Bartenders, Local 2

National Labor Relations Board - Board Decisions

Feb 16, 1979

240 N.L.R.B. 757 (N.L.R.B. 1979)

BARTENDERS, LOCAL 757
Hotel and Restaurant Employees and Bartenders
Union, Local 2, Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO and
Zim's Restaurants, Inc. Cases 20-CB-4476, 20--
CB-4544. and 20-CB4550
February 16, 1979
DECISION AND ORDER
By MFMBERS JENKINS. Mi'RPIlY. ANI) TRtI ESDAI.
On June 2, 1978, Administrative Law Judge James
T. Barker issued the attached Decision in this pro-
ceeding. Thereafter, the Charging Party ' and the
General Counsel filed exceptions and a supporting
brief, and Respondent 2 filed cross-exceptions and an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings) and
conclusions of the Administrative Law Judge onl to
the extent consistent herewith.
1. The Administrative Law Judge dismissed the
complaint allegation that Respondent violated Sec-
tion 8(b)(3) of the Act by refusing to bargain with
Zim's, finding that Respondent did not acquiesce in
or consent to Zim's withdrawal from the Golden
Gate Restaurant Association 4 (a voluntary associa-
tion of restaurants with which Respondent had a col-
lective-bargaining relationship). We find merit in the
contentions of the General Counsel and the Charg-
ing Party that the facts herein support a finding that
Respondent, through its conduct subsequent to Zim's
requested withdrawal from GGRA. acquiesced in or
consented to Zim's withdrawal and therefore vio-
lated Section 8(b)(3) by refusing thereafter to bargain
independently with Zim's.5
Herein called Zim's.
2 Herein also called Local 2 or the ULnion.
IThe Respondent has excepted to certain credibilits findings made bh the
Administrative Law Judge. It is the Bard', estl:ablished polico not to ioer-
rule an administrative law judge's resolutions with respect to credihtil'i
unless the clear preponderance of all f the relevant evidence consince us
that the resolutions are incorrect Standard Dri H all Prodxs. Ins 91
NLRB 544 1950}. enfd 188 F.2d 362 (3d Cir. 1951) We hase carefulls
examined the record and find no basis for reversing his findings
4 Herein called GGRA
On October 5. 1978. Zim's filed a motion to reopen the record for the
purpose of proffering newly discovered eidence. arising from events which
transpired after the close of the instant hearing and purportedls showingl
that Respondent consented to Zm'\ withdrawal from (;(;R \. hereafter.
on October 23. 1978. Respondent filed a response in hich t opposed said
motion. We find Zim's motion lacking in merit. AccordingIs. it ps herebh
240 NLRB No. 80
The facts, as more fully set forth by the Adminis-
trative Law Judge, establish that for many years
Zim's has authorized GGRA to engage in multiem-
ployer collective bargaining with Respondent: that
Zim's has been a party to a series of collective-bar-
gaining agreements negotiated by GGRA, the most
recent of which was effective through August 31,
1977: that. since 1963, GGRA has been a member of
an industrywide bargaining unit of employer associa-
tions 6 for the purpose of bargaining with respect to
the terms of trust agreements covering health and
welfare benefits and pension benefits for Bay Area
employees represented by Respondent: that the
scheduled expiration of the most recent trust agree-
ment was October 31, 1976: and that Zim's partici-
pated in the industrywide benefit plans.
The pertinent facts also show that bargaining had
already begun for a new GGRA-Local 2 agreement
when Zim's sought to withdraw from GGRA on
April 18, 1977. On that date Zim's dispatched a letter
to GGRA essentially stating that because its interests
differed from those of other GGRA members, it was
requesting immediate withdrawal from GGRA. A
copy of this letter was sent to Joseph Belardi, in his
capacity as Respondent's president, as was an ac-
companying letter to the Union suggesting that Re-
spondent and Zim's begin discussions "with the ob-
ject of negotiating a new collective bargaining
agreement which would address itself more specifi-
cally to Zim's restaurant." This latter letter also stat-
ed that Zim's intended "not to be bound by any re-
newals, changes, or extensions to the Health and
Welfare and Pension provisions of the current Agree-
ment beyond the expiration date lof August 31,
19771, but instead to make this matter a subject for
anticipated negotiations on a new bargaining agree-
ment." 7
In mid-May 1977. Vito Saccheri. a business agent
for Respondent, while discussing grievance matters
with Fredrick Cohen, an area supervisor for Zim's,
stated that since Zim's had become an "indepen-
denied IThe (eneral Counsel also filed a motion urging the Board to issue
an Order lo Show Cause hs the 8(hb(3) allegation of the complaint should
not he dsmissed. because the parties. subsequent to the issuance of the
Decision of the dminitratise aw Judge, reached accord on the terms of
a collectise-bargaining agreement The eneral ('ounsel's motion also is
denied as lacking in meril.
ferein called industrwulde bargaining.
Also. on April 18. 1977. Keith Vlx Zim's ice president of operations.
notified Belardi. in his capacity as chairman of the pension trust. that in
light of Zim's withdrawal from GGRA. he (Vix) was resigning immediately
;is a trustee of the health and welfare fund In a similar manner. Steve
Zlmmernlan. Zln's executive ice president. resigned from his position on
the board of directors of GGRA At an April 1977 trustees' meeting. Belardl
stated that both he and his attorney were of the view that Zim's withdrawal
from (GRA as untimels and that Zm's would consequentlI be bound bs
ian agreement between (GRA and Respondent. Belardi reiterated this po-
sition to (GGRA's general manager. (;u Leonard. n Max 1977 and at
trustece ieetings In Max. June. and September of that ear.
