Barclay Caterers

National Labor Relations Board - Board Decisions

Sep 25, 1992

308 N.L.R.B. 1025 (N.L.R.B. 1992)

1025
308 NLRB No. 145
BARCLAY CATERERS
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
We note that the judge inadvertently dated the Respondent’s re-
fusal to meet and negotiate with the Union from March 13, 1989,
instead of December 21, 1988, in his conclusions of law. We correct
this error.
2 In adopting the judge’s finding that the Union represented a ma-
jority of employees in an appropriate unit, we note the following:
even assuming, as argued by the Respondent in its exceptions, that
the presumption in favor of the Union’s majority status was rebutta-
ble rather than irrebuttable, the Respondent failed to demonstrate that
it had a good-faith doubt based on objective considerations of the
Union’s continued majority status. The Respondent cited its current
lack of a collective-bargaining agreement with the Union; the em-
ployee turnover in the unit since the expiration of the contract on
January 14, 1986; the decertification petition filed for the unit on
March 9, 1990; and the Union’s failure to produce documentary evi-
dence of its majority status at the hearing.
None of these factors, individually or in total, establishes sufficient
objective considerations to support the Respondent’s asserted good-
faith doubt. The absence of a current collective-bargaining agreement
merely means that the contract is not a bar and that the issue of ma-
jority status may be raised. It does not show that majority status has
been lost. Further, employee turnover, by itself, cannot be used as
a basis for belief that a union has lost majority support since it is
presumed that, in the absence of evidence that would justify a con-
trary conclusion, new employees will support the union in the same
ratio as those whom they have replaced. Moreover, this is particu-
larly true when high turnover is prevalent in the industry involved
as is the situation here. See Kelly’s Private Care Service, 289 NLRB
30, 43 (1988). Similarly, without a showing that a majority of em-
ployees supported it, the decertification petition by itself, cannot jus-
tify the Respondent’s withdrawal of recognition. See Alexander Linn
Hospital Assn., 288 NLRB 103, 107 (1988). Nor does the Union’s
failure to produce documentary evidence of majority support show
loss of that support. The Union was not required to carry the Re-
spondent’s burden on the issue of good-faith doubt. In addition, even
were some sort of documentary evidence available, it would not nec-
essarily have the evidentiary value the Respondent appears to urge.
The Board has long held that majority support for a union is not to
be, for example, confused with majority union membership. See At-
lanta Hilton & Towers, 278 NLRB 474, 480 (1986).
Finally, not only has the Respondent failed to meet its burden of
showing that its asserted good-faith doubt of majority status was
based on objective considerations, it also raised that doubt while en-
gaging in unfair labor practices. It is axiomatic that a defense of
good-faith doubt about a union’s majority status may only be raised
in a context free of unfair labor practices. See Nu-Southern Dyeing
& Finishing, 179 NLRB 573 fn. 1 (1969), enfd. in part 444 F.2d
11 (4th Cir. 1971). That is not the case here where the Respondent
asserted doubt about the Union’s majority status after unlawfully
failing to bargain in good faith with the Union.
1 A complaint had issued, separately, in Case 4–CA–18150 on Au-
gust 31, 1989. As discussed infra, that separate complaint was with-
drawn pursuant to certain settlement negotiations, and it is not a part
of the formal documents in this case.
Barclay Caterers, Inc. and Hotel Employees & Res-
taurant Employees Local 274, AFL–CIO. Cases
4–CA–18150 and 4–CA–18777
September 25, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 24, 1992, Administrative Law Judge David
L. Evans issued the attached decision. The Respondent
and the General Counsel filed exceptions and support-
ing briefs. The Charging Party filed a brief in opposi-
tion to the Respondent’s exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Barclay Caterers, Inc.,
Philadelphia, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Henry R. Protas, Esq., for the General Counsel.
Richard H. Martin, Esq. (Astor, Weiss, & Newman), of
Philadelphia, Pennsylvania, for the Respondent.
Michael N. Katz and Adam H. Feinstein, Esqs. (Meranze &
Katz), of Philadelphia, Pennsylvania, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case
under the National Labor Relations Act (the Act) was tried
before me in Philadelphia, Pennsylvania, on October 30 and
31, 1991. The charge in Case 4–CA–18150 was filed by
Hotel Employees & Restaurant Employees Local 274, AFL–
CIO (the Union) against Barclay Caterers, Inc. (the Respond-
ent) on June 20, 1989. The charge in Case 4–CA–18777 was
filed by the Union against Respondent on March 28, 1990.
On those charges the General Counsel issued an order con-
solidating cases consolidated complaint and notice of hearing
(the complaint) on May 21, 1990.1 Respondent duly an-
swered the complaint, admitting jurisdiction of this matter
before the National Labor Relations Board (the Board), but
denying the commission of any unfair labor practices as de-
fined by the Act.
On the testimony and exhibits entered at trial, and my ob-
servations of the demeanor of the witnesses, and on the
briefs that have been filed, I make the following
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Compliance with the settlement agreement is not an issue in this
case.
3 Conduct prior to December 21, 1988, is outside the 6-month lim-
itations period of Sec. 10(b) of the Act, and it cannot be used as
a basis for independent findings, conclusions, or orders. Such con-
duct is included in this narrative only for purposes of background.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation that maintains an office and
place of business in Philadelphia, Pennsylvania, where it is
engaged in the business of kosher catering. During the year
preceding issuance of the complaint, in the course and con-
duct of that business, Respondent received gross revenues in
excess of $500,000 and provided services valued in excess
of $50,000 to customers located outside Pennsylvania.
Therefore, Respondent is now, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Allegations of the Complaint
The complaint alleges that, at all times material, Respond-
ent has recognized the Union as the exclusive collective-bar-
gaining representative of Respondent’s employees in a bar-
gaining unit that is described in the parties’ most recent col-
lective-bargaining agreement, the effective dates of which
were January 15, 1983, through January 14, 1986. That unit
description is:
[T]he Employer’s cooks, kitchen employees, bartenders,
waiters, waitresses, busboys, captains, [and] head wait-
ers working in the [Employer’s] establishment[,] or on
a job hereafter operated or being serviced by the Em-
ployer or in any other establishment where the Em-
ployer may cater[,] in all matters relating to collective
bargaining such as [employment of] employees, wages
hours of work, working conditions and adjustment of
grievances.
The answer admits that Respondent was a party to the 1983–
1986 contract, but it denies the appropriateness of the con-
tract’s unit description and denies that the Union represents
a majority of employees in any appropriate unit. Respond-
ent’s contention in this regard is that the unit description is
inappropriate for bargaining because it does not exclude cas-
ual employees.
The complaint alleges that three categories of Respond-
ent’s conduct violated Section 8(a)(5). The first is that, be-
ginning on December 21, 1988, and continuing to date, the
Respondent has failed to provide requested information that
is relevant to the process of bargaining for a successor agree-
ment to the 1983–1986 contract. Second, the complaint al-
leges that from January 9, 1989, until March 14, 1990, Re-
spondent failed and refused to meet at reasonable times and
for a reasonable number of hours for the purposes of collec-
tive bargaining. Third, the complaint alleges that on March
14, 1990, Respondent ‘‘withdrew from an agreement reached
with the Union during negotiations concerning a formula to
be used to determine fringe benefit eligibility.’’
B. Bargaining History
Respondent is one of several kosher caterers in the Phila-
delphia area. In these operations, Respondent provides, at
temples or other off-premises locations in the area, kosher
food for bar mitzvahs, bat mitzvahs, and weddings. Leonard
Hellinger is a 51-percent owner of Respondent and its presi-
dent, but he does not participate in the management of the
corporation. All management responsibilities are vested in
Larry Drossner, Respondent’s 49-percent owner and cor-
porate secretary-treasurer. Respondent’s facility is a 78,000-
square-foot building that houses an office and a commissary.
Respondent employees six full-time employees at the com-
missary: two chefs, three pot and dishwashers, and a mainte-
nance employee.
The events that Respondent caters are almost entirely con-
ducted on weekends. As well as its six full-time commissary
employees, Respondent employs part-time employees, called
‘‘extras,’’ for weekend work. These part-time employees
work onsite as dining room employees (waiters and wait-
resses) and bartenders. Some of these part-time employees
work for Respondent many weekends per year. Others work
only a few weekends; some only one weekend per year for
Respondent. Drossner testified that the part-time employees
who work more often for Respondent call in to see if work
is available, and they are assigned work then. If there are not
enough of those employees, Drossner must call others who
have worked for him in the past. If he still cannot find a suf-
ficient number of employees for a given weekend, he also
calls persons whom he has only heard about (from those
whom he has previously employed or anyone else). In the
past, Respondent has also secured some needed part-time
employees from a hiring hall operated by the Union.
Respondent has for many years recognized the Union as
the collective-bargaining representative of all of its employ-
ees, full time, regular part time, and casual. The recognition
of the Union has been memorialized in a succession of 3-
year contracts. Initially, bargaining was through an associa-
tion of Philadelphia kosher caterers, but in 1980 and 1983
Respondent signed separate agreements with the Union.
