ABC Food Service, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1969

176 N.L.R.B. 426 (N.L.R.B. 1969)

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ABC Food Service, Inc. and Industrial , Technical
and Professional Employees Division of National
Maritime Union of America, AFL-CIO. Case
20-CA-5083
June 6, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On March 26, 1969, Trial Examiner James R.
Hemingway issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,
and the Charging Party filed a brief in answer to the
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations.
Respondent's answer was filed on September 23, 1968.
Pursuant to notice, a hearing was held in San
Francisco, California, before me on December 12 and 13,
1968. Following the close of the hearing, each of the
parties filed a brief with me.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Texas corporation, with its principal
office and place of business located at El Paso, Texas. At
all times material hereto, it has been engaged in the
business as a food service contractor to the United States
Navy. During the year prior to the issuance of the
complaint, the Respondent, in the course and conduct of
its business operations, received revenue in excess of
$100,000 for services performed for the United States
Navy at San Diego , California, and during the period
from July 1, 1968, until the time of the hearing, the
Respondent received "in excess of $27,000 per month"
($28,000) for services performed for the United States
Navy at Alameda Naval Air Station, Oakland, California,
under a contract calling for $336,000 per year.
The Respondent admits that its activities have a
substantial impact on the national defense and that it is
engaged in commerce within the meaning of the Act. I so
find.
II. THE UNION
The complaint alleges and the answer admits that the
Union is a labor organization within the meaning of the
Act, and I so find.
111. THE UNFAIR LABOR PRACTICES
A. Background
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, ABC Food
Service, Inc., El Paso, Texas, its officers, agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY , Trial Examiner : Industrial,
Technical and Professional Employees Division of
National Maritime Union of America, AFL-CIO, herein
called the Union , filed a charge on July 3 , 1968, against
ABC Food Service , Inc., herein called Respondent,
alleging violations of Section 8(a)(l) and (5) of the
National Labor Relations Act, as amended , 29 U.S.C.,
Sec. 151, et. seq ., herein called the Act. Upon this charge,
a complaint issued on September 13, 1968, alleging
violations of the aforesaid sections of the Act.
U. S. Eagle, Inc., herein called Eagle, a Washington
corporation, engaged in the business of food service (later
herein described) under contract to the United States
Navy, had a contract to perform food services for the
Navy at the Alameda Naval Air Station from July 1,
1967, to June 30, 1968, at a contract rate of $24,000 per
month, with an option of renewal extended to the Navy.
On August 31, 1967, the Union filed a petition for
certification and thereafter, in early October 1967, entered
into a stipulation for certification upon consent election
with Eagle. The stipulation stated that "the following
employees of the employer at the General Mess, Alameda
Naval Air Station: All full-time mess attendant service
workers and regular part-time mess attendant service
workers, and all casual mess attendant service workers
who work an average of 15 hours per week or more for
nine consecutive weeks, excluding office clerical
employees, guards and supervisors as defined in the Act"
constituted an appropriate bargaining unit. There were
about 44 eligible voters. Following an election by secret
ballot, which the Union won by a 37 to 1 vote, the
Regional Director, for and on behalf of the Board, on
November 2, 1967, certified the Union as the exclusive
representative of all employees in the appropriate unit for
the purposes of collective bargaining with respect to rates
of pay, wages , hours of employment, and other conditions
176 NLRB No. 55
ABC FOOD SERVICE
of employment.
Under date of January 20, 1968 , the Union entered into
a collective - bargaining agreement with Eagle , having a
3-year term and containing a union -shop clause, among
other provisions.
B. Successorship Issue
In April 1968 , Lieutenant Jimmy Yoshida , the food
service officer in charge of the enlisted men's mess, being
dissatisfied with Eagle 's supervision , chose not to exercise
the option to renew Eagle 's contract and began to take
bids for a new contract to commence on July 1, 1968.
Previously the contract had gone to the lowest bidder, but
Yoshida employed a procedure known as requests for
proposals which called not merely for a price for described
work but for information on the abilities of the bidders,
methods of operation expected to be used , names and
background of supervisory personnel , etc. Under this
procedure , the Navy was able to select the contractor not
merely on the price bid but on an overall evaluation of the
contractor 's qualifications and plan of operations.
During April and May 1968 , Yoshida met with
representatives of various expectant bidders . Respondent
sent , as its representative, Verl Schoenfeldt , assistant to
the president of the company , who was in charge of its
West Coast operations . Schoenfeldt spent several days at
the base , watching operations and conferring with
Yoshida . According to Yoshida , whom I credit, he
notified Schoenfeldt before bids were submitted that the
employees had voted for the Union to represent them and
that they were members of the Union . Schoenfeldt
conceded that , when he was making his survey in May
1968, he knew that Eagle had a contract with the Union.