BARTENDERS LOCAL 2
_, _ _ . _
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent," he and Flo Douglas, director of organization
for Respondent. would be meeting with Vix for the
purpose of negotiating a contract. About the same
time, Douglas spoke to Vix over the telephone, dis-
cussed grievance matters, referred to Zim's April 18
letter, and agreed to meet on May 26, 1977. The
meeting was later postponed to June 3, 1977. During
the last few days of May, Saccheri called Cohen at
Douglas' request and expressed concern over certain
of Zim's personnel actions but agreed to defer discus-
sion on these matters for a few days because he was
going to be seeing Vix "regarding negotiations" in
any event.
At the June 3 meeting Vix served as Zim's princi-
pal spokesman, and Douglas and Saccheri repre-
sented Respondent. Douglas asked why Zim's had
withdrawn from GGRA. Vix explained that for vari-
ous reasons, including the fact that the GGRA con-
tract was not sufficiently tailored to Zim's needs,
Zim's wanted to sit down and negotiate a separate
collective-bargaining agreement. As Vix proffered
this explanation. Douglas nodded her head in appar-
ent agreement. When, in the context of these state-
ments, Vix asked Douglas if she had any contract
proposals in mind, Douglas submitted a copy of the
agreement between Respondent and independent
restaurant operators who were not members of or
represented by any association and stated that she
would like Zim's to sign it. Vix rejected the indepen-
dent agreement, indicating that it was essentially the
same as Respondent's contract with GGRA and that
Zim's wanted a contract geared to its needs, and then
asked what Respondent had in mind for Zim's.
Douglas responded that Respondent would draft and
submit proposals. Vix indicated agreement with this
procedure, adding that the parties would exchange
proposals at future meetings. As the meeting pro-
gressed, Douglas stated that she and Saccheri would
be negotiating for Respondent but cautioned that they
could not enter into an agreement binding Respondent
and that any tentative agreement achieved between
them would have to be submitted for approval to
Belardi and the executive committee.8 With respect to
health and welfare contributions, Vix indicated that
Zim's would be bound by the GGRA agreement only
through its expiration date of August 3 I, 1977, and that
any ruling by the arbitrator to whom GGRA and
Respondent had submitted their dispute, whether
GGRA was obligated to reopen negotiation as to cer-
tain benefit plans,9 would bind Zim's only through that
Vix indicated that he similars would have to get approval from Zim s
executive committee before any agreement became effective.
4 During the course of the negotiations between (GGRA and Respondent.
those two parties agreed to arbitrate the question of whether (i(RA was
obligated to reopen negotiations on health. welfare, and pension benefits
date. During the meeting, which lasted approximately
90 minutes, neither Douglas nor Saccheri stated that
Zim's would be bound by the results of the ongoing
GGRA-Local 2 negotiations. 1°
Belardi did not learn of the June 3 meeting until
after its conclusion. However, at a June 13, 1977,
negotiating session between GGRA and Respon-
dent, Belardi stated that Respondent had agreed to
meet with Zim's separately, that he had so informed
Vix, and that anything separately negotiated would
be submitted to GGRA for approval. However, at
the same time Belardi maintained to GGRA that
Zim's was going to be bound by any future agree-
ment between GGRA and Local 2.
On June 6, 1977, Saccheri hand-delivered a letter
from Belardi to Zimmerman which stated:
As far as we are concerned, since you are no lon-
ger a member of the Golden Gate Restaurant Asso-
ciation, Health and Welfare and Pension contri-
butions at the new rate of $76.17 is to be paid
immediately, retroactive to the March payment,
since we won the Arbitration. [Emphasis sup-
plied.]
Saccheri, as requested by Belardi, asked Zimmerman
to acknowledge by his signature that Zim's was
bound by the new health and welfare rate. Zimmer-
man stated that in his view Zim's was bound by the
GGRA contract only until August 31, 1977. Saccheri
answered that Douglas would be contacting Vix re-
garding a date for the next negotiating session. Zim's
thereafter responded through letter from its counsel,
Roger Mulholland, stating, as before, that it would
not be bound to renewals, changes, or extensions of
the benefit program beyond the August 31 expiration
date, and "again, we anticipate that our upcoming
negotiations will include this matter as a subject for
bargaining."
As promised by Saccheri, Douglas called Vix and
scheduled the July 5, 1977, meeting at which Vix and
Mulholland represented Zim's and Belardi, Douglas,
and Agnes Barnhill represented Respondent. After
the parties discussed the arbitrator's award and Zim's
obligations pursuant thereto, they turned to the ne-
gotiations between Respondent and GGRA. In this
context, Vix asked Belardi to describe the type of
contract Respondent was seeking from Zim's. When
Belardi presented the proposals then being negotiat-
ed between Respondent and GGRA, Vix asserted
that Zim's wanted a "tailored contract." Belardi re-
On May 27. 1977. Arbitrator Armon Barsamian issued an award providing,
in pertinent part,. that "the Union has the contractual right to reopen the
contract with the Association effective November I. 1976. The issues that
are Io be discussed are health and welfare and pension.
"'I he last 5 minutes of the meeting were devoted to grievance matters.
BARTENDERS, LOCAL 759
sponded that first the matter of a basic agreement
would have to be worked out, adding that there
would be only one contract and no "sweetheart
deals." The parties then commenced a 45-minute
item-by-item scrutiny of Respondent's proposals to
GGRA. in the process deleting terms that did not
apply to Zim's. When that was completed Belardi
asked if Zim's had any proposals to advance. Vix
responded that Zim's proposals had not been com-
pleted but that they would be submitted within a rea-
sonable period of time. Belardi requested that they
be available within a week. When Vix claimed that
that was insufficient time, the parties agreed upon 2
weeks and set July 20, 1977, for the next meeting.''