From the expiration of the 1983–1986 contract until early
1987, the parties engaged in some bargaining, but no con-
tract was reached. On April 22, 1987, the Union filed 8(a)(5)
charges alleging that, after expiration of the 1983–1986 con-
tract, Respondent had refused to sign a completed successor
agreement and that Respondent had failed to utilize the
Union’s hiring hall as required by the expired contract. The
charge that Respondent had refused to sign a completed
agreement was dismissed, but the General Counsel found
merit in the hiring hall allegations. On April 28, 1988, the
Regional Director approved a settlement agreement relating
to the hiring hall charges, and the bargaining for a contract
began anew thereafter.2 It is that bargaining that gave rise to
this case.
C. Facts
On May 4, 1988,3 Union Attorney Michael Katz wrote
Drossner asking to ‘‘meet and continue’’ negotiations for a
collective-bargaining agreement on ‘‘May 11, 12 (afternoon),
20, 25, 26 (morning), or 31 at [Katz’] office.’’ By letter
dated May 12, Drossner stated that his current and future ap-
pointments prevented his committing to a full day of negotia-
1027BARCLAY CATERERS
4 The more important credibility issues will be discussed, but, ex-
cept where noted, this narrative relies on Katz’ testimony which I
found credible and which, for the most part, was uncontradicted. 5 See fn. 3.
tions before the first week in July. On May 23, Katz wrote
back that such a delay was unacceptable, and requested that
negotiations begin on June 6. Drossner responded by letter
of June 1, stating that he would be available during the
mornings (only) of June 9, 15, or 20 at Respondent’s office.
Drossner explained his schedule to Katz and concluded:
As you can see during this time of the year I work
every day and almost every evening except Tuesday,
this being my one day off, and I think I deserve it.
Drossner testified that he did, and does, indeed work 7 days
per week, either in the daytimes, or in the evenings, or both.
On Mondays, Wednesdays, Thursdays, and Fridays, he works
during the days at Respondent’s facility. On Saturdays and
Sundays he makes the rounds of the catered events. On
Tuesdays, he takes off during the day, but he works Tuesday,
Wednesday, and Thursday evenings, by calling on customers
at their homes or at synagogues. Aside from Tuesday, day-
times, the only parts of his week that are not scheduled for
business are: Monday evenings (when Drossner (now) sees
his son), Friday evenings, and whatever is left of Saturdays
and Sundays after the catered events are over and he has
conducted necessary closing activities back at Respondent’s
facility.
Respondent’s busiest periods are centered around religious
holidays when Drossner is even busier, if anything. These
periods occur four or five times a year, and last 1 to 2 weeks
each.
By letter of June 9, Katz responded to Drossner’s June 1
letter stating that the Union would accept June 15. Katz en-
closed a contract that the Union had reached with one of Re-
spondent’s competitors, Norm the Caterer (Norm). Katz
asked Drossner to communicate, before June 15, if Respond-
ent could not accept any of the same terms in the Norm con-
tract.
First Bargaining Session: June 15, 1988
On June 15, Katz, along with then Union President Jim
Small, met with Drossner at Respondent’s office. Katz testi-
fied that the meeting lasted 1 hour.4 First, the parties dis-
cussed another charge that the Union had filed and with-
drawn; then they went to the issues between them. Katz
asked what term of the Norm contract that Drossner could
not agree to. Katz testified that Drossner listed as ‘‘open’’
matters: wages, eligibility for health and welfare and pension
contributions, hiring hall procedures, hours of work, and
retroactivity. Katz testified, ‘‘And I specifically asked him
whether there were any other issues and he specifically told
me that these were the only issues that needed to be re-
solved.’’ Drossner testified that he told the Union that wages,
pension eligibility, and the other topics listed by Katz were
‘‘some of the issues, but not all of the issues.’’ Drossner’s
testimony on this point came after blatant leading, and Katz
was the more credible witness. Therefore, I find that
Drossner said nothing, even by implication, to indicate that
Respondent doubted the majority status of the Union.
The Union informed Drossner of negotiations with another
of Respondent’s competitors, Betty the Caterer. Katz indi-
cated that a draft contract had been reached; Drossner asked
to be sent a copy, and Katz agreed.
Katz asked Drossner if he had any proposals; Drossner re-
plied that he did not, and the meeting adjourned with agree-
ment to meet on July 1.
Second Bargaining Session: July 1, 1988
A meeting was held on July 1, 1988. Drossner and Small
attended, but Katz did not. Small did not testify; Drossner’s
testimony did not touch on this meeting and there is no
record evidence of what happened.
Third Bargaining Session: December 21, 19885
This meeting and all subsequent bargaining sessions were
held at Katz’ office. Attorney Richard Martin appeared with
Drossner for Respondent. (Martin also appeared as counsel
at trial, and he testified about what occurred at the bargain-
ing sessions and what occurred between sessions.) Robert
Baker, a new union president, appeared with Katz. (Baker
testified, but not about any factual issues discussed here.)
Katz testified that he opened the sessions with demands
for unpaid fringe benefit contributions under the (expired)
1983–1986 contract, demands for a retroactive agreement for
the 1986–1988 period, and demands for a contract to begin
in January 1989. Only the last of these three demands is in-
volved in this case. (The parties never discussed the demand
for a retroactive contract. The parties did discuss the demand
for unpaid fringe benefit contributions, but only to the extent
of the Union’s demanding, and the Respondent’s supplying,
information necessary for an audit of Respondent’s payroll
for the 1983–1986 period.)
Martin proposed that any contractually established bargain-
ing unit be composed only of employees who worked 24
hours per week or more. Drossner stated that, by Respond-
ent’s definition, the unit would include only 20 to 25 part-
time dining room employees, in addition to the 6 commissary
employees. Katz responded that there had never been such
a minimum hours’ requirement for inclusion in the bargain-
ing unit, and that there could not be such a minimum be-
cause most of the employees went from job to job, working
mostly weekends.
Katz asked for the names, job classifications, dates of
work, and rates of pay of all employees whom Respondent
had employed during the preceding year, and he stated that
the Union would need this information to understand Re-
spondent’s proposal for a unit description limited by the
number of hours that employees worked. Katz testified that
‘‘they’’ said that Respondent would ‘‘get back to us.’’
The parties went through the Norm contract, but no agree-
ments were reached, according to this record.
The record does not indicate how long this meeting lasted;
however, Katz credibly testified that no meeting which he at-
tended lasted more than 2 hours.
Between the Meetings
On January 9, 1989, by letter of that date Katz requested:
‘‘the name, job classification, dates worked, and pay rates for
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
all of Barclay’s employees.’’ Katz stated that the Union
needed the information before the parties’ next meeting. Katz
further proposed meeting on January 23 or 25. Martin, in a
letter dated January 12, responded that
Mr. Drossner attempted to retrieve the data from the
computer and found that it could not be done pursuant
to the existing program. However, he is attempting,
through his accountant, to devise a program that will
enable him to extract said data. As soon as this has
been accomplished, the information will be forwarded
to you.
Mr. Drossner will be on vacation during the latter
part of January, 1989, and I will be on vacation for the
first week in February, 1989. Therefore, the proposed
dates are not satisfactory. Assuming I can provide the
requested information to you this month, I believe a
second meeting may be scheduled for mid-February,
1989. In the meantime, please provide me with alter-
native dates in that time period.
Martin followed with a letter dated February 27 suggesting
a meeting date of March 8. With this letter Martin submitted
a chart that had been created by Drossner. The rows of the
chart listed employee numbers, but not names. In columns
designating all weeks of 1988, the chart indicated a number
of jobs (zero to four) for the listed numbers. The employee
names represented by the numbers were not furnished. No
other information was provided at the time.
After receiving that information, Katz called Martin. At
some point a meeting date of March 13 was tentatively
agreed on, but Katz’ testimony is vague about what that ten-
tative agreement was. On March 13, Katz waited in his of-
fice (with Baker) for an hour waiting for Martin and
Drossner to appear. Katz credibly testified that he called
Martin’s office at 10 a.m. and a secretary told him that Mar-
tin was in California. No meeting was held.
The correspondence surrounding this aborted meeting is as
follows:
On March 13, Martin wrote Katz:
I had rearranged my schedule and prevailed upon my
client, Larry Drossner, to meet this morning with rep-
resentatives of Local 274 for the purposes of negotia-
tion. It is currently 9:30 A.M. and I have yet to hear
from you as to whether you have been able to confirm
the meeting for this morning. Therefore, I have advised
my client that the meeting has not been scheduled so
that he and I may attempt to reinstate our previous
plans.
My client and I will be available to resume negotia-
tions at a mutually agreeable time after March 24,
1989.
Also on March 13, Katz wrote Martin:
Your letter suggests that you and your client were in
your office as of 9:30 a.m. on March 13, 1989. I called
your office at 10:10 a.m. to inquire as to your where-
abouts, having expected your arrival for our meeting.
After certain delays where I was put on hold, your sec-
retary returned to the phone and advised that you were
not in and had departed for California. If there had
been any confusion concerning whether our meeting
was confirmed, I would have expected some type of
communication from you prior to the morning of our
meeting. Be that as it may, I am amenable to reschedul-
ing our meeting for after March 24 and in this regard
offer the following dates: March 27, 28 or 31, 1989.
Martin responded by letter of March 23 stating:
When you called my office on March 13, 1989, I
had not departed for California. I left on March 14.
1989. However, I was involved in other matters at that
time. Moreover, I had advised my client on the preced-
ing Friday that the meeting had not been confirmed. I
was not confused.
