inforced both by the extreme nature of Respondent's ob- jections to the standard form contract and by the spuri- ous nature of the economic counterproposal,9 which Musso admitted was made purely to compel the Union to come forward with another proposal and did not at all reflect what he was willing to negotiate. He waited for the Union to negotiate against itself instead of making a bona fide counterproposal. Lack of good-faith bargaining is also indicated by Re- spondent's advancement of an illegal proposal. The par- ties at the hearing accepted it as a given proposition that a 50-percent reduction would have brought the employ- ees' wages below the legal minimum wage. Musso ex- cused himself on the basis that he acted on advice of Counsel but that does not explain why such a proposal was made in the first place. He did not bring his attorney in to explain it. This proposal is also indicative of lack of good-faith bargaining when viewed from another stand- point. An employer's insistence on making proposals to a newly certified union, which are less than what the em- ployees are currently receiving has been held to be, in the proper overall context, failure to bargain.10 Thus, the Respondent's argument that the contract presented to it by the Union was an altogether new contract and not a renewal is seen not to be helpful at all to the Respond- ent. In any event, however, the same logic has been held applicable to negotiations involving renewals, it being held that one of the factors to be considered in determin- ing whether an employer is bargaining in good faith is whether its proposals would reduce the employees' exist- ing working conditions or wages, an inference unfavor- 9 The nature of the employer's proposals may be taken into account in assessing its motivation in collective-bargaining negotiations Sweeney, above at 212, modified but enfd as to this point 437 F 2d 1127 (5th Cir 1971) 10 Dothan Eagle, 174 NLRB 804, 815 (1969), enfd. 434 F 2d 93 (5th Cir 1970) able to the employer being permissible if reductions are something more than de minimis. "I Consideration of all the circumstances of the present case makes it apparent that the Respondent did not simply adhere to a bargaining position that was unpalata- ble to the Union but formulated and maintained a posi- tion designed to stall negotiations, avoid reaching an agreement, and undermine the position of the Union as the representative of the Respondent's employees. Musso and his attorney had to have known that their proposals, economic and otherwise, would encounter serious resist- ance from the Union.12 It is well settled that rigid adher- ence to proposals of a type which are "predictably unac- ceptable" to the Union may be considered with other evidence "as evidencing a predetermination not to reach agreement."13 The same is true of proposals advanced in expectation of union rejection by an employer's negotia- tor who is "well schooled in the realities of collective bargaining." t 4 The Respondent, in effect, called on the Union to abdicate its normal right to represent the em- ployees effectively, t 5 and "a violation is made out when, as here, the employer demands a contractual provision which would exclude the labor organization from any ef- fective means of participation in important decisions af- fecting the terms and conditions of employment of its members."16 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The violations of the Act herein found to have been committed by the Respondent have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All employees of the Respondent except guards and supervisors as defined in the Act constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. The Union is the exclusive representative of the em- ployees in the aforesaid unit for the purpose of collective ' i Borg-Warner, above at 736 12 "It would be unreasonable to assume that Respondent's attitude with respect to economic issues was taken without anticipating that com- munication of its views to the Union would create anything other than immediate stalemate " Sweeney & Co, above at fn.9 18 NLRB v. Herman Sausage Co. 275 F 2d 229 (5th Cir 1960), enfg. 122 NLRB 168 (1958), quoted in Borg-Warner, above at 727 See also Sweeney & Co, above at 212, and Tomco Communications, 220 NLRB 636 (1975), enf denied 567 F 2d 871 (9th Cir 1978) i4 Tomco Communications, above at 637 16 Failure to bargain is indicated by lack of movement because of ad- herence to original position, adamant insistence on a bargaining position, and failure to make meaningful concessions Id at 637, NLRB Y Cable Vision, 660 F 2d I (1st Cir 1981), enfg 249 NLRB 412 (1980) 16 United Contractors (JMCO Trucking), 244 NLRB 72, 73 (1979) (citing Tomco), enfd mem 108 LRRM 3152 (7th Cir 1980) CAPTAIN'S TABLE bargaining with respect to rates of pay, wages , hours of employment, and other terms and conditions of employ- ment. 5. Respondent violated Section 8(a)(5) and ( 1) of the Act by failing and refusing to bargain collectively in good faith with the Union with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment. 6. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in an unfair labor practice by reason of its refusal to bargain in good faith with the Union with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment, I shall recommend that Respondent 29 be required to cease and desist from such conduct and that it be required, on request of the Union, to negotiate with respect to such subject matters and, if an agreement is reached, embody the same in a signed agreement.17 [Recommended Order omitted from publication.] 17 This is the relief requested by the General Counsel (G C Br. 12) and suffices to effectuate the policies of the Act. I considered the propri- ety of recommending backpay in view of the delay in bargaining com- bined with actual implementation by Respondent of a 50-percent reduc- tion in wages, but concluded on the basis of evidence in the record that such relief would not effectuate the purposes of the Act, might be injur- ous to the interests of all parties, and would be better left to the discre- tion of the parties in the course of the collective bargaining which is here directed to proceed Such a remedy was invoked by the trial examiner in Freeman Co., 194 NLRB 595 (1971), but the Board reversed his finding that Sec . 8(ax5) had been violated. See Steelworkers Y. NLRB, 430 F.2d 519, 521 (D.C Cir. 1970), enfg. 178 NLRB 711 (1969), Royal Typewriter Co. v NLRB, 533 F 2d 1030 (8th Cit. 1976), enfg. 209 NLRB 1006 (1974), Tiidee Products, 194 NLRB 1234 (1972); Southland Dodge, 232 NLRB 878 (1977).