On July 15, 1977, Respondent's counsel dispatched
a letter to Zim's stating that inasmuch as "Zim's did
not withdraw from a multiemployer bargaining unit.
i.e., the Golden Gate Restaurant Association, prior
to the commencement of negotiations for the indus-
try contract," Local 2 considered Zim's bound by
any subsequent collective-bargaining agreement
reached between itself and GGRA. After receipt of
this letter on July 18, 1977, Zim's, whose representa-
tives had been drafting proposals, sent Respondent a
letter which stated, in effect, that Zim's had effectu-
ated a timely withdrawal from association bargaining
and insisted that negotiations for a "separate collec-
tive bargaining agreement" continue. The July 20
meeting, at which Zim's contract proposal was to be
presented, did not take place as scheduled.
An employer may effectively withdraw from mul-
tiemployer bargaining without the union's consent if.
prior to commencement of bargaining, its conduct
evidences unconditional and unequivocal notice of
its intent to abandon the multiemployer unit.' 2 How-
ever, once negotiations with the multiemployer group
have begun, withdrawal will not be considered "time-
ly," and the employer will not be relieved from the
obligations of any contract subsequently negotiated
by the multiemployer association and the union, ab-
sent unusual circumstances 3 or consent by the
union.1 4 In determining whether the union has con-
sented to an employer's untimely withdrawal from
multiemployer bargaining, the Board will examine
the totality of the union's conduct. If such conduct
involves a course of affirmative action "clearly an-
tithetical" to the union's claim that the employer has
H Sometime during he Jul 5 2-hour meeting. Belardi directed Brnhill
to mail the benefit proposal to ViO. and thereafter. in Jul 7 Vix recced
one-page document captioned "Health and Welfare and Pension Propos-
als," with "Zim's" handwritten at the top
I The ( arvel ( onlani lnd( C and n Pllhn t I ak,i ( l.i 226
NL.RB 11 ( 1976): Retail A.v,4 ateL . sll 1, 120 NIlRB 388 (1958).
I E.g.. Spun-Jec ('orp and Ihe Jali% ttlec ( or/ . 171 NIRB 557
(1968).
14 I ( Re/rlXeratn Sneril,, In . 2(X) NlRB h87 (1972,.
not withdrawn from multiemplo}Ner bargaining, the
Board will imply union consent to. or acquiescence
in, the employer's attempted withdrawal.'
We find that the Administrative Law Judge erro-
neously concluded that Respondent had not consent-
ed to Zim's withdrawal.'" In substance, the Adminis-
trative Law Judge found that while a literal
construction of the facts might lead to the finding
that Respondent engaged in single-employer bar-
gaining with Zim's. such a finding was not supported
by the record as a whole. For the reasons set forth
below, we disagree with that conclusion.
During the June 3 meeting, the actions of Douglas
and Saccheri on behalf of Respondent were such as
to show that Respondent was treating Zim's as an
independent. Thus, as Vix explained Zim's reasons
for wanting a contract tailored to Zim's particular
needs, both Douglas and Saccheri listened without
comment, and Douglas nodded her head with appar-
ent approval. When Vix asked whether Respondent
had any proposals in mind, Douglas. rather than
claiming that Zim's would be bound by the results of
the GGRA-Local 2 negotiations, submitted a copy of
the contract between Local 2 and independent res-
taurant operators who were not members of or repre-
sented hby any association. Further, when Vix reject-
ed this contract as essentially the same as the existing
Local 2-GGRA agreement, Douglas stated that Lo-
cal 2 "would draft proposals." Consequently, we find
that the actions of Douglas and Saccheri at this meet-
ing manifested Respondent's consent to. or acquies-
cence in. Zim's withdrawal from multiemployer bar-
gaining.
In so finding, we reject the Administrative Law
Judge's finding that the "collective-bargaining dis-
cussions in which Douglas and Saccheri were en-
gaged . . . ma, not be realisticallh viewed as possess-
ing authoritative gloss ivis-a-vis Local 2." There is no
basis for such a finding. Douglas, as director of orga-
nization, and Saccheri, as a business agent, were, as
conceded by Respondent, agents of Respondent. At
the very least, therefore, they were clothed with the
apparent authority to act on behalf of Respondent:
and Zim's was entitled to rely on their authority un-
less advised by Respondent to the contrary. We so
find.
Thus, there was nothing which either Douglas or
Saccheri said or did in discussions with representa-
tives of Zim's prior to the June 3 meeting which
would indicate that they, did not possess the authori-
See lhe John J ( rhrit Press. Inc. 163 NIRB 154. 158 (I h7)
Inasmuch as the (eneral (nsel does not contend that Zim's ilth-
draual from ((RA was timel., or Ihat unusual circumstainces ustified the
Inaling of said Aithdraall. and ecause ve find that in an. eent Respon-
dent consented to Znl's ithdra,al. e do not pass upon the Administra-
[ie Ila i Judge', findings n these regards
BAR.TENDERS. LOCAL 2
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ty to speak on Respondent's behalf at the meeting in
question. Rather, it was Saccheri and Douglas who,
in response to Zim's letter withdrawing from mul-
tiemployer bargaining, had conversations with vari-
ous Zim's representatives during which they ac-
knowledged receipt of Zim's withdrawal request,
indicated Respondent's willingness to meet sepa-
rately with Zim's, and arranged a meeting date. And
it was Douglas and Saccheri who appeared as
Respondent's representatives at the June 3 meeting.