Martin further stated that his trial schedule prevented Re-
spondent’s meeting with the Union until ‘‘the latter part of
April’’ and asked Katz to ‘‘[p]lease let me know three (3)
alternate dates so that I may confirm one of them. Keep in
mind that [any] Friday is not an acceptable day of the week
for my client.’’
Fridays are Drossner’s busiest day of the week; on Fridays
he supervises Respondent’s final preparations for the week-
end appointments which constitute the entirety of Respond-
ent’s sales.
On May 4, Katz wrote Martin to request a meeting on
May 23 or 30 or June 1. By letters of May 8 and 10, Martin
responded that he could not meet on May 23 or 30, but did
agree to meet on June 1 at 2 p.m.
Fourth Bargaining Session: June 1, 1989
At this meeting only two issues were discussed: the re-
quested information and the next meeting date. Katz told
Martin and Drossner that the Union could not reply to Re-
spondent’s unit proposal without the information that it had
previously requested; Katz repeated the Union’s requests for
employees’ names, job classifications, rates of pay, and dates
worked, and he further stated that the Union wanted the ad-
dresses of all employees. Martin then stated that the informa-
tion would be provided if the Union paid all costs of retriev-
ing it, something that Katz refused to do.
The Union asked for meeting dates during the following
2 weeks; Drossner replied that he would be too busy to meet
any time before June 19. Martin stated that he would contact
Katz during the following week to inform the Union when,
after June 19, that Respondent could next meet. The meeting
lasted about 1 hour.
Between the Meetings
On June 15, Katz wrote Martin that he had received no
communication about subsequent meeting dates as promised
on June 1. Katz further demanded the names, addresses,
wage rates, classifications, and dates of hire of all current
employees. Katz stated that the Union would not pay to re-
trieve and produce the information, but would accept copies
of other records that contained the requested information, or
the Union would go to Respondent’s offices and copy the in-
formation from such other records. There was no response to
this letter by June 20. On that date the Union filed the
8(a)(5) charge in Case 4–CA–18150. Katz sent Martin a
copy of that charge by letter dated June 21.
1029BARCLAY CATERERS
On June 22, Martin sent Katz two letters. In the first,
which Martin sent before he got Katz’ June 21 letter (which
enclosed a copy of the charge), Martin stated that he and
Drossner would be available for negotiations on either July
6 or 10; Martin asked Katz to indicate which the Union
would accept. Martin also stated that Respondent would pro-
vide
payroll information for its full time kitchen staff and
regular part-time employees at the negotiations to be
scheduled. My client does not believe you are entitled
to any information for employees who have worked for
Barclay Caterers on an irregular basis for such short pe-
riods of time such [sic] that they would not [sic] be
considered ‘‘extra’’ or ‘‘casual’’ employees within any
definition employed by the NLRB. To the extent that
certain employees fall within a gray area in between,
my client is willing to discuss and attempt to resolve
such issues with the Union on a case by case basis.
You have already been supplied with a list of employ-
ees (by numbered code) which shows the frequency of
their employ and the number of hours worked over the
past year. [The parentheses are in the original.]
Martin concluded this letter by offering to negotiate on the
issue of including casual employees in the unit.
In Martin’s second letter of June 22, he stated:
I was surprised that you felt the necessity of filing a
ULP charge given the circumstances but, since you did,
I believe it makes sense to have the NLRB determine
the issues. Thereafter, you may feel more comfortable
with the bargaining process.
By letter of June 27, Katz asked Martin if his second letter
of June 22 was a withdrawal of Martin’s offer to meet on
July 6 or 10. Martin did not respond.
On July 14, Martin did write Katz that he and Drossner
would be available for negotiations on July 19 and 31 and
asked Katz to ‘‘[p]lease confirm a date and time.’’
On July 28, Katz responded that he could not meet on ei-
ther date and offered to meet on August 7, 9, 14, 23, and
24. Katz further asked whether Respondent would provide
the previously requested information.
By letter dated July 31, Martin asked Katz to let him
know if the Union wished to inspect, prior to the parties’
next meeting, information (unspecified) about employees
whom Respondent considered to be full-and regular part-time
employees. Martin further stated that, except for August 14,
he was not available to meet on any of the dates suggested
by Katz’ letter of July 28 and that he would check with
Drossner about August 14. Martin also stated that he would
not be available for a 3-week period beginning September 5.
By letter dated August 3, Katz objected to Respondent’s
delays in meeting and informed Martin that he awaited a re-
sponse to his request to meet, at least, on August 14. Katz
further stated that the Union could come to Respondent’s of-
fice to inspect information at any time during the week of
August 7.
In a letter dated August 9, Martin wrote Katz:
I am advised by my client that the following dates
and times are available for negotiations:
Thursday, August 24, 1989—Afternoon
Wednesday, August 30, 1989—Morning
Thursday, August 31, 1989—Afternoon
Please confirm one of the dates above for the next
meeting. I hope to be able to provide you with the in-
formation requested, as qualified in my letter of June
22, 1989, prior to that meeting.
Martin made no reference to his prior suggestion of August
14 as a meeting date; he did not respond to the Union’s offer
to inspect documents during the week that had begun on Au-
gust 7.
By letter dated August 11, Katz repeated his request to
meet on August 14 and asked again for the information that
the Union had begun to request in December 1988, and had
continued to request through the parties’ meeting of June 1.
Martin did not respond.
On August 21, Katz informed Martin by hand-delivered
letter that the Union agreed to August 31, as suggested in
Martin’s letter of August 9. Katz further requested produc-
tion of previously demanded information before meeting on
August 31.
Fifth Bargaining Session: August 31, 1989
There is no testimony about what happened at this meet-
ing; Katz did not attend, and Martin’s testimony does not
mention the meeting. David Wolfe, then an associate in
Katz’ law firm, attended on behalf of the Union, but Wolfe
did not testify. The parties stipulated into evidence a letter
dated August 31, 1989, from Martin to Katz which was ap-
parently given to Wolfe at the bargaining session of that
date. Martin’s letter states:
Presented herewith are the computer runs for the
year 1989, which constitute all payroll records of Bar-
clay Caterers for that year. You will note that only the
employee names, wage rates per job, dates worked and
social security numbers are included. Barclay Caterers
maintains no list of employee addresses or job classi-
fications.
The records produced by Respondent at the August 31,
1989 meeting were not placed in evidence. Presumably, they
included all records that Martin’s letter of August 31 rep-
resented to be enclosed.
Between the Meetings
On September 1, by letter of that date, Wolfe wrote Martin
complaining that the records that had been produced the pre-
vious day had not included the employees’ addresses, phone
numbers, classification, or pay rates. Wolfe further asked
Martin to contact Katz about further meeting dates, and fur-
ther asked that Martin communicate before the parties’ next
meeting what issues were outstanding between the parties.
By letter of September 6, Martin told Katz:
I have confirmed with my client that the following
dates are available for the next meeting:
Thursday, September 21, 1989—1:30 p.m.
Monday, September 25, 1989—1:30 p.m.
Wednesday, October 4, 1989—1:30 p.m.
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Martin’s letter made no reference to information requests (or
anything else).
Katz responded with two letters of September 7. The first
objected to the refusal of Respondent to meet before Septem-
ber 21. Katz requested a meeting on September 12 or 15, and
he requested meeting on a weekly basis thereafter. Katz fur-
ther repeated Wolfe’s request for Respondent’s specification
of outstanding contract issues and Respondent’s position on
each.
In his second letter of September 7, Katz offered that the
Union would ‘‘glean’’ any records that Respondent pos-
sessed to get the requested information. Katz stated that em-
ployers usually kept the records that had previously been re-
quested, and he recapitulated the Union’s requests:
So that there is no confusion, the specific information
we desire includes the names, addresses, social security
numbers and classifications for all employees, an
itemization of all jobs worked including the date of
each job, where applicable to employees such as kitch-
en employees who worked on a per diem as opposed
to per job basis, the dates of all ‘‘days’’ worked, and
the wages paid to all employees as reflected by your
periodic payroll records in accordance with your normal
payroll period.
Would you please advise when the above informa-
tion will be provided.
By letter dated September 12, 1989, Martin replied to
Katz:
I am in receipt of both of your letters dated Septem-
ber 7, 1989.
First, with regard to the proposed dates for negotia-
tions, I am sorry that you choose to characterize the
dates given for future negotiations as ‘‘unacceptable’’
and as representing ‘‘undue delays in meeting.’’ Per-
haps you do not realize that, except for one person in
the office, Larry Drossner operates this entire business
without assistance. His obligations to his customers re-
quire his personal attention both in an out of the office
on a daily and nightly basis. In addition, on those occa-
sions when Mr. Drossner does find free time to partici-
pate in negotiations, he must coordinate his time with
mine. I am the only attorney in this firm with any
knowledge or experience in the labor relations field.
While I do not feel that either my client or I owe you
an explanation, I am writing only in an attempt to make
you realize that your needs and those of your client do
not and will not supersede all other concerns of either
Mr. Drossner or the undersigned. Our obligation is to
bargain with Local 274 in good faith. We believe we
have done so and we intend to continue to do so. How-
ever, I do not believe that obligation requires that either
my client or his counsel agree to the dates you des-
ignate or which are convenient only to you and your
client nor do I believe that good faith bargaining re-
quires weekly meetings.
With the Jewish Holidays coming up, which is a
busy period for my client, it is impossible to meet your
demands for meetings and my client’s business could
suffer immeasurable damage if he attempted to do so.