Furthermore , the Union , which was aware that Eagle's
service contract was to expire on June 30 , 1968, by
telegrams sent on May 20 , 1968, to a number of the
bidders , including Respondent , notified them of its
contract and requested them to consider the terms of that
contract in submitting their bids.'
Respondent ' s proposal was accepted by the Navy, and
the Respondent was given a 1-year contract , which was
basically the same as Eagle 's with the exception of the
amount of the contract payment previously mentioned.
Respondent took over management immediately upon
termination of Eagle 's contract . At the end , Eagle had 84
employees . Respondent took application for employment
from those who wished to apply . Of Eagle 's 84 employees,
Respondent took application from and hired 64 . Only four
more employees not previously employed by Eagle, were
hired as part of Respondent ' s initial staff. However,
Respondent did not hire any of Eagle's supervisors or
management personnel.
According to Yoshida , the work performed by Eagle
and by Respondent was the same , neither more nor less.
They performed janitorial work in the dining area , part of
the passageways , the back dock area and the loading
dock ; they served food to enlisted men; and they operated
the sculleries (dishwashing ) and did cleanup work in the
areas related to food service . Neither Eagle nor ABC was
involved in the cooking or other preparation of food. Both
Eagle and Respondent used cleaning equipment belonging
to the Navy , the only variation being that Eagle had
owned two buffers larger than those that belonged to the
'The Union actually stated terms of its best contracts rather than the
particular one here involved . However , the important fact is notice of its
interest rather than the terms of the contract.
427
Navy and were permitted to use them on the job. These
were removed by Eagle at the termination of its contract.
The Respondent contends that , in resolving the issue of
successorship , the Board must take into account the lack
of relationship between Eagle and Respondent and the
differences in management , in the duties of supervisors, in
the methods used to accomplish the work to be
performed , and in the uniforms supplied certain employees
and the method of supplying them.
Regarding management , Respondent points to the fact
that it is a large company having many bases of
operation . Schoenfeldt , who is responsible for all West
Coast Naval Bases contracted to Respondent , is directly
under the president of Respondent . Schoenfeldt brought in
a project manager for the Alameda base , but Respondent
points to the fact that that manager was subject to policies
formulated by the president , vice president,
secretary-treasurer , and assistant to the president. Thus,
Respondent argues , the Alameda operation is not just a
local operation but is an integrated part of a larger
enterprise.'
Regarding its supervisory staff at the Alameda base,
Respondent points to the fact that its supervisors spend 80
per cent of their time in supervising and 20 per cent in
working , whereas , under Eagle , the supervisors had spent
about 80 per cent of their time working and 20 percent of
their time supervising . To show the changes effected in
methods of operating , Respondent adduced evidence that,
whereas Eagle had washed all the windows in the mess
area on weekends with a field -day crew (crew brought in
for that specific job), the Respondent washed one fifth of
the windows each day by working this job into the
schedule of individual employees; that whereas all Eagle
employees were clocked out at 7 p.m., under the
Respondent , the afternoon supervisor was required to stay
on and finish up whatever had to be accomplished and
that no one left until the job was completed; that
Respondent made better scheduling of time and use of
labor ; that although there were "general provisions which
would be compatible to either operation " there were
differences in the manner in which the employees were
used ; that, under Respondent , a separate identifiable job
sequence was provided for each individual employee; and
that Respondent , in its proposal, agreed to supply
laundered uniforms (which it procured from a Los
Angeles company which supplied uniforms for
Respondent ' s other operations ) and it negotiated a
contract for the provisioning of "whites" locally. No
substantial evidence was introduced of what Eagle had
done about white uniforms for its employees.
Respondent, in its brief to the Trial Examiner , has cited
a number of cases which, it argues , support its contention
that it is not a successor to Eagle , while the General
Counsel and the Union , in their respective briefs, have
cited numerous cases to support the contention that
Respondent is a successor to Eagle . It is now well settled
that a certification by the board of a union must be
honored for a reasonable period of time , normally one
year , in the absence of unusual circumstances , and a mere
change in ownership in an "employing industry" is not
such an unusual circumstance as to affect the force of the
certification.'
'There was little or no evidence of Eagle's top management or of its
contracts at other places.
'Brooks v. N.L.R.B.. 348 U.S 96; Johnson Ready Mix Co. 142 NLRB
437; Skaggs Drug Centers. Inc.. d/b/a Payless Drug Stores, 150 NLRB
518; Valleydale Packers, Inc. of Bristol, 162 NLRB 1486
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent argues , however , that in this case the
employing industry was not the same . I have considered
all of the differences which the Respondent has
enumerated in its brief, and I find that they are not of a
sufficiently substantial character to alter the nature of the
successor business .' The employing industry ' s purpose
remains the same . The end result desired remains the
same.