Certainly, their conduct at the meeting itself is
consistent with the finding that they had the authori-
ty to act on Respondent's behalf in the negotiations
that there occurred. The sole reservation which they
placed upon that authority was that any tentative
agreement reached would require the approval of Be-
lardi and the executive committee. Such a ratification
requirement, however, did not render Douglas (or
Saccheri) devoid of authority to speak on behalf of
Respondent or to effectively engage in the negotia-
tions prerequisite to a tentative agreement. Nor did it
put Zim's on notice that Douglas and Saccheri
lacked such authority. It simply limited the extent of
their authority by advising their bargaining counter-
parts for Zim's that any terms agreed upon would be
subject to approval by a higher authority.'7
Moreover. Respondent's subsequent conduct did
not serve to negate the apparent authority of Doug-
las and Saccheri to act on its behalf or to repudiate
the course of negotiations with Zim's .which took
place on June 3 through those two agents.' To the
contrary, while the June 3 meeting with Zim's ap-
pears to have been held without Belardi's clearance,
authorization, or instruction, not long thereafter Be-
lardi announced at a negotiation session between Re-
spondent and GGRA that Local 2 had talked to Vix
and had agreed to meet with Zim's independently to
discuss matters of particular concern to Zim's. In so
doing, we find that Belardi indicated approval of the
action taken by Douglas and Saccheri.' That Belardi
also told GGRA at the same and subsequent negoti-
ations sessions that Zim's would be bound by any
| In this connection, the Board has long held that an agent may lawfully
be invested with limited authority to negotiate a collective-bargaining agree-
ment which is suhject to ratification. provided this limitation is disclosed
as was the case here before an agreement is reached, E.g.. Aport Seallaplx
(oortlion 194 NI.RB 540. 544 (1971).
As set forth in Restatement (Second). Agent,. 27. comment a (1958):
For apparent authority there is the basic requirement that the principal
be responsible for the information which comes to the mind of the third
person. similar to the requirement for the creation of authority that the
principal be responsible for the information which comes to the agent.
Thus. either the principal must intend to cause the third person to
believe that the agent is authonzed to act for him, or he hould realize
that his conduct is likel to creute such belief [Emphasis supplied.]
iC (ontrary to the Administrative l.aw Judge. we find no "hypertechnical
application" of Agency principles necessary to reach this result.
agreement reached between GGRA and Local 2 is
an understandable negotiating posture for Respon-
dent to take vis-a-vis GGRA and does not negate the
finding that Respondent dealt independently with
Zim's.
The fact is that until mid-July, Respondent did not
explicitly inform Zim's that Respondent considered
it bound by any agreement subsequently reached by
GGRA and Local 2. By then it had met separately
with Zim's on two occasions and had engaged in
other conduct which, as described below, evinced
willingness on its part to deal with Zim's outside the
multiemployer context. For example, Belardi's June
6. 1977. letter regarding Zim's obligations pursuant
to the arbitrator's award was addressed exclusively to
Zim's rather than to all GGRA members (who had
jointly challenged reopening of the benefit package),
failed to challenge Zim's status vis-a-vis the associa-
tion, and invited a response from Zim's as an inde-
pendent employer. Further, when in response Zim's
asserted it was bound to the revised benefit package
only through its original expiration date, Respondent
offered no protest, but instead indicated it would
contact Zim's regarding a date for the next negotiat-
ing session.
Nor did Respondent protest Zim's counsel's sug-
gestion that Zim's benefit fund obligations be "a sub-
ject for bargaining . . . at our upcoming negotia-
tions." To the contrary, the first subject discussed at
the July 5 session, which was scheduled at
Respondent's initiation, was Zim's obligations pur-
suant to the arbitrator's award. Also at this meeting,
the parties discussed the negotiations between Re-
spondent and GGRA, and Belardi offered the pro-
posals on the table in those negotiations as the type
of contract Local 2 was seeking with Zim's. When
Vix reiterated Zim's desire for a tailored contract,
Belardi stated that first a basic agreement would
have to be worked out. The parties then proceeded
through a 45-minute item-by-item scrutiny of the
proposals, deleting those items not pertinent to Zim's
operations. Upon completion of this process, Belardi
requested proposals from Zim's and agreed to give
Zim's 2 weeks for their preparation. At no time dur-
ing this meeting did Respondent state that it consid-
ered Zim's bound by any future agreement between
Respondent and GGRA. 20 In fact, Respondent's
willingness to independently discuss and modify the
proposals under consideration between itself and
GGRA indicates its consent to bargain with Zim's as
a single employer. And Zim's obviously construed
this to be the case, because prior to receipt of
" While Belardi at one point during the meeting indicated there would be
only one contract for the industry and no sweetheart deals, it is evident
from his conduct as a whole that Respondent would accept some degree of
tailoring for Zim's.
BARTENDERS. LOCAL 761
Respondent's July 15 letter in which Respondent
first communicated to Zim's its rejection of Zim's
withdrawal from GGRA. Zim's representatives were
engaged in preparing the counterproposals earlier
sought by Belardi.2'
Based on the foregoing, we find that Respondent's
total course of conduct following Zim's submitted
withdrawal from multiemployer bargaining, includ-
ing the facts that it willingly participated in separate
negotiations with Zim's to consider terms and condi-
tions of employment particularly applicable to Zim's
operations, requested counterproposals from Zim's,
and at no time during these negotiations insisted that
Zim's be bound by the GGRA-Local 2 agreement,
establishes that Respondent consented to Zim's with-
drawal from GGRA and that it acquiesced in Zim's
requests to bargain with that employer apart from
the multiemployer unit.22 Accordingly, we further
find that by insisting that Zim's execute and abide by
the terms of the GGRA-Local 2 agreement, Respon-
dent violated Section 8(b)(3) of the Act.