The dates given to you were an attempt to balance
many competing interests. I expect you and Local 274
to select one of those dates and to confirm the same
with me forthwith. If you are busy on all three dates,
let me know and I will explore other possibilities. By
the time I received your letter of September 7, my
schedule would not permit a meeting on Tuesday after-
noon or on Friday, February [sic] 15, 1989.
With regard to the payroll records provided and
those additional records for other years that were of-
fered, I can only advise you that those are the payroll
records. If there is a ‘‘type normally and customarily
maintained by an employer,’’ I must report that Barclay
appears to be the exception. My client keeps no ad-
dresses or job classifications in his payroll runs nor is
such information necessary to his business. You have
already filed an unfair labor practice charge relating to
the failure to provide records, I am certain the matter
will be resolved in due course as a result of those
charges.
By letter of September 18, Katz responded by objecting to
the infrequency of meetings and stated that he was accepting
both the September 25 and October 4 dates mentioned in
Martin’s letter of September 6. Katz further acknowledged
that certain information (relating to the Union’s claim for
fund contributions under the 1983–1986 contract, not in-
volved here) had been provided, and Katz suggested methods
for reviewing the remaining information.
By letter of September 19, Martin stated that Respondent
would meet when it was ‘‘mutually’’ convenient and that:
If you feel that my client is in possession of certain in-
formation which you are entitled, please identify with
specificity the information your client wishes to see and
the document known to you to contain the same. . . .
My client does not maintain records containing job
classifications or addresses. [Emphasis in original.]
With regard to the dates of the next meeting, my cli-
ent offered alternate dates. Would you like September
25 or October 4?
Martin further asked Katz to identify what information the
Union was still seeking.
By hand-delivered letter of September 20, Katz stated that
Respondent had not provided job classifications for each em-
ployee, rates of pay, and dates of work. Katz further re-
quested that the information be updated from to date. Katz
pointed out that the addresses could be obtained from the
employees’ W-4 forms.
In the September 20 letter Katz selected September 25
from the two dates proposed by Respondent and stated:
With respect to our next meeting, I have already
made clear that we desire to meet on September 25,
1989 at 1:30 p.m., at my office, in accordance with
your prior correspondence. Given that you and your cli-
ent have also made available the date of October 4,
1989 and hence apparently have no existing scheduling
conflicts for that date, we further request to meet on
October 4. We believe you have an obligation to do so
but whether you agree to meet on that date is, at this
1031BARCLAY CATERERS
6 As described by Katz in his testimony, the Union’s proposal was:
‘‘If you were a dining room employee as opposed to a kitchen em-
ployee, you had to qualify by working 21 jobs in a year, and then
from the 22nd job on, you would get paid your fringes, and then
in the following year, you would continue to receive them and, at
the end of that year, if you hadn’t worked 21 jobs, then you would
be disqualified and you would have to re-qualify in the following
contract year.’’
7 See fn. 1.
juncture, under your unilateral control. If you are refus-
ing to meet on October 4 in light of the Union’s con-
firmation of the September 25 meeting, then without
prejudice to our position I offer to you the additional
dates of October 5, 6, 11, 12, 1989 for further meetings
after September 25. As I have previously noted to you,
consistent with the requests made by David Wolf, Es-
quire on August 31, 1989 and as confirmed in this of-
fice’s correspondence of September 1 and 7, 1989, I am
still awaiting receipt of Barclay’s statement of outstand-
ing issues and proposals or position with respect there-
to.
In a letter dated September 25, which Martin caused to be
hand delivered on that date, Martin informed Katz:
Since you have apparently refused to select one of
the three alternate dates proposed for our next meeting
in a timely manner, I regret to inform you that Septem-
ber 25, 1989 is not available for a meeting.
Martin closed by stating that Respondent would meet with
the Union on October 4 at 1:30 p.m.
By letter also dated September 25, and also hand delivered
on that date, Katz protested the cancellation of that day’s
meeting, but agreed to the October 4 date. Katz further asked
to have Respondent’s proposals by October 2.
During the week before October 4, Respondent submitted
to the Union a contract proposal which was complete except
for health and welfare and pension issues. The proposed rec-
ognition clause excluded all ‘‘extra and casual’’ employees,
which the proposal defined as those ‘‘who may perform bar-
gaining unit work for the employer on an irregular basis, de-
fined as less than fifty (50) jobs in any given calendar year.’’
As previously noted, Respondent had recognized the Union
as collective-bargaining representative of all Respondent’s
employees, regardless of the number of jobs they worked
during a year.
Sixth Bargaining Session: October 4, 1989
The Union was represented by Katz and Bob Baker, the
Union’s president. Respondent was represented by Martin
and Drossner.
Baker asked why the 1983–1986 contract between the par-
ties could not serve as a basis for a new agreement. Drossner
replied that, as well as wages, the parties had to deal anew
with the issues of scope of the unit, hiring hall procedures,
checkoff, and vacation pay for part-time employees. Drossner
stated that the unit scope issue had to be determined before
Respondent could make proposals on health and welfare and
pension issues. The Union asked for a list of all employees
who would be covered by Respondent’s proposal for unit
scope. Respondent agreed to provide that information after
the meeting.
Between the Meetings
On October 16, Martin wrote Katz that he was enclosing
‘‘the list of employees who would be encompassed within
the unit delineated in Barclay Caterers’ most recent pro-
posal.’’ Martin’s enclosure was an October 13 letter from
Drossner to Martin stating:
Below you will find a list of employees of Barclay
Caterers that would be covered by the scope of the pro-
posed contract. These people are based on 1988 figures
and estimated 1989 figures.
Drossner’s letter then listed the names of 24 employees. Ap-
parently by telephone conference, the parties agreed to meet
on November 6, 1989.
Seventh Bargaining Session: November 6, 1989
Katz told Martin and Drossner that Respondent’s proposal
to exclude employees from the unit on the basis of jobs
worked was unacceptable. The Union proposed, however,
that casual employees would be considered part of the unit,
but Respondent would not be required to pay fringe benefits
unless an employee worked 21 jobs in a year.6 Martin
counterproposed 40 jobs per year as a threshold for fringe
benefit entitlement. No agreement was reached.
At some point in the November 6 meeting, Respondent
stated that casual employees would not want to work for Re-
spondent if they had to pay full monthly dues. Katz replied
that casual employees would only be charged per diem dues.
After the meeting had gone on about an hour, either
Drossner or Martin said that they had no more time for nego-
tiations that day. Katz asked to meet on November 14, 15,
and 16. Martin stated that he could meet on none of those
days.
Between the Sessions
There were no meetings between the parties between No-
vember 6, 1989, and January 4, 1990. Katz testified that the
parties used the month of December to prepare for trial of,
and attempt settlement of, the unfair labor practice charges
in this case.7 Those charges were at the complaint stage; the
complaint alleged that Respondent was wrongfully withhold-
ing the following information about unit employees: names,
job classifications, dates worked, and rates of pay.
On December 27, 1989, Katz wrote Martin that he would
withdraw the charge underlying the then-outstanding com-
plaint if Respondent would furnish the information specified
in that complaint. By letter of December 29, Martin re-
sponded:
I wish to clarify an apparent misunderstanding. I ad-
vised the Board Agent at the NLRB, in response to his
inquiry, that Larry Drossner would answer questions
and clarify any information on the computer printouts
(already supplied to you) that is either coded or not eas-
ily understood. . . . Finally, I indicated that Barclay
Caterers would, upon request, attempt to compile the
addresses for those employees whose names are identi-
fied on the October 13, 1989 list of core employees.
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
By letter dated January 3, 1990, which was hand delivered
on that date, Katz asked that Respondent bring to the January
4 meeting the addresses of the ‘‘core’’ employees.
Also on January 3, the Union also delivered to Respondent
a complete contract proposal. The Union proposed that it
would represent all Respondent’s employees. The proposal
listed separate benefits for three categories of employees,
steady, part time, and extra. The proposal defined ‘‘steady
employees’’ as those who ‘‘receive pay from the Employer
on a full time basis, regardless of the Employer’s need.’’
‘‘Part-time employees’’ were defined as ‘‘all employees used
by the Employer on a regular basis and who are paid on a
per job or per day basis.’’ ‘‘Extra’’ employees were defined
as as ‘‘all employees who are employed as needed on a per
job or per day basis when the Employer’s staffing needs ex-
ceed available steady and part-time employees.’’
The proposal included a provision that welfare and pen-
sion benefits applied to extra employees on the 21st
‘‘day/job’’ worked by such employees for Respondent or for
any other employer who employed employees ‘‘within the
jurisdiction of the Union.’’
Eighth Bargaining Session: January 4, 1990
The parties discussed employer contributions to union
health and welfare and pension funds. Katz testified:
We then spoke more about the health and welfare
and pension contributions, and we picked up on the
threshold criteria that we had discussed the last time.
The employer suggested a 35 job [per year] threshold,
and we told them that that would be fine. That con-
stituted a change from our initial proposal of 21, and
their initial proposal of 40, and we specifically agreed
that that would be an acceptable resolution.
Drossner and Martin disputed this testimony, as I will dis-
cuss later.
The meeting ended after about an hour when Martin and
Drossner said that they had no other proposals to make, and
that they had to leave.
Between the Sessions
On January 17, Martin submitted to Katz a proposal in re-
sponse to the Union’s January 3 proposals.