The cases cited by the Respondent to support its
contention that it is not a successor are all distinguishable.
In most of them , the facts disclose that , not only was the
business in fact altered in character , but also and more
important , that , with no proof of any unfair labor
practice , the successor had employed less than one-half of
his total work force from among the predecessor's
employees .' The Respondent quotes from the court's
language in Tri State Maintenance Corp. v. N.L.R.B.,
407 F.2d 171 (C.A.D.C.), where the court said , "Here, Tri
State had no privity of contract with Frugal or Frugal's
employees and it was not a `successor employer' that
bought out the business of another ." That statement of
the Court was made in rejecting an assumption by the
Board that the successor was obligated to take over the
predecessor 's staff. It was not made with reference to the
duty to bargain. It may be pointed out that the only
question before the court in that case was whether or not
the successor had refused to employ the employees of the
predecessor because of their union membership. The
question of whether or not the successor was bound by the
certification of the Union at a time when the employees
were employed by the predecessor was not before the
court.'
In cases involving the duty of a succeeding employer to
recognize and bargain with a previously certified union,
the word "successor" is not used in any sense as
connoting that the predecessor and successor necessarily
have any kind of privity of contract or title .' As the Board
stated in Maintenance , Incorporated, 148 NLRB 1299:
The duty of an employer who has taken over an
"employing industry" to honor the employees ' choice of
a bargaining agent is not one that derives from a
private contract , nor is it one that necessarily turns
upon the acquisition of assets or assumption of other
obligations usually incident to a sale, lease , or other
arrangement between employers . It is a public
obligation arising by operation of the Act. The critical
question is not whether Respondent succeeded to White
Castle ' s corporate identity or physical assets, but
whether Respondent continued essentially the same
operation , with substantially the same employee unit,
whose duly certified bargaining representative was
entitled to statutory recognition at the time Respondent
took over.
'Maintenance . Inc., 148 NLRB 1299; Consolidated American Services,
Inc.. 148 NLRB 1521.
'Ex. gr.. N.L.R.B. v. 338 F.2d 883 (C.A. 9); N. L.R.B. v . The Alamo
White Truck Service . 273 F.2d 238 (C.A. 5). Thomas Cadillac. Inc.. 170
NLRB No. 92; Pargament Fidler, Inc.. 173 NLRB No. 102; Federal
Electric Corp.. 167 NLRB No. 63.
'The Trial Examiner had passed on an issue of a refusal to bargain, but
the Board had found that the issue of refusal to bargain was moot and so
it did not pass upon it, and the issue of refusal to bargain was not raised
before the court.
'Ramada Inns . 171 NLRB No. 115; S. S. Kresge Co., 169 NLRB No.
61; Maintenance. Incorporated . 148 NLRB 1299; Glenn Goulding d/b/a
Fed Mart . 165 NLRB No. 22 ; Consolidated American Services , Inc., 148
NLRB 1521.
In the absence of any change in the location and
character of the appropriate unit, or material change in
the employing industry, I do not consider it important
that the Respondent did not retain any of Eagle's
supervisors, that it substituted its own supervisory force,
and that the local manager was subject to control by
Respondent's higher management who were located
elsewhere .' Furthermore , so long as the unit remains
substantially the same and the business enterprise at the
Alameda Base remains substantially the same, it is
likewise of no major importance that the Respondent
operates similar enterprises at other locations.'
The Respondent argues that the difference in bidding
procedures used here - the difference between low bid
procedure and request for proposals - was a factor which
should be considered in determining whether or not
Respondent was a successor to Eagle . It even asserts that
this difference was of controlling significance in Federal
Electric Corporation, 167 NLRB No. 63. I find no
essential difference so far as the problem presented in this
case is concerned. Actually, the matter of controlling
significance in Federal Electric was the fact that the
portion (11 of 28 employees) of the predecessor's staff -
the staff that made up the original collective-bargaining
unit - which was retained by the successor was
transferred by the latter to a department of its own
operations and became merged into a previously certified
departmental unit which was represented by a different
union. So not only was less than half the original unit
staff taken over but those that were taken over were
commingled with another, existing, unit.
Respondent argues that the Board should take into
account the effect that all the changes made by
Respondent would have upon the employees' attitude
toward the new employer as opposed to the old employer.