2. During October 1977 two of Respondent's
agents, including Roger Cardenas, a vice president,
spoke separately to Channing May, Kevin Grady,
and Herman Probusco, employees of Zim's, telling
them, inter alia, that they had to join the Union in
order to continue to work at Zim's. Also in October,
Cardenas informed Vix that new employees had to
join the Union in order to continue to work for
Zim's. Vix responded that the union-security clause
had expired in August and that membership in the
Union was no longer required.
The Administrative Law Judge found that the
comments made by the Union's agents to employees
May, Grady, and Probrusco were to the effect that
unless they abided by the mandate of the union-se-
curity clause in the GGRA contract (effective Au-
gust 31, 1977), they would lose their employment at
Zim's. He found no "impermissible threats" in these
statements, however-and, further, no unlawful at-
tempt by the Union to cause Zim's to discharge its
2 We find no support for and do not adopt the Adminisira.tie la;w
Judge's finding that the preparation of said counterproposals wa "gratl-
tous on the part of Zim's," particularly in sviesw of the fact that Belardl w as
the one who requested such proposals and pressed for their rapid prepara-
tion. Further, the meeting closed with the parties agreeing to mleet gaiIn to
consider Zim's counterproposals as soon as thes were reads
See IC. Refrigeration Service. In . upra. Joseph ( ( ollot & ( , t1 .
184 NLRB 940 (1970). The instant case is distinguishable from Bloom &
Mever Constructrion Companv, 230 NLRB 370 (1977). relied on b the Ad-
ministrative aw Judge. In that case the Board found that the nion did nlot
consent to the employer's withdrawal, hbut rather attempted to regain the
employer in the association by informing the employer it wvould work uith
the employer as it had in the past. that the employer v.would nol be advan-
taged by a separate contract. and that it would not give the employer teltlls
which would not also appl Ito the associalion. Further, there the unin did
not in fact present proposals. agree to negotate. or agree toi meet again * llh
the employer.
employees in Cardenas' statement to Vix concerning
the union obligations of new employees under that
agreement--because he concluded that the GGRA
contract was binding on Zim's and its employees.
We agree with the Administrative Law Judge's
finding that the three employees in question were
threatened with the loss of their jobs if they did not
join the Union. However. because we find, contrary
to his finding, that Respondent consented to Zim's
withdrawal from GGRA and therefore was not
hound by the newly negotiated contract between
GGRA and Respondent, we conclude that there was
no union-security provision in force or effect which
lawfully could have been applied to these employees
when such statements were made. Accordingly, un-
like the Administrative Law Judge, we find that
Respondent's threats of job loss to May, Grady, and
Probusco for not joining the Union were in restraint
and coercion of the exercise of their right under Sec-
tion 7 of the Act to refrain from joining or support-
ing the Union and thus constitute a violation of Sec-
tion 8(b)(1)(A) of the Act.23
Similarly, in view of our finding that Zim's is not
bound by the current GGRA-Local 2 agreement, we
find that Respondent violated Section 8(b)(2) of the
Act when it attempted, through Cardenas' statement
to Vix, to invoke the union-security provision of that
agreement with respect to Zim's new employees.2 4
3. About 12 noon on October 31, 1977, approxi-
mately 30 to 40 individuals commenced picketing
Zim's Powell and Sutter Street restaurant.2 5 The pick-
ets walked in a circle obstructing the entrance to the
restaurant, shouting, "Who's unfair? Zim's is unfair,"
thereby deterring a large group of prospective cus-
tomers from entering the establishment. Later that
afternoon. Cardenas told the restaurant manager,
Phillip Adams, that the pickets would remain until
Zim's signed the GGRA contract. When Adams as-
serted that Zim's was no longer a member of GGRA,
Cardenas replied, "I don't care, Zim's is still going to
sign the contract."
Based on the foregoing, we find that Respondent
picketed Zim's' restaurants in an effort to force Zim's
to sign the newly negotiated collective-bargaining
agreement between GGRA and Local 2 and that
such conduct constitutes unlawful coercion of an em-
ployer in the selection of its representative for the
purposes of collective bargaining. Accordingly, we
find that Respondent violated Section 8(b)(I)(B) of
the Act by this conduct."
4/ ma(aiiatcd ( hcihmnv 1t I r8 ers .4 iri.-a. 4 FL ( 1(). Lcal 990 ( Tro
Iextlei. In t. 174 NI. RB 1 148 (19691 enfd. 430 F:.2d 966 (5th ('ir. 1970)
:4 Cf. R-M Framersr . Irn. 207 N R 36. 43 44 ( 1973).
: Respondent also picketed Zim's restlluralnt at an Ness and Market
Street,.
o l.ioal 2'60 O the I f. Il, Itlrc and 'Veic latlher, International nion.
Continued
BARTENDERS. LOCAL 2 !
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TII RMl.m)Y
Having found that Respondent has engaged in un-
fair labor practices within the meaning of Section
8(b)(3), 8(b)(1)(A), and 8(b)(2), we shall order it to
cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act as set
forth in the Order below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Hotel and Restaurant Employees and Bartenders
Union, Local 2, Hotel and Restaurant Employees
and Bartenders International Union, AFL CIO. San
Francisco, California, its officers, agents, and repre-
sentatives, shall:
I. Cease and desist from:
(a) Threatening employees of Zim's Restaurants,
Inc., with loss of employment if they do not become
members of Respondent.
(b) Attempting to cause Zim's Restaurants, Inc., to
terminate its employees for failure or refusal to join
Respondent in the absence of a collective-bargaining
agreement between the parties containing a valid
union-security provision.
(c) Restraining or coercing employees in the exer-
cise of rights guaranteed by Section 7 of the Act by
threatening managerial agents of Zim's Restaurants,
Inc., in the presence of employees of Zim's Restau-
rants, Inc., with bodily harm or physically assaulting
managerial agents of Zim's in the presence of em-
ployees of Zim's Restaurants, Inc.