This was a complete contract proposal, the recognition
clause of which provided:
the Employer’s steady employees who are classified as
cooks, kitchen employees, bartenders, waiters, wait-
resses, busboys, captains, hand head waiters, excluding
extras and casual employees as defined herein . . . .
The proposal does not define ‘‘extra’’ or ‘‘casual’’ employ-
ees. It does define ‘‘steady employees’’ as ‘‘those core em-
ployees of the Employer who receive pay from the Employer
on a full-time basis.’’ (Only the six commissary employees
would have fit within that definition.) Following the recogni-
tion clause, the proposal defines ‘‘part-time employees’’ (as
‘‘all employees used by the Employer and paid on a per job
or per day basis’’), but the Union was not expressly pro-
posed to be recognized as collective-bargaining representa-
tive of such employees.
Respondent’s January 17 proposal contained a union-shop
clause that applied only to steady employees, and the
Union’s hiring hall would be utilized only after ‘‘the Em-
ployer’s list of part time employees [otherwise undefined] is
exhausted.’’
Employee protections, such as those concerning layoff and
discharge, apply only to steady employees. Rules (uniforms,
appearance) apply to all employees. The contract did specify
wages and other benefits for waiters and other weekend help,
but, again, Respondent was not proposing that the Union
would represent waiters or any other part-time employees.
Respondent’s January 17 proposal made no health and
welfare proposal, but it did provide, in regard to pensions:
Contributions for all part-time employees or new em-
ployees shall also be paid on a per-job/day basis (as ap-
plicable); however, no such contributions shall com-
mence until the fortieth (40th) day/job . . . .
Ninth Bargaining Session: January 18, 1990
At this session, the Union listed the remaining information
that it wanted as a condition for withdrawing the then-out-
standing unfair labor practice charges. Katz told Martin and
Drossner that the Union wanted the names and addresses of
all employees employed in 1989 and the classification of
each employee. Katz pointed out that previously submitted
information listed employees only by departments, such as
kitchen or dining room employees; the Union could not tell
if a kitchen employee was a cook or a dishwasher, and it
could not tell if a dining room employee was a food server
or a bartender. Katz further asked for an updated analysis of
how many jobs each employee had worked during 1989; the
figures that were previously given only covered through the
previous July and was stale. Respondent promised to provide
the information by February 5, a date the parties, at least ten-
tatively, agreed to for their next meeting. Katz testified that,
in return for the promise of information, the Union agreed
to withdraw charges that supported a then-outstanding NLRB
complaint.
The parties went through the Respondent’s proposal which
had been submitted to the Union the previous day. Although
Katz testified that the Respondent had previously agreed to
a 35-job threshold for welfare and pension benefits, he did
not testify that he made any point about Respondent’s 40-job
threshold proposal that was then on the table. This has
caused me concern in making a credibility resolution on the
matter; however, because Katz was not interrogated about the
matter, and given a chance to explain (his possible oversight
at the bargaining session), I cannot conclude that there is a
fatal inconsistency in his testimony.
The parties agreed to meet on February 5, Martin’s trial
schedule permitting. The meeting lasted about 1-1/2 hours.
Between the Sessions
Martin and Drossner, without informing the Union, did not
appear for the February 5 meeting.
By letter of February 7, Martin transmitted to Katz a list-
ing of 130 employees ‘‘who worked as of the year ending
1989.’’ For 126 of these names, addresses were also listed.
(No explanation was given for the lacunae.) The transmittal
also included charts indicating the numbers of catered events
1033BARCLAY CATERERS
8 Although specific interpretation is not required, I would find that
Martin’s notes indicated that neither Respondent’s extreme proposal
of 50, nor the Union’s extreme proposal of 21, was being agreed to
as a threshold, and a compromise of 35 was.
that each named employee worked during each week of
1989. Martin’s cover letter closed:
Mr. Drossner will be prepared to review the work as-
signments of each employee at out [sic] next bargaining
meeting. With regard to that meeting, I will make an
effort to confirm the afternoon of February 12, although
to date I have not been able to do so. As we discussed
at our last meeting, I will be out of the office from
February 15 through March 1, 1990. I am scheduled for
depositions on February 13. I will let you know about
the 12th as soon as I hear from Mr. Drossner.
Martin did not mention February 14, a Wednesday.
On February 8, Martin wrote Katz:
Today I received a call from Larry Drossner’s moth-
er, who advised me that Mr. Drossner is on vacation,
out of state, until February 14, 1990. Therefore, I sug-
gest we think about our next meeting for a date during
early March. As you know, I will be out of the office
from February 15 through March 1, 1990.
With regard to the materials that I forwarded to you
with my letter of February 7, in addition to his review
of the work assignments of each employee, Mr.
Drossner will state the rates of pay for all of those em-
ployees.
After another exchange of letters Katz and Martin agreed
that the next bargaining session would be on March 14.
Tenth Bargaining Session: March 14, 1990
Martin opened the meeting by saying that he could stay
no more than 1 hour at the bargaining session because of a
court-ordered deposition. The meeting lasted 1 hour and 15
minutes.
The parties reviewed Respondent’s proposals and noted in-
ability to agree on several sections because there was no
agreement on which casual employees, if any, would be in-
cluded in the unit. Those sections included: seniority, vaca-
tions, and pension and health and welfare. Some agreements
were reached in other areas.
During the session, Drossner mentioned that the kitchen
employees were covered by Blue Cross and Blue Shield.
Katz asked for a copy of the plans and further asked for the
names of the employees who were then covered. Katz testi-
fied that neither Martin nor Drossner replied.
On direct examination, Katz testified:
[T]hen, at that point, they informed us that on the ques-
tion of the formula that we had discussed previously re-
garding eligibility for dining room employees, that they
were back up to the number of 40 jobs that had been
proposed in their contract, in their proposals, and that
they would not agree to 35. . . . I commented that this
was inconsistent with what had happened at the last
sessions, and they indicated that that was [nevertheless]
their position.
Katz testified that the only reason that Respondent gave for
its change of position was that Respondent did not want ‘‘to
pay for the people that they were calling part-timers.’’
Martin and Drossner testified that there was never an
agreement on a formula of 35 jobs per year as a threshold
for benefits, or inclusion in the unit. However, Martin’s notes
for January 4 state:
35 threshold ?? (not 21—not 50)
(The double underline of ‘‘35’’ is original.) Martin could
give no explanation for his marks. He denied making the
proposal of 35 as a threshold; he agreed that someone had;
but he testified that he could not remember who it was.
Martin was incredible in his denial. The allegation that Re-
spondent had reneged on a tentative agreement was not
something first brought up at the hearing. It was made the
subject of an amendment of the charge in Case 4–CA–18777
on May 3, 1990, as well as the complaint. That is, the matter
was called to Martin’s attention earlier, when his memory
would have been fresh. When his attention was focused early
on the matter, he would have recalled which version of this
strenuously contested issue was the truth, and he would have
remembered the truth thereafter. I believe that Martin was
trying to hide behind the I-don’t-remember shield as a last
refuge of one who will not admit the plain truth: Respondent
proposed the 35-job threshold, and there was agreement to
it as Katz testified, and as Martin’s notes corroborate.8
Drossner was no more credible than Martin; he appeared
to be indulging in results-oriented testimony, and little more,
at least on this point.
In summary, I credit Katz on this point.
As the meeting broke up, Katz asked for a commitment
for the next meeting date. Martin refused and stated that he
would contact Katz within 48 hours. Katz testified:
I reiterated that the Union was available any day of
the week between 7:00 a.m. or [sic] 8:00 o’clock at
night; that we were ready willing and able to meet any
time, any day, anywhere; all I wanted to do was [have]
regular meetings.
Martin did not reply to Katz.
After the Final Bargaining Session
By letter of March 20, 1990, Katz repeated to Martin his
offer to meet at any hour in order to have regular meetings.
Katz further repeated his request for information about the
hospitalization plan maintained by Respondent, and a listing
of the employees who were then covered. Finally, Katz asked
for responses to his requests. Martin did not respond.
On April 20, Martin sent to Katz a letter (dated April 18)
from Drossner to Martin. In his letter Drossner states:
Barclay Caterers, Inc., offers to its full time employ-
ees medical coverage consisting of Blue Cross $250.00
Deductible Plan, Blue Shield 100 and Major Medical.
Should you need any other information concerning
these plans, feel free to call me at any time. I only have
one set of booklets explaining these plans, so I cannot
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
send it to you, but Blue Cross of Pa. could probably
supply you with that.
Drossner also named the six (kitchen) employees who were
covered by the plans.
On April 23, Katz again wrote Martin asking for a sched-
ule of regularly held meetings and for meetings of longer du-
ration.
On April 24, 1990, Martin replied to Katz stating:
My client, as you have been advised over and over,
is a one-man operation, i.e. Larry Drossner. Although
his mother helps out from time to time in the office,
the entire business is administered by Mr. Drossner. He
has met with you as often and, on each occasion, as
long as the proper and efficient management of his
business will permit. On some occasions, my schedule
conflicts with the dates and times when Mr. Drossner
is available. We do the best we can to be available for
bargaining at ‘‘reasonable’’ times.
After referring to the unfair labor practice charge, Martin
concluded:
I am sorry you and Local 274 chose to proceed in
this manner. Perhaps it would be best to obtain a ruling
from the NLRB relative to our good faith in the bar-
gaining process.