To quote from Respondent's brief:
The bargaining relationship presupposes that a group of
employees, because of a desire to be represented in their
dealings with a given employer , have chosen a union as
their representative to act on their behalf. Presumably,
certain problems with the employer or desire to gain
certain concessions or benefits from the employer have
brought about this relationship . . . . If the employees
of U. S. Eagle were dissatisfied and wished the
protection of a union with respect to the U. S. Eagle
management, they did so because of factors relevant
only to U. S. Eagle, that is, the attitude of U. S. Eagle
toward its employees . . . . However, ... the facts here
. . . would argue in favor of giving the employees an
opportunity at this time to determine whether they wish
now to be represented by the same union in their
dealings with ABC or not represented at all.
The foregoing argument is, of course, based on
assumptions which may or may not be true . It assumes
that employees choose a union to represent them because
they feel that their employer is something of a villain and
it proposes that because the employees might not feel that
the successor is also a villain , they should do without
union representation until such time as they are satisfied
that the successor is a villain. The assumption drawn by
the Respondent is only one of many reasons why
employees might have selected a union to represent them
'Maintenance , Incorporated , 148 NLRB 1299, Hackney Iron A Steel
Co., 167 NLRB No. 84; Valleydale Packers, Inc.. 162 NLRB 1486;
Randolph Rubber Company, Inc., 152 NLRB 496.
'See Home Furniture Co., Inc., 174 NLRB No. 113; Hackney Iron &
Steel Co. 167 NLRB No. 84; Valleydale Packers. Inc.. 162 NLRB 1486.
ABC FOOD SERVICE 429
in collective bargaining . The Board is not required to
ascertain subjective reasons for the selection. It is
sufficient that the employees have made their selection. As
stated by the Supreme Court in Ray Brooks v. N.L.R.B.,
348 U.S. 96:
Although the Board may, if the facts warrant, revoke a
certification or agree not to pursue a charge of an
unfair labor practice, these are matters for the Board;
they do not justify employer self-help or judicial
intervention.
In giving the certification at least a full year before
permitting the reopening of the question of representation,
the Board has been influenced by practical considerations.
"It would be virtually impossible for employees to achieve
collective- bargaining rights in an employing industry
which is periodically subject to a possible change of
employers if with every change the employees must again
resort to the Board's processes in order to demonstrate
anew their desire to be represented by their formerly
certified bargaining representative."" Accordingly, I find
that Respondent here is a successor employer who is
bound by a prior certification in the absence of any
unusual circumstances.
C. Refusal To Bargain
1. The appropriate unit
employed as of September 29, 1967; the other consisting
of full-time and regular part-time mess attendant service
workers and casual mess attendant service workers who
worked 135 hours or more during the period of July 15,
1967, through September 15, 1967. This was a broad
enough description to cover employees not on the current
payroll who could be considered fairly regular part-time
workers as well as current employees. It would appear
that the Respondent's objection is not so much one of the
propriety of the unit as it is of the eligibility of certain
employees to vote in the election. Since the Regional
Director, on behalf of the Board, approved the unit, the
unit is presumptively valid. Under Section 102.63 of the
Board's Rules and Regulations, it is the duty of the
Regional Director to decide that there is reasonable cause
to believe that a question of representation affecting
commerce exists, that the policies of the Act will be
effectuated, and that the election will reflect the free
choice of employees in the appropriate unit. There being
no evidence to the contrary, I must assume that the
Regional Director performed his duty in this respect and
that he did not vary from the policies of the Act. On the
evidence presented, the eligibility of specific voters cannot
be attacked." It must, therefore, be presumed that the
Regional Director properly determined the eligibility of
voters. Accordingly, I find that the unit heretofore
described is appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
The unit for which the Union was the certified
collective bargaining representative is described in the
complaint as full-time and regular part-time mess
attendant service workers, and all casual mess attendant
service workers who worked an average of 15 hours or
more per week for 9 consecutive weeks, excluding office
clerical employees, guards, and supervisors as defined in
the Act. In its answer, the Respondent denies that this
unit is appropriate. However, neither in its answer nor in
its brief did the Respondent offer a more appropriate unit,
except insofar as it criticized the alleged appropriate unit
in its brief for including only "casual mess attendant
service workers who work an average of 15 hours a week
or more for 9 consecutive weeks." The Respondent
contends that this is a departure from the Board's
customary practice of including all regular part-time
employees. It argues further that the Board would never
have found such a unit appropriate except for the fact that
this was a stipulated unit.
An exhibit in evidence lists the names of employees on
the payroll of the Respondent for the payroll period from
August 19, 1967, to September 1, 1967, and, by
comparing the records of employees with the names of
employees on the eligibility list, which was introduced in
evidence, the Respondent points to the fact that there
were some who were excluded from eligibility who had
worked just as much time as those who were included.