(d) Seizing the premises of Zim's Restaurants. Inc.,
by entering said premises with groups of its mem-
bers, representatives, or adherents, uninvited or over
the protest of managerial agents of Zim's Restau-
rants, Inc., and disrupting the business operations of
Zim's, all in the presence of employees of Zim's Res-
taurant, Inc.
(e) Picketing Zim's Restaurants, Inc., with the ob-
ject of forcing said employer to sign the contract ef-
fective August 31, 1977, between Golden Gate Res-
taurant Association and Respondent, thereby
restraining and coercing Zim's Restaurants, Inc., in
the selection of its representative for purposes of col-
lective bargaining.
4A IT. ( 10 (4 s wtiled Plast.ring and l.atlhing ( onlraclort % rs f San )iego). 228
NlRB 1347 (1977).
2 In the event that 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 Natilioinal labor Relations Board" shall read "Posted Pursuant to a
Judgment of the l nited States (court of Appeals Enforcing an Order of the
Nahtional labor Relations Board'
(f) Refusing to bargain in good faith, upon request,
with Zim's Restaurants, Inc., concerning the terms
and conditions of employment of employees in the
following appropriate unit:
All employees employed by Zim's at its San
Francisco, California, facilities; excluding office
clerical employees, guards. and supervisors as
defined in the Act.
(g) In any other manner restraining or coercing
employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the purpose of the Act:
(a) Upon request, bargain collectively with Zim's
Restaurants, Inc., with respect to wages, hours, and
other terms and conditions of employment of em-
ployees in the above-described appropriate unit and,
if agreement is reached, embody the terms in a
signed contract.
(b) Post at its offices and meeting halls, and all
other places where notices to members are custom-
arily posted, copies of the attached notice marked
"Appendix." 27 Copies of said notice, on forms pro-
vided by the Regional Director for Region 20, after
being signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including places where no-
tices to members 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.
(c) Sign and return to said Regional Director suffi-
cient copies of the attached notice marked "Appen-
dix" for posting by Zim's Restaurants, Inc., if willing,
in conspicuous places, including all places where no-
tices to its employees are customarily posted.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE To MEMBERS
POSTiD BY ORDER OF IiE
NAIIONAL LABOR RELArIlONS BOARD
An Agency of the United States Government
WE ILL NO] threaten employees of Zim's
Restaurants, Inc., with loss of employment if
they do not become members of Hotel and Res-
taurant Employees and Bartenders Union, Lo-
cal 2, Hotel and Restaurant Employees and Bar-
tenders International Union, AFL-CIO.
WE WILL NOT attempt to cause Zim's Restau-
rants, Inc., to terminate its employees for failure
BARTENDERS, LOC-AL 763
or refusal to join the above-named Union in the
absence of a collective-bargaining agreement be-
tween the parties containing a valid union-secur-
ity provision.
WE wIL.L Nor, in the presence of employees of
Zim's Restaurants. Inc., threaten managerial
personnel of Zimn's Restaurants, Inc.. with bodi-
ly harm.
Wt Wll . Noi0 in the presence of employees of
Zim's Restaurants, Inc., inflict bodily harm
upon managerial personnel of Zim's Restau-
rants, Inc.
WE. wil . N)t, in the presence of employees of
Zim's Restaurants, Inc.. seize the premises of
any of Zim's Restaurants. Inc., restaurants, and
or disrupt the operations of said restaurant facil-
ities, by entering upon said premises. with
groups of our members, representatives, or ad-
herents, uninvited or over the protest of mana-
gerial personnel of Zim's Restaurants. Inc.
Wi wiii N picket Zim's Restaurants. Inc..
with the object of forcing said employer to sign
the contract effective August 31. 1977. between
Golden Gate Restaurant Association and Ilotel
and Restaurant Employees and Bartenders
Union, Local 2, Hotel and Restaurant Emplo)N-
ees and Bartenders International Union, AFL
CIO, thereby restraining and coercing Zim's
Restaurants, Inc., in the selection of its represen-
tative for the purpose of collective bargaining.
WI WILL NOI refuse to bargain in good faith.
upon request, with Zim's Restaurants. Inc., con-
cerning the terms and conditions of employment
of the employees in the following appropriate
unit:
All employees employed by Zim's at its San
Francisco. California. facilities: excluding of-
fice clerical employees. guards, and supervis-
ors as defined in the Act.
WE Wllt1. NOI in any other manner restrain or
coerce employees in the exercise of rights guar-
anteed them by Section 7 of the National l.abor
Relations Act. as amended.
Wt. wii.i., upon request. bargain collectivel\
with Zim's Restaurants, Inc., with respect to
wages, hours, and other terms and conditions of
employment of employees in the above-de-
scribed appropriate unit and, if an agreement is
reached, embody the terms in a signed contract.