Martin did not propose any dates for meeting or provide any
information in his letter.
On December 17, 1990, by Martin’s letter of that date to
Katz, Respondent provided to the Union the hospitalization
coverage booklets that the Union first requested on March
14, 1990.
Drossner testified on behalf of Respondent. He had, as he
admitted, no notes or independent recollection of how long
each bargaining session lasted; therefore, I have credited
Katz’ testimony in this regard.
On direct examination Drossner was asked about the
names and addresses’ issue:
Q. Did you turn that over to the Union?
A. Well, we eventually—eventually we turned over
the records. I called up my accountant again [sic] and
asked if there is anything in the computer that we can
pull out, names and addresses and phone numbers, and
he says he has nothing in [the computerized payroll
files].
What I had asked him to do eventually is pull out
names and addresses off the W-4’s.
When asked on direct examination about his attempts to
meet with the Union, Drossner further testified:
Well, I tried on the best of my part going through my
scheduling that I have and my weekly work schedule,
also, my appointments are usually made two weeks in
advance, to try to schedule meetings as frequent as pos-
sible which would not interfere with my basic operating
of my business. . . .
You [Martin, counsel for Respondent] would call me
up and ask me what dates I had available and then you
would tell me what dates you had available . . . how
your scheduling was, and then we would try and work
things out the best that we could within our schedule
together before turning that over to Mr. Katz.
D. Analysis and Conclusions
1. Majority status of Union
Respondent denies that the Union has requested bargaining
as representative of employees in a unit appropriate for bar-
gaining within the meaning of Section 9(a) of the Act. Re-
spondent further denies that the Union represents a majority
of employees in any appropriate unit.
At the hearing, counsel for the General Counsel cited as
authority on both issues raised by these denials Chemetron
Corp., 258 NLRB 1202 (1981). In Chemetron the employer
recognized the union as the collective-bargaining representa-
tive of two employees who had such dissimilar terms and
conditions of employment that the Board, in the first in-
stance, would not have found appropriate a unit composed of
only them. The employer conducted one bargaining session
at which it questioned neither the appropriateness of the unit
nor the majority status of the union in that unit. Thereafter,
the employer was presented with evidence that indicated that
the union did not continue to enjoy a majority status in the
recognized unit. On such evidence, the employer withdrew
recognition. A charge was filed and an 8(a)(5) and (1) com-
plaint issued.
The Board held:
This is not a case in which the Board is being asked
to define an appropriate unit, to direct an election, or
to certify the results of such an election, or to certify
the results of such an election. It is therefore unneces-
sary to decide whether we would find the unit appro-
priate were the issue raised in such a context. As the
Board has held:
The Board may appropriately issue a bargaining
order covering a unit which it could not have ini-
tially certified under the Act, but concerning which
the parties have knowingly and voluntarily bar-
gained.3
Having voluntarily recognized and bargained with
the Union as the collective-bargaining representative
. . . Respondent argued for the first time at the hearing
herein that the unit is inappropriate because the em-
ployees lack a distinct community of interest. We reject
this belated attempt to repudiate the voluntary recogni-
tion.4 A contrary holding would fly in the face of our
statutory obligation to promote stability in bargaining
relationships.
3 Arizona Electric Power Cooperative, Inc., 250 NLRB 1132, 1133
(1980).
4 Berbiglia, Inc., 233 NLRB 1476, 1494 (1977).
In Chemetron, the Board further rejected the contention that
the Board should consider evidence that the union no longer
represented a majority of employees in the bargaining unit.
The Board noted that:
It is well established, however, than after an em-
ployer voluntarily recognizes a union, the Union enjoys
1035BARCLAY CATERERS
9 This evidence is a blocked decertification petition and the inabil-
ity of the Union to produce at the hearing, in response to Respond-
ent’s subpoena duces tecum, any documentary evidence of majority
status.
an irrebuttable presumption of continuing majority sta-
tus for a reasonable period of time.5
5 San Clemente Publishing Corporation, 167 NLRB 6 (1967); Keller
Plastics Eastern, Inc., 157 NLRB 583 (1966); Brown & Connolly, Inc.,
237 NLRB 271, 275 (1978).
The period of time that the employer afforded for bargaining
was held inadequate because, after granting recognition and
conducting only one bargaining session, the employer de-
layed meeting with the union for a second session; then it
withdrew recognition altogether. The Board observed that the
single bargaining session that was conducted lasted only 45
minutes and stated:
Thus, aside from certain limited information pro-
vided during the 3-1/2 months prior to Respondent’s
withdrawal of recognition took [sic] place in a single
45-minute meeting. In evaluating the parties’ bargaining
history to determine whether a reasonable period has
expired following a voluntary recognition, we look not
simply to the passage of time, but also to the use the
parties have made of that time. The Board has consist-
ently declined to set arbitrary standards by which such
negotiations might be judged. The single 45-minute ses-
sion which was held here, however, would not con-
stitute a ‘‘reasonable period’’ under any fair analysis.
The Board found a violation of Section 8(a)(5) because the
employer had withdrawn recognition before a ‘‘reasonable
period’’ of time for bargaining had elapsed following the
voluntary grant of recognition.
Chemetron is indistinguishable from the case at bar. In
Chemetron the employer withdrew recognition after a too-
brief bargaining session. Here, as I find infra, immediately
after resuming bargaining, necessarily recognizing the Union
anew, Respondent began a course of unlawful delays and un-
lawful withholding of information. Therefore, under
Chemetron, because of the violative conduct following the
voluntary recognition, the Union’s status as majority rep-
resentative cannot be questioned here.
Despite its singular applicability of Chemetron, and despite
the fact that counsel for the General Counsel cited
Chemetron at the hearing, Respondent does not attempt to
distinguish, Chemetron on brief. Instead, Respondent cites
cases that turn on evidence not comparable to that in this
case; i.e., none of the cases that Respondent cites involves
an employer’s voluntary recognition followed by a course of
unlawful bargaining tactics. Therefore, the cases on which
Respondent relies and certain evidence of lack of majority
status on which Respondent relies,9 are insufficient, legally
and factually, to rebut the presumption of the Union’s major-
ity status that arose at the parties first bargaining session on
June 15, 1988.
Accordingly, I find and conclude that the Union has rep-
resented, and does represent, a majority of Respondent’s em-
ployees, including casual employees, in the unit set forth in
the 1983–1986 collective-bargaining agreement between the
parties.
2. Dilatory tactics
Section 8(a)(5) of the Act requires employers to bargain
with collective-bargaining representatives such as the Union;
Section 8(d) defines that duty:
For the purposes of this section, to bargain collec-
tively is the performance of the mutual obligation of the
employer and the representative of the employees to
meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions
of employment, or the negotiation of an agreement.
The issue is whether Respondent has complied with this stat-
utory duty.
The tempo of bargaining was determined by Drossner’s re-
sponse to the Union’s first request after the settlement agree-
ment of April 28, 1988. By letter of May 4, Katz requested
that bargaining begin immediately. Drossner’s initial re-
sponse was that he could not meet for bargaining until late
July, and that he would not meet for more than half a day.
When the parties did meet, it was for only 2 hours, at the
most. Substantial delays between the briefest of meetings be-
came the pattern of negotiations that continued into the limi-
tations period of Section 10(b).
The specific issue framed by the complaint is whether,
since December 21, 1988, and continuing through March 14,
1990, Respondent failed to meet with the Union at reason-
able times for purposes of negotiations.
The Union did everything but beg for meeting dates. How-
ever, as Martin’s letters and Drossner’s quoted testimony
make clear, after December 21, 1988 bargaining session
dates were agreed on only after all commercial necessities of
Respondent, and all law practice commitments of Respond-
ent’s counsel, were considered and satisfied. The question
arises: Did either the busy schedule of Drossner, or the busy
schedule of Respondent’s counsel, relieve Respondent of the
obligation to meet for bargaining more often than it did?
Drossner is a busy man. However, the obligation to meet
at reasonable times is not diluted by the demands of Re-
spondent’s business. In the case of J. H. Rutter-Rex, Inc., 86
NLRB 470 (1949), the Board stated:
The obligation to bargain collectively surely encom-
passes the affirmative duty to make expeditious and
prompt arrangements, within reason, for meeting and
conferring. Agreement is stifled at its source if oppor-
tunity is not accorded for discussion or so delayed as
to invite or prolong unrest or suspicion. It is not unrea-
sonable to expect of a party to collective bargaining
that he display a degree of diligence and promptness in
arranging for the elimination of obstacles thereto com-
parable to that which he would display in his other
business affairs of importance.
That is, Drossner was not privileged to subordinate to all
other business considerations to Respondent’s statutory obli-
gation to meet and bargain with the Union at reasonable
times.
Nor was Respondent free to evade its statutory responsibil-
ity to meet at reasonable times by employing as a representa-
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tive an attorney (or anyone else) who could not meet at rea-
sonable times. The ‘‘busy lawyer’’ defense has never been
held to excuse a pattern of chronic delays between bargain-
ing sessions. As stated in NLRB v. Exchange Parts Co., 339
F.2d 829, 832 (5th Cir. 1965):
Respondents appear not to challenge that part of the
Board’s order based on its findings that they adopted
‘‘delaying tactics in connection with the scheduling of
meetings.’’ The record shows that only an average of
8 hours per month were consumed with negotiations
during a period of 8 months covered by the record. It
is plain that the negotiations were carried on primarily
on behalf of respondents by a busy and successful law-
yer, Mr. Harold Mueller. It is understandable that in a
busy law practice some difficulty arises giving as
prompt consideration to the requests of a representative
of the opposing side as would entirely satisfy the latter.