However, the number of hours that an employee worked
during a given period does not determine whether or not
such employee was a regular part-time employee or
merely a temporary employee, and the Board customarily
excludes temporary or casual employees. Furthermore, the
eligibility list prepared by the Regional Office shows that
two groups of employees were eligible - one being
persons employed on September 15, 1967, and still
"Maintenance , Incorporated, 148 NLRB 1299 at 1302. Another instance
of deferring new elections for practical reasons is found in the contract-bar
rule. See General Cable Corporation, 139 NLRB 1123.
2. The Union's majority
The Respondent contends that it did not know of the
Union's certification because the Union never informed it
thereof. A good-faith doubt of majority must, however, be
based on something more substantial than the medium of
communication of the facts. The Respondent had been
informed by Lt. Yoshida in May 1968, that the employees
had "voted the Union in" and that they were members of
the Union. What conclusion the Respondent might,
subjectively, have drawn from this information is
unimportant. Yoshida's information to the Respondent
put the latter upon notice of the fact that the Union had
been chosen by the employees in an election and that, if it
had been a Board-conducted election, it would have been
followed by certification. But even if the election had not
been conducted by the Board, the information about the
result of the election put the Respondent on notice that
the Union had established its majority, and this, alone,
would have put the Respondent to proof of a good-faith
doubt of that majority.'r
I find no showing by the Respondent which could
furnish a reasonable basis for doubt of majority. In its
brief, the Respondent does not advance any plausible
reason for doubt of the Union's majority other than the
failure of the Union to mention its certification. If,
however, Respondent had knowledge of the Union's once
established majority, it would be immaterial that it had
received such knowledge from a source other than the
Union. From such evidence as appears, it is inferable that
the Respondent, at some time unfixed, learned of the
union-shop clause in the Union's contract and chose to
believe that those employees who were employed after the
date of the contract were unwilling members, who, if they
should be given a chance to vote, would vote against the
"General Tube Co. 141 NLRB 44.
"Universal Gear Service Corporation , 157 NLRB 1169, enfd 394 F.2d
396 (C.A 6); Valleydale Packers. Inc, 162 NLRB 1486.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union . Even if the Respondent had, on the date of the
alleged request and refusal to bargain , known of the
union-shop clause in the Union 's contract - which
Respondent portrays as unlikely by emphasizing the
evidence that the Union had refused to show Respondent
its contract. Such evidence, however, hardly proves a
good-faith doubt of the Union's majority. Even if the
Respondent had known of the union -shop contract, its
argument that a majority of Eagle ' s former employees
whom Respondent had hired had not had an opportunity
to vote on the question of representation , would be
untenable , for this furnishes no basis for a reasonable
doubt as to the Union ' s majority . It would tend to prove
only that the Respondent was unwilling to recognize the
Union and was resorting to wishful thinking to avoid
recognition."
Since a year from the date of certification had not
elapsed at the time of the alleged refusal to bargain, the
certification of the Union by the Regional Director for
Region 20 of the National Labor Relations Board
conclusively determines the Union ' s majority in the
appropriate unit." Accordingly , I find that at all times
material hereto the Union has been and is the exclusive
representative of all employees in the aforesaid bargaining
unit within the meaning of Section 9(a) of the Act.
3. The request and refusal to bargain
In the latter part of June , 1968, the Union made a
telephone call to the local manager of the Respondent and
told him that the Union considered itself to be the
representative of the employees and that they would like a
meeting to disucss the contract with representatives of the
Respondent . The local manager relayed this information
to Schoenfeldt who, in turn , notified Joshua Kahn,
secretary-treasurer of the Respondent who is in charge of
labor relations . As a result , a meeting was set up for July
2, 1968, at 10 a.m. At the appointed time, at Sambo's
Restaurant in Oakland , California , Schoenfeldt and Kahn,
for the Respondent , met with Roy Wilson , the Union's
Regional Director , and Herbert Herrmann, as
representatives of the Union . The meeting lasted for only
five or ten minutes but there is quite a variance in the
testimony by each side of what was said during the
meeting. Wilson did the speaking for the Union and Kahn
spoke for the Respondent.
Wilson testified that he told Kahn, "You are aware we
represent the employees of the Alameda Naval Air
Station?" Wilson quoted Kahn as replying , " I am aware
that you did represent the employees at U.S. Eagle, a
previous employer at the air station ." Wilson then went
on to testify that he told Kahn that the Union was
certified by the Board as the representative of the
employees and that it was the Union 's position that it still
represented the employees at the Alameda Naval Air
Station. Wilson testified that Kahn replied that there was
some question as to whether the Union represented a
majority of the employees working for the Respondent.