HOTEl. AN[) R SIAt RAN EN1PLo'I.ES \N)
BARTENDERS UNIoN. LO(CAI. 2, lol il .-sN)
RESTAULRNI EPI.()Iit-S AN[) B\RI NI)I RS
IN IRNAION()A,\ UNION. AFL-CIO
DECISION
STATFMENI OF IHFE 4AS[
JAS1:S I BRKIR. Administrative Law Judge: This case
was heard before me on January 17, 18, and 19. 1978. pur-
suant to an order consolidating cases and an amended no-
tice of hearing issued on December 28, 1977, b the Acting
Regional Director of the National Labor Relations Board
for Region 20.1 The consolidated cases are based upon
charges filed on August 2, November 8. and November 15.
respectively. by Zim's Restaurants, Inc.. hereinafter called
Zim's. The consolidated complaints allege conduct on the
part of Hotel and Restaurant Emplosees and Bartenders
Union. l.ocal 2. Hotel and Restaurant Employees and Bar-
tenders International Union, AFL CIO. hereinafter called
Local 2 or the Union, violative of Section 8(b)( )(A), (2),
and (3) of the National Labor Relations Act, as amended,
hereinafter called the Act. The parties were accorded full
opportunitl to examine and cross-examine witnesses, in-
troduce relevant evidence, and present oral argument. The
parties waived oral argument and timel) filed briefs with
me. Upon the entire record in this proceeding, the briefs of
the parties, and my observations of the witnesses.2 I make
the following:
FI,,I)N(S o) FA( I
I TlFE BI SINFSS OF TilE COMPAN)
At all times material herein. Zim's has been a California
corporation engaging in the operation of a chain of retail
restaurants, including 12 restaurants located in San Fran-
cisco, California, where its principal office is located.
During the calendar year 1977. in the course and con-
duct of its business operations, Zim's received gross reve-
nues in excess of $500,000 and purchased and received at
its facilities within the State of California goods and sup-
plies valued in excess of $5,000 which originated outside
the State of California.
I nies o tleri,,e rated. III dates herein refer to the .ilendar e.lar 1)77
I Plrulit to Respondent n motin. I hase taken oficl;lal tnille lf the flct
that on J 26 local 2 filed ch.arge in ( ie 21) ( A 1181 .alleing J.oil-
lion i Set 8(a).5 if the \ct reulting from Zn',' untlinltl aithdravil.
from Ihe minltletnmpiler harFlning uni ii which it au
.
hund and Zin.
reft al thereafiel to hul it.r collecItlc-harg.ling agreeent Aith Iocal 2
I ha.e ilI,{i t.ken offlil.ll notlce f he fact that in Septemher 27 the Reclm-
il Dl)iretil f the Nalional .I ho Relation, Board fr Region 0 linforniled
l.ocal 2 t1ht he a,. reftlu lig to ISle .i clit umpla31t n the haml of the subje I
chare. hlch aclittrl of the Reglional Directour as appealed bh\ Locl 2 oin
(kltoher 7. hihlh appeal. it ppears. sas demed.
I helch? grant the nmioon iof co)unsel for the General Counsel and counsel
for Zinl to strike line 4 IS o11 page 2 and lines 4 12 on page 15 of
Resp ondenl's brief nd t iso - trike appendix (C attached Io Respondents
brief .andl dl regard as subht.ianie evidence the conientis of appendix B of
Reponidenit' hrief
I pllae no reliance uporn Ihe teslimi no of lartiln J. Leit. a at 1ne,,
called Ih Respondent. reaching the fiindins of fat anid conclu,lin,
achieefed herein hus. I deem it unnece'ssar to letermine helher. in c-
cordalince tth the rirtii cntained n the brief filed hb c unsel for the
(hartln PaIrlt. ll or pecific portion,s of lieittt's testmns should properl
be strlken uiiider Rule h(608hl of the I eleral Rules of I:idence
BARTENDERS, LOCAL 2
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon these facts, which are not in dispute, I find that at
all times material herein Zim's has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find, that at all times mate-
rial herein it has been a labor organization within the
meaning of Section 2(5) of the Act.
I11I THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this proceeding are: (I) whether
during relevant times Respondent has failed and refused to
engage in collective bargaining with Zim's in violation of
Section 8(b)(3) of the Act; (2) whether Respondent, by and
through its agents, in violation of Section 8(b)(2), threat-
ened employees with discharge or loss of employment if
they did not join Local 2; (3) whether Local 2 is responsi-
ble for alleged assault of a managerial and/or supervisory
agent of Zim's and seizure of the premises of two separate
restaurant facilities operated by Zim's, all in violation of
Section 8(b)(l)(A); and (4) whether picketing conducted at
these premises of Zim's by Local 2 violated Section
8(b)(l)(B) of the Act. The first stated issue involves the
further question of whether Zim's had perfected a timely
withdrawal from membership in a multiemployer bargain-
ing unit operated under the auspices of the Golden Gate
Restaurant Association, herein called GGRA. This latter
issue, if resolved adversely to Zim's, also subsumes the fur-
ther question of whether Local 2 consented to Zim's un-
timely withdrawal or whether special circumstances existed
justifying Zim's delay in seeking to withdraw subsequent
to the commencement of multiemployer negotiations.
Respondent denies the commission of any unfair labor
practices and affirmatively contends that Zim's effort to
withdraw from the GGRA was untimely and was neither
consented to nor justified by special circumstances.
B. Pertinent Facts
1. Background facts
a. The principals
At pertinent times, Joseph Belardi has been president of
Local 2, Agnes Barnhill has been executive vice president,
Flo Douglas has been director of organization, and Vito
Saccheri has been a business agent of Local 2. Moreover,
Local 2 concedes that Roger Cardenas, Miguel Contreras,
and Steve Roosevelt were agents of Local 2 for the pur-
poses of the matters pertinent to the instant proceeding.
During material times Steven Zimmerman has been the
executive vice president of Zim's, and Keith Vix has served
as vice president of operations of Zim's. Guy Leonard is
general manager of GGRA.
b. Prefatory events
Zim's operates a chain of restaurants in the San Francis-
co Bay Area, including 12 restaurants in San Francisco.
For a period of approximately 29 years prior to the events
here pertinent, Zim's had been a member of GGRA, a
voluntary association of restaurant operators. During the
period of Zim's membership in GGRA, Zim's had author-
ized GGRA to engage in multiemployer collective bargain-
ing on its behalf with Local 2 and its predecessor labor
organizations. These negotiations had resulted in a series of
multiyear collective-bargaining agreements to which Zim's
had been a party, including a 5-year agreement effective
through August 31, 1977.