Nevertheless, we conclude that the inherent difficulty
arising when a lawyer in full practice represents the
employer in bargaining sessions does not exempt the
employer from the normal requirements that nothing be
done for the purpose of stifling an opportunity for dis-
cussion. There remains on the employer the positive
legal duty to meet and confer with the Union at reason-
able times and intervals.
All of which is to say that neither the ‘‘busy schedule’’
of Drossner, nor the ‘‘busy schedule’’ of Martin, nor the two
‘‘busy schedules’’ combined, provide an excuse for non-
compliance with the obligation of Section 8(d) to meet for
bargaining at reasonable times. Therefore, to the extent that
substantial delays were attributable to the ‘‘busy schedules’’
of Drossner or Martin, there exists evidence of a violation
of Section 8(a)(5).
On January 9, 1989, or about 2 weeks after the parties’
third bargaining session on December 21, 1988, Katz wrote
Martin requesting a meeting for January 23 or 25, 1989.
Martin, in his letter of January 12, refused, citing his vaca-
tion and Drossner’s vacations as reasons. Martin told Katz
that Katz should request a mid-February meeting. The Gen-
eral Counsel does not question the sincerity of Martin’s state-
ments that he and Drossner would be on vacation during late
January and early February, and it must be concluded that,
from the beginning of the 10(b) period until at least mid-Feb-
ruary, there is no evidence of dilatory tactics on the part of
Respondent.
There is also no evidence that Respondent was responsible
for the delay between mid-February and the (tentatively
scheduled) March 13 meeting date. Katz was obscure in his
testimony about how a March date was established, and there
is thus no way to conclude that the delay between the third
session and March 13 is attributable to dilatory tactics by Re-
spondent.
However, at one point during the 5-month period between
the third and fourth bargaining sessions the parties did sched-
ule, at least tentatively, a meeting for March 13. Martin’s let-
ter of March 13 states that he was writing at 9:30 a.m. when
he was in his office with Drossner; that he had been waiting
to hear from Katz; and because he had not heard from Katz,
he had informed his client that the meeting was canceled.
Assuming that the arrangements had been made as Martin’s
letter implied, Respondent offers no excuse for Martin’s not
calling Katz, when Drossner was available, rather than dis-
missing Drossner and writing Katz to say that the parties
would not be meeting at all that day. In short, Martin seized
on a misunderstanding, if he did not create it, to avoid meet-
ing with the Union.
In his letter of March 23, Martin stated Respondent would
not meet before ‘‘the latter part of April’’ and told Katz that
he should request three alternatives for that period. Katz did
not respond until May 4 when he proposed meeting on May
23 or 30 or June 1. Assuming that Respondent would have
met in late April, of the 5-month delay between the third and
fourth bargaining sessions, only the delay between March 13
and ‘‘the latter part of April,’’ or about 1-1/2 months, is at-
tributable to Respondent’s or counsel’s ‘‘busy schedules.’’
The meeting of June 1 lasted for 1 hour; then there was
a 2-month interval between that meeting and the fifth bar-
gaining session on August 31.
The l-hour discussion on June 1 had two topics: Respond-
ent’s failure to furnish information that had previously been
requested and another meeting date. The Union asked to
meet again within 2 weeks; Martin replied that Respondent
could not meet before June 19, if then. Martin further prom-
ised to get back to the Union on when the next meeting date
would be; he did not, until June 22 when he proposed to
meet on either July 6 or 10. However, in a second letter of
June 22, Martin states that he had received an unfair labor
practice charge which complained of Respondent’s refusal to
meet and that that charge should be allowed to run its
course. Implicitly, therefore, Martin withdrew his offer to
meet on July 6 or 10. On July 14, Martin did offer to meet
on July 19 or 31. Katz was not available on either of those
dates, but Katz suggested others, including July 14. Martin
wrote back holding out the possibility of meeting on July 14;
then he followed with another letter stating that Drossner was
too busy to meet on that date. Martin offered August 31
which, out of apparent resignation, the Union accepted.
Assuming that Respondent would have met on July 19,
had Katz selected that alternative, there was nevertheless an
approximately 1-1/2-month delay between the fourth and
fifth bargaining sessions, from June 1 until July 19, that was
attributable solely to the ‘‘busy schedules’’ of Martin and
Drossner. Then Martin seized on the inability of Katz to
meet on July 19 to delay the next bargaining session until
August 31. I therefore find that all the 3-month delay be-
tween the fourth and fifth bargaining sessions was attrib-
utable to Respondent’s relying on the ‘‘busy schedule de-
fense’’ as a basis for not meeting with the Union.
There is no evidence of what preceded it, but by letter of
September 6, Martin proposed half-day meetings on Septem-
ber 21, September 25, or October 4. By letter of September
7, Katz protested that September 21 was too late to wait for
another meeting and asked for a meeting on September 12.
It did him no good. Katz then attempted to accept both Sep-
tember 25 and October 4. Martin replied that ‘‘my client of-
fered alternative dates. Would you like September 25 or Oc-
tober 4.’’ Respondent offers no reason, if it would propose
both dates, it could not have met on both dates. Any residual
notion that Respondent was taking seriously its duty to meet
at reasonable times is disabused at this point.
Then, after Katz agreed to September 25, Martin and
Drossner simply stood the Union up. Instead of meeting,
1037BARCLAY CATERERS
10 See Dane County Dairy, 273 NLRB 1711 (1985), and cases
cited infra.
11 Captain’s Table, 289 NLRB 22, 23 (1988), on which Respond-
ent so heavily relies, involved a ‘‘single unchallenged request to
schedule a meeting on the first date all [the employer’s] negotiators
were available . . . .’’ Here, Respondent refused to meet at any
time that either Martin or Drossner was unavailable.
12 Georgetown Holiday Inn, 235 NLRB 485 (1978), and cases
cited infra.
Martin sent Katz a terse letter stating that Katz’ hand-deliv-
ered letter of September 20, in which Katz had (under pro-
test) accepted September 25, was not ‘‘timely’’ enough. A
more basic exercise of catch-me-if-you-can is difficult to
imagine.
In his letter of September 12, Martin stated that ‘‘I do not
feel that either my client or I owe you an explanation,’’ but,
to the extent he did explain, of the l-month interval between
the fifth and sixth bargaining sessions, at least half of the
time (from the Union’s requested date of September 12 to
the actual meeting date of October 4) was lost because of
Respondent’s ‘‘busy schedule’’ and the refusal of Respond-
ent to make a commitment to meet for more than 1 day at
a time.
There is no evidence that the delay in meeting between
October 4 and November 6, the dates of the sixth and sev-
enth bargaining sessions, was attributable to Respondent. Nor
is there any evidence that the delay in meeting between No-
vember 6, 1989, and January 4, 1990, the dates of the sev-
enth and eighth bargaining sessions, was attributable to Re-
spondent. Nor is there any evidence that the delay in meeting
between January 4 and 18, the dates of the eighth and ninth
bargaining sessions, was attributable to Respondent.
The parties had a meeting scheduled for February 5, Mar-
tin’s trial schedule permitting. Martin was in trial, but did not
inform the Union until afterward. This was another example
of Martin’s ‘‘busy schedule’’ preventing his meeting with the
Union.
For the remainder of February, Drossner’s annual vacation,
and Martin’s personal business of undisputed urgency pre-
vented meeting. There is no evidence of why the parties did
not meet during the first 2 weeks of March.
The final bargaining session, March 14, lasted 1 hour be-
cause of Martin’s law practice. At the end of that meeting,
and in a letter of March 20, Katz pleaded for a schedule of
regular meetings, but Respondent refused, again, for no rea-
son other than the ‘‘busy schedules’’ of Martin and Drossner.
Katz’ final plea for more meetings was met with a response
by Martin that
the entire business is administered by Mr. Drossner. He
has met with you as often and, on each occasion, as
long as the proper and efficient management of his
business will permit. On some occasions, my schedule
conflicts with the dates and times when Mr. Drossner
is available. We do the best we can to be available for
bargaining at ‘‘reasonable’’ times.
Martin concluded:
I am sorry you and Local 274 chose to proceed in
this manner. Perhaps it would be best to obtain a ruling
from the NLRB relative to our good faith in the bar-
gaining process.
Therefore, Respondent’s last word was that it would not
meet more often with the Union because of Martin’s and
Drossner’s ‘‘busy schedules,’’ and because of the unfair
labor practice charges that had been filled, another impermis-
sible reason for refusing to meet at reasonable times.10
In summary, between December 21, 1988, and October 4,
1989, a 9-month period, the parties met four times for a total
of 8 hours, maximum. Respondent caused delays between
those sessions that totaled 5 months. There is no evidence
that Respondent caused the delays between October 4, 1989,
and February 4, 1990; however, a meeting tentatively sched-
uled for that date was canceled, without notice to the Union,
because of Martin’s busy law practice. The further delay in
meeting between February 4 and the final meeting on March
14, 1990, was further attributable to counsel’s busy law prac-
tice (and the personal business of counsel and Drossner’s va-
cation). After the final meeting, despite repeated pleas for
meetings by Katz, Martin refused, citing, again, the ‘‘one-
man’’ nature of Respondent’s operations, and further pre-
empted any further meetings, citing the unfair labor practice
charges filed here.