Wilson testified that he told Kahn that unless they had
changed the employees, had dismissed them and hired all
new employees , that the Union represented the employees
of the Respondent . Wilson quoted Kahn as saying , "Well,
we have made some changes . . . . We have changed out
management from top to bottom . . . . We have changed
our managers and our supervisors ." Wilson testified that
"See Monarch Hardware & Mfg . Company , 145 NLRB 775, 779.
"Ray Brooks v. N.L.R. B.. 348 U.S. 96.
he asked Kahn whether or not the Respondent had
changed all the nonsupervisory employees and that Kahn
had replied that all of the employees had been dismissed
and that "a number of them were rehired by ABC."
Wilson asked Kahn if there were any previous employees
whom the Respondent had not rehired and, according to
Wilson, Kahn replied, "Yes, a number of employees were
not rehired at the request of the Navy because they were
undesirable ." It will be noted that Kahn did not reveal
that a majority of the Eagle employees had been hired by
Respondent.
Wilson testified that Kahn then told him that the
Respondent's attorney had advised him that the Union did
not represent the employees , to which Wilson replied,
"But we have a contract," and that Kahn had replied,
"That's a contract with U.S. Eagle , that is not a contract
with these employees." Wilson testified that he told Kahn
that , as a successor employer , the Respondent should be
bound by the contract and that Kahn had replied that his
attorney had advised him otherwise. Wilson then
continued his testimony by saying that he had told Kahn
he was not happy with the existing contract and would
prefer to negotiate a different contract with the Company
and that Kahn had asked Wilson if he had a copy of the
contract. Wilson testified that he then turned to
Herrmann and asked if he had a copy of the contract, and
that Herrmann had taken a copy from his pocket and that
he, Wilson, had handed this to Kahn, who had looked at
it briefly before Wilson had said, "wait a minute, this is
an original contract , this is not a copy . I'm going to have
to take this one back ... I'll make you some copies of it
and I'll send you one ." Wilson quoted Kahn as asking
why they could not make some copies right now - that
they could get a copy machine and make some locally.
Wilson testified that he had suggested that they let their
counsel contact each other for further steps to be taken
because the Respondent apparently was unwilling to
recognize the Union in any event. At some point in the
conversation , according to Wilson , he asked Kahn if it
was his position that the Union did not represent the
employees and that Kahn had replied "No, not unless you
can show us that you represent a majority of our
employees," and that Wilson had asked, "How should we
do this? Should we go by card check or an election or how
do you propose we do it?" Wilson testified that Kahn had
replied : "It doesn't matter to us. We just want to do it the
legal way."
According to Kahn, Wilson had opened the discussion
by saying that the reason they were there was because
"You know we have a contract with U.S. Eagle and we
regard you as a successor to this contract ." Kahn testified
that he disputed this and that Wilson had said that in such
case they would probably have to litigate the point,
whereupon Kahn said , "Fine" and gave Wilson the name
and address of the Respondent's attorney, and that Wilson
had given him the name of the Union's attorney. Kahn
continued his testimony by saying, "And then in the
course , while we were sitting there finishing the coffee, I
mentioned that it might be helpful to us if we had a copy
of the contract that he alleged to exist if we were going to
be discussing a contract ." After testifying to a discussion
of the production of a copy, according to Kahn, Wilson
had said that he would not be willing to produce the copy
if the Respondent was not going to accept the position
that the Respondent was a successor, that then the Union
would not be willing to stay with the original contract and
would be thinking in terms of negotiating a different
contract. According to Kahn, that was about all the
ABC FOOD SERVICE
discussion there was . He denied that there had been any
statement regarding whether or not the Union represented
a majority of the employees or any of the other matters to
which Wilson testified . Schoenfeldt ' s testimony was
substantially the same as that of Kahn.
The testimony of Kahn and Schoenfeldt appeared to me
to be guarded as a result of prior coaching as to the
meaning of certain expressions . On the other hand, the
testimony of Wilson indicated to me that he had not been
cautioned against making certain statements . I noticed
that counsel for Respondent seized upon Wilson's
testimony that he had asked Kahn how Kahn proposed
that the majority of the Union should be proved as though
it were an admission against interest by asking Wilson if
he was indicating that he was willing to prove the Union's
majority in one of those ways . Wilson ' s answer to this
question was that he was merely trying to find out what
Kahn ' s position was.16 Although Wilson may not have
remembered Kahn ' s side of the conversation literally, I
find that his testimony, as related, is substantially
accurate.
On the same day as the foregoing meeting , Kahn got in
touch with the Respondent ' s attorney, and the latter
immediately prepared an RM petition for an election. In
this petition , there is a blank for the date of request for
recognition as bargaining representative , and this blank
was filled in by Respondent ' s attorney as July 2, 1968,
and a blank was also filled in with the same date as the
date it declined recognition . The covering letter of the
same date also refers to a demand for recognition by the
Union . The petition was filed on July 5 , 1968. Meanwhile,
on July 3 , 1968, the Union had filed its charge in this
case . Presumably , the Regional Office sent the
Respondent's attorney notice of the filing of the charge
and requested a statement of the Respondent 's position,
because on July 17, 1968, the Respondent 's attorney wrote
that his letter was in reply to a letter from the Regional
Office respecting the position of his client . In this letter,
the Respondent ' s attorney states : "Likewise , we feel we
are not bound by any prior certification of the National
Maritime Union regarding U.S. Eagle for the same
reasons." By the same reasons he was referring to the
position taken by the Respondent that it was not a
successor . There is no explanation of why he referred to a
prior certification or of how he might have received
information that there had been a certification of the
Union . But it is apparent from this letter that Respondent
would not have extended recognition even if Respondent
had been informed of the Union 's certification.
Despite this evidence , the Respondent , in its answer and
in its brief, took the position that the Union had made no
request to bargain but had sought only to enforce its
contract . In addition to the RM petition and the covering
letter , there is other evidence that Respondent was aware
of the fact that the Union was demanding recognition and
bargaining . For example , when Schoenfeldt was testifying
to the decision of Wilson at the July 2 meeting not to
produce the contract , he testified : "There was also a
comment about the fact that the representative of the
Union at the time, and I know not who this was, I was
led to believe , at least, that he was incompetent and had
been relieved and in view of his relief Mr. Wilson was
"I do not consider Wilson's query about methods of proving majority as
indicating any doubt of majority in the appropriate unit . It must also be
remembered that Kahn did not reveal the number of former Eagle
employees that Respondent had hired at the time Wilson asked this
question.
431
coming out here as his replacement, and him not buying
what was in the contract that anything subsequent would
be predicated on what he would be taking care of in it."
Also, on cross-examination , Schoenfeldt testified : "There
seemed to be an interplay at this point in time between
Mr. Wilson and Mr. Herrmann and as I recall it at this
time Mr. Wilson mentioned that , and he may have
mentioned the person ' s name , but I gathered it was a
person that he was replacing in this area ; that he wasn't
too sharp and he wasn 't too competent and there were
going to be some changes and so, therefore , if we were
going to be discussing anything , it would be predicated on
what he [Wilson ] felt was needed and then he elaborated
somewhat on some of the deficiencies that he felt existed
in the current contract, why he felt they existed, and
changes that he felt would perhaps have to take place."
Kahn gave similar testimony when he testified that "Mr.
Wilson indicated that if we were not willing to be bound
by the contract that existed that they would necessarily be
interested in negotiating a different contract the next time
and they would not probably be satisfied with some of the
clauses in it ." From all the evidence , I conclude that the
position of the Union, known to the Respondent , was that
it would permit the Respondent to assume the existing
contract , but that if Respondent chose not to do so, then
the Union wished to negotiate a new one . I find that,
whether or not the Union , in so many words, asked the
Respondent to recognize and bargain with it , it did so in
fact."
In addition to the evidence of the refusal to bargain at
the July 2, 1968, meeting, the complaint alleges and the
General Counsel contends that the Respondent refused to
bargain when it dealt individually with employees and
changed wage rates and other terms of employment. In
the last week of June, 1968, Respondent gave to Eagle's
manager applications of employment to distribute among
Eagle 's employees . During nonworking time , Respondent
conducted interviews with Eagle employees as well as with
applicants from the state employment agency. Upon its
hiring of employees, Respondent gave each employee an
informational brief about the Respondent and a document
entitled , "Conditions of Employment at NAS , Alameda,
California." The latter document listed straight and
overtime wage rates, holidays, vacation, deduction for
price of meals ; and it gave the Respondent ' s requirements
on personal appearance and cleanliness , causes for
termination , use of timecards , paydays , and personal
responsibility . At the end of this document there was a
line for signature of the employee and the date of signing
as well as a line for the supervisor's signature. Each
employee and the supervisor were required to sign such a
form.
The Respondent in this informational document stated
that the wage rate would be $2.63 per hour. This
compares with $2 . 15 per hour paid by Eagle . The number
of holidays given by the Respondent also was increased
and there were other differences in terms of employment.