The cases are many that hold that even more frequent
schedulings of negotiations have constituted unlawful delay.
The violation is especially clear here where much of the little
time that Respondent allowed for bargaining was spent at-
tempting to get Respondent to comply with its statutory duty
to furnish relevant information and its statutory duty to meet
more often. Moreover, Respondent’s refusal to schedule
more than one meeting at a time is further evidence of bad
faith. Finally, Respondent’s using the charges as a basis for
refusal of further meetings is an outright refusal to bargain
which, itself, constitutes a violation of the Act.
It is therefore necessary to conclude, as I do, that from
December 21, 1988, to the present, Respondent has failed to
meet at reasonable times for the purposes of collective-bar-
gaining with the Union, and has thereby violated, and is vio-
lating, Section 8(a)(5) of the Act.11
3. Delay in furnishing information
Names and addresses of employees, like wage data, are
presumptively relevant to the Union’s role as collective-bar-
gaining representative during contract negotiations,12 and Re-
spondent does not deny relevance here. Respondent argues
only that all requested information was ultimately furnished
and, therefore, no violation can be found.
Respondent did not satisfy its statutory bargaining obliga-
tion by providing relevant information whenever it got
around to it. Respondent had a duty to furnish the requested
information ‘‘without undue delay.’’ Fitzgerald Mills Corp.,
133 NLRB 877, 879 (1961), enfd. 313 F.2d 260 (2d Cir.
1963). Where no reason is given, a delay as short as 20 days
has been held to be a violation of Section 8(a)(5). Butcher
Boy Refrigerator Door Co., 127 NLRB 1360 (1960). In this
case, the only reason Respondent ever gave for its refusals
to furnish information was false: that it did not possess ad-
dresses of employees. As Drossner testified, the Respondent
‘‘eventually’’ had its accountant copy the addresses from the
employees’ W-4 forms, but only after months of delay.
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Respondent’s submission of some numbers without names on
February 27, 1989, was meaningless.
The Union requested that the Respondent provide it with
names, job classifications, dates worked, and pay rates as
early as December 21, 1988. Beginning June 1, 1989, the
Union requested the addresses of the unit employees. It re-
peated the requests several times, but not until August 31,
1989, did Respondent supply the Union with the names of
the employees; on October 4, 1989, Respondent provided
dates worked and wages, but not specific job classifications,
which it never supplied.13 No names with addresses were
supplied until February 7, 1990. All of that time, Respondent
was contending that certain employees, who worked less than
certain numbers of jobs, would be out of the unit, or at least
have their benefits reduced. The information requested is al-
ways relevant, but, in view of Respondent’s bargaining posi-
tion, it was especially so in this case.
Accordingly, I conclude that by its delays and refusals to
furnish to the Union the names, addresses, dates worked, and
pay rates of unit employees, Respondent violated Section
8(a)(5) of the Act.
An additional informational issue remains. Respondent de-
layed from March 14 until December 17, 1990, to furnish to
the Union copies of its Blue Cross health plan. Respondent
stated to the Union, and it argues on brief, that the Union
could have gotten the booklets from Blue Cross. The lawful
answer to a request for information is never ‘‘look else-
where.’’ Respondent had the booklets; it could have made
copies, or it could have called Blue Cross and had others
sent to it, or to the Union. It was not on the Union to accept
Respondent’s representation that it subscribed to one plan,
and for the Union to go and get a copy of a booklet for that
named plan, then attempt to bargain on the assumption that
it had gotten the right booklet from a third party, Blue Cross.
The Union requested a copy of the plan that Respondent was
providing for the commissary employees, and Respondent
had a duty to furnish it. Milgo Industrial, 229 NLRB 25
(1977), enf. denied 567 F.2d 540 (2d Cir. 1977).
Accordingly, I conclude that by its delay in furnishing to
the Union the requested booklets describing current health
and welfare benefits, Respondent violated Section 8(a)(5) of
the Act.
4. Withdrawal from a tentative agreement
I agree with the General Counsel that Respondent agreed
at the January 4, 1990 bargaining session that part-time em-
ployees would be covered by welfare and pension plans after
working 35 jobs, then, by its written submission of January
17, and by statements at the March 14 bargaining session,
Respondent withdrew from that agreement.
I do not agree, however, that this conduct constituted an
independent violation of Section 8(a)(5). There is no author-
ity for the proposition that a party is bound, through the
course of bargaining, to all tentative agreements.
The General Counsel cites two cases as authority. In
Natico, Inc., 302 NLRB 668 (1991), the agreement in ques-
tion was not a tentative agreement on one term of a
multiterm contract that was being negotiated, as here. In
Natico, the employer reached an agreement to implement, for
a period of 60 days, an incentive plan if the bargaining unit
employees agreed by ratification vote. The agreement in
question was that, if the employees approved a 60-day trial
period for the incentive plan, the trial period results were to
be the basis for the parties’ future contract negotiations.
Without any valid basis, the Respondent reneged and refused
to participate in arranging the referendum by employees, as
it had agreed. The Board found a violation because the em-
ployer’s tactic subverted the entire bargaining process. Simi-
larly, in Arrow Sash & Door Co., 281 NLRB 1108 (1986),
the other case cited by the General Counsel on this issue, the
employer reneged on a series of tentative agreements, with-
out giving any valid reason. The Board found a violation be-
cause the employer’s pattern of reneging constituted a tactic
to stultify bargaining altogether. Here, there was only one act
of reneging on a tentative agreement; not a pattern of such
conduct. Moreover, Respondent did give a reason—it did not
wish to pay such benefits to part-time employees, according
to Katz’ testimony. Therefore, this case is similar to one that
the Board distinguished in Arrow: Merrell M. Williams, 279
NLRB 82 (1986). Merrell M. Williams involved, as here, a
withdrawal from a single tentative agreement. In Merrell M.
Williams, the employer gave only the reason of economics,
the same reason that was given here. The Board found no
violation, as it would find none here.
Accordingly, I find that the General Counsel has failed to
prove this alleged violation.
CONCLUSIONS OF LAW
1. The Respondent, Barclay Caterers, Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Hotel Employees & Restaurant Employees Local 274,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The following unit of Respondent’s employees, which
unit is set forth in the parties’ last expired collective-bargain-
ing agreement, effective by its terms for the period January
15, 1983, through January 14, 1986, is appropriate for bar-
gaining under Section 9(b) of the Act:
The Employer’s cooks, kitchen employees, bartenders,
waiters, waitresses, busboys, captains, and head waiters
working in the Employer’s establishment, or on a job
hereafter operated or being serviced by the Employer or
in any other establishment where the Employer may
cater, in all matters relating to collective-bargaining
such as employment of employees, wages hours of
work, working conditions and adjustment of grievances.
4. At all times relevant to this case, the Union has been,
and is now, the exclusive collective-bargaining representative
of the employees in the unit referred to in paragraph 3,
above, within the meaning of Section 9(a) of the Act.
5. Respondent has violated Section 8(a)(5) and (1) of the
Act by:
(a) Refusing, on and after December 21, 1988, to furnish
to the Union, without undue delay, requested information
that was relevant and necessary for the purposes of collective
bargaining.
(b) Refusing, on and after March 13, 1989, to meet and
negotiate with the Union as the collective-bargaining rep-
resentative of the employees in the unit described above at
reasonable times.
1039BARCLAY CATERERS
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
15 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The General Counsel has not established by a prepon-
derance of the evidence that, as alleged, Respondent has oth-
erwise violated the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, Barclay Caterers, Inc., Philadelphia,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to furnish to Hotel Employees & Restaurant
Employees Local 274, AFL–CIO, without undue delay, re-
quested information that is relevant and necessary for the
purposes of collective bargaining.
(b) Refusing to meet and negotiate with the Union as the
collective-bargaining representative of the employees in the
unit described above at reasonable times following requests
by the Union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, furnish to the Union, without undue delay,
information that is relevant to and necessary for the purpose
of collective bargaining.
(b) On request, meet and negotiate with the Union as the
collective-bargaining representative of the employees in the
unit described above at reasonable times.
(c) Post at its Philadelphia, Pennsylvania facility copies of
the attached notice marked ‘‘Appendix.’’15 Copies of the no-
tice, on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to furnish to Hotel Employees &
Restaurant Employees Local 274, AFL–CIO, without undue
delay, requested information that is relevant and necessary
for the purpose of collective bargaining.
WE WILL NOT refuse to meet and negotiate with Hotel
Employees & Employees RestaurantLocal 274, AFL–CIO, as
the collective-bargaining representative of the employees in
the following described unit at reasonable times following re-
quests by the Union:
The Employer’s cooks, kitchen employees, bartenders,
waiters, waitresses, busboys, captains, and head waiters
working in the Employer’s establishment, or on a job
hereafter operated or being serviced by the Employer or
in any other establishment where the Employer may
cater, in all matters relating to collective-bargaining
such as employment of employees, wages hours of
work, working conditions and adjustment of grievances.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request, furnish to the Union, without undue
delay, information that is relevant to and necessary for the
purpose of collective bargaining.
We will, on request, meet and negotiate with the Union as
the collective-bargaining representative of the employees in
the unit described above at reasonable times.
BARCLAY CATERERS, INC.