The Respondent points out that under the Service
Contract Act of 1965 , it was required to make minimum
wage payments as fixed by the Department of Labor for
given areas . A determination for the area including
Alameda was made on March 29 , 1968, and the rate fixed
for mess attendants in the area , including Alameda, was
$2.63, and the determination also fixed vacation and
IV. H. Rutter-Rex Mfg. Co., 164 NLRB No. 10; Bay Standard
Products Mfg. Co.. 167 NLRB No. 44; Hackney Iron & Steel Co. 167
NLRB No. 84.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
holiday fringe benefits. Neither Eagle nor Respondent
agreed to more than the benefits fixed by such
determination. The General Counsel does not seriously
contend that the increase in rate or number of holidays as
required by law was a violation of the Act. But he argues
that the Respondent's failure to discuss the matter with
the Union, and Respondent's requirement of individual
contracts by employees constituted a refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act." Since I
have already found that the Respondent was under a duty
to bargain with the Union, I find such conduct to be
additional evidence of a refusal to bargain.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section
III, above, occurring in connection with the operations of
the Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening, and obstructing commerce and
the free flow of commerce.
Upon the foregoing findings of fact, and upon the
entire record in the case, I make the following:
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
meaning of Section 2(5) of the Act.
3. All employees of the employer at the General Mess,
Alameda Naval Air Station, employed as full-time mess
attendant service workers and regular part-time mess
attendant service workers, and all casual mess attendant
service workers who work an average of 15 hours or more
per week for 9 consecutive weeks, excluding office clerical
employees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act 18
4. On November 2, 1967, and at all times material
thereafter, the Union was, and thereafter continued to be,
and still is, the collective-bargaining representative of all
employees in the aforesaid appropriate unit within
meaning of Section 9(a) of the Act.
5. Respondent is a successor to U.S. Eagle, Inc., and as
such successor is obligated to recognize and bargain with
the Union.
6. On July 2, 1968, the Union requested Respondent to
recognize and to bargain with it, and on and after that
date, Respondent refused, in violation of Section 8(a)(5)
of the Act, to recognize or to bargain with the Union.
7. By the aforesaid unfair labor practice, the
Respondent has interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed in
Section 7 of the Act in violation of Section 8(a)(1) of the
Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, I recommend
an order, pursuant to Section 10(c) of the Act, that
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to recognize or bargain with the Union,
upon request.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form labor
organizations, to join or assist labor organizations, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from engaging in any or all such
activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized
by Section 8(a)(3) of the Act.
2. Take the following affirmative action:
(a) Upon request, bargain collectively with the Union
and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at the premises of the Naval Air Station at
Alameda, California, the proper officials of the Navy
being willing , copies of the attached notice marked
"Appendix."19 Copies of said notice, on forms provided by
the Regional Director for Region 20, shall, after having
been duly signed by an authorized agent of the
Respondent, be posted immediately upon receipt thereof,
and be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material. In the
event that the Navy does not authorize the posting of such
notices on its premises, then Respondent shall mail to
each of its employees in the appropriate unit a copy of
said notice.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of receipt of this
Decision, of what steps he has taken to comply herewith.=0
"In the event that this Recommended Order is adopted by the Board,
the words, "a Decision and Order" shall be substituted for the words, "the
Recommended Order of a Trial Examiner " in the said notice. In the
further event that the Board 's Order is enforced by a decree of a United
States Court of Appeals, the words , 36 36a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words,
36 36a Decision and Order."
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modi fied to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith."
APPENDIX
"General Counsel cites in his brief Paris Manufacturing Company, 149
NLRB 15, and Standard Candy Co.. 147 NLRB 1070, citing Southern
Transportation . Inc., 145 NLRB 615, in which the Board held that the
unilateral wage increases , made pursuant to a Department of Labor
directive , did not constitute a violation of the Act.
"This language is the description of the unit in the certification of the
Union.
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
ABC FOOD SERVICE 433
WE WILL , upon request , bargain collectively with
Industrial , Technical and Professional Employees
Division , National Maritime Union of America,
AFL-CIO, as the exclusive bargaining representative of
all employees in the certified appropriate unit. The
certified unit is:
All full-time mess attendant service workers and
regular part-time mess attendant service workers, and
all casual mess attendant service workers who work
an average of 15 hours per week or more for 9
consecutive weeks , excluding office clerical
employees , guards and supervisors as defined in the
Act.
WE WILL NOT, by refusing to bargain collectively, or
in any like or related manner , interfere with, restrain,
or coerce our employees in the exercise of their right to
self-organization , to form , join, or assist the
aforenamed or any other labor organization , to bargain
collectively through representatives of their own
choosing , and to engage in other concerted activities for
the purpose of collective- bargaining or other mutual aid
or protection , or to refrain from any or all such
activities , except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act, as amended.
Dated By
ABC FOOD SERVICE, INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 13050 Federal
Building , 450 Golden Gate Avenue , Box 36047, San
Francisco , California 94102, Telephone 556-0335.