In addition, since 1963, as a consequence of an
arbitrator's decision, GGRA had joined with the San Fran-
cisco Club Institute, the San Francisco Hotel Association,
and the Hotel Employers Association to form a single in-
dustrywide multiemployer bargaining unit for the purpose
of bargaining with respect to the terms of trust agreements
covering health and welfare benefits and pension benefits
for employees of the four named associations represented
by Local 2 or its predecessors. The most recent trust agree-
ment covering these benefits was scheduled by its terms to
expire on October 31. 1976. Zim's had been a participant in
the health and welfare and pension plans, and in 1976 Vix
served as a trustee to the trust which administered those
benefits.
In June 1976 Joseph Belardi, on behalf of Local 2, dis-
patched to each of the four associations a letter purporting
to serve as a request to reopen the trust agreement covering
health and welfare and pension benefits.
In August representatives of the four associations and of
Local 2 met pursuant to the benefits reopener, but GGRA
took the position that the June 1976 letter from Local 2
was defective in accomplishing an efficacious reopening of
negotiations for pension benefits. Consequently, GGRA
withdrew from multiassociation bargaining over fringe
benefits.
On September 23, 1976, Local 2 dispatched a letter to
GGRA seeking to reopen the separate, viable collective-
bargaining agreement covering wages and other terms and
conditions of employment. In late October or early No-
vember 1976, GGRA and Local 2 commenced negotiations
pursuant to the September 23 request of Local 2. At the
time of this initial meeting, and at all subsequent times
during 1976, GGRA served as the authorized representa-
tive of Zim's in these negotiations, in which Zimmerman
and Vix participated.
During the course of the negotiations, GGRA main-
tained its position that Local 2 had not effectively re-
opened the agreement on the topic of pension benefits. But
Local 2 maintained otherwise. As the discussion evolved,
GGRA proposed that in order to achieve an effective reso-
lution of the conflicting viewpoints, the parties should pro-
ceed to negotiate a new collective-bargaining agreement to
supersede the existing agreement between the parties. Lo-
cal 2 agreed to this procedure, and negotiations proceeded
on this basis, culminating in a meeting on November 19,
1976. Included in the GGRA proposals submitted prior to
BARTENDERS, LOCAL 765
November 19 were some provisions singularly applicable
to Zim's.
During the three bargaining sessions comprising the No-
vember 19 meeting, the parties achieved a meeting of the
minds which the negotiators believed would provide the
framework for a new master agreement and which they
believed would serve to resolve the pension dispute. Thus,
the parties agreed to defer the scheduled January 1, 1977,
wage increase to June 1, 1977. As an integral element of
this deferral of increased wages, which was the critical is-
sue between the parties during the course of the November
19 meeting, the parties agreed to continue to negotiate un-
resolved issues concerning wages, percentages, craft rules
and general rules until March 1, 1977. By virtue of the
understanding achieved by the parties, any issue still unre-
solved as of March I would be submitted to binding arbi-
tration. The terms of this understanding were subject to the
approval of the executive committee of Local 2. Both Ste-
ven Zimmerman and Keith Vix had participated in the ne-
gotiations in their respective official positions as committee
members of GGRA. Keith Vix was present at each of
the three separate negotiating sessions which transpired on
November 19. Joseph Belardi, the president and chief exec-
utive officer of Local 2, had not been present.
A subsequent decision by Local 2 to insist that wage
increases be deferred only to March 1 instead of June 1
was communicated to GGRA at a subsequent meeting,
and this had the effect of dissipating the basis and frame-
work for a new master agreement.
In the meantime, in a contemporaneous fashion, Local 2
had been conducting negotiations with the San Francisco
Club Institute, the San Francisco Hotel Association, and
the Hotel Employers Association, pursuant to the June
1976 fringe benefits reopener treated by the three partici-
pating associations as effectively reopening the generic
agreement for modifications in health and welfare benefits
and pension benefits. 3 These negotiations resulted in a new
agreement achieved between the parties on December 29.
1976, to be effective from November 1, 1976, through Oc-
tober 31, 1978, covering health and welfare benefits and
pension benefits.
Representatives of Local 2 and GGRA met again on
February 1, 1977, and the December 29 industrywide
agreement relating to health and welfare and pension bene-
fits became the focal point of discussion. GGRA continued
to advance the contention that it was not obligated to ne-
gotiate with respect to pension benefits, but renewed its
stated willingness to resolve the dispute by negotiating a
new collective-bargaining agreement. The deliberations of
February I led to a meeting of the minds calling for adop-
tion of the December 29 health, welfare, and pension bene-
fits agreement, with minor changes; a May I effective date
for wage increases; adoption of a new multiyear collective-
bargaining agreement: and a commitment to continue ne-
Historically. negotiations in health and welfare and pension benefits had
been conducted between Local 2 and the four associations. including
GGRA. on an industrywide basis in contemporaneous fashion with negotia-
tions on other substantive provisions of the master agreement There is no
indication in the record that the negotiations conducted bh the truncated
multiemplover group with Local 2 during the fall of 1976 included ans
negotiations on bargaining topics other than health, welfare. and pension
benefits.
gotiations on certain issues until March 28, with issues not
then resolved to be submitted to binding arbitration. The
welfare and pension funds were formally advised of the
apparent agreement achieved during the February I meet-
ing.
Subsequently, within a few days, a conflict arose be-
tween the parties as to the effective date of the increases in
fringe benefits. Local 2 took the position that the effective
date was February I, and GGRA contended that a March
I effective date was applicable. The parties met on Febru-
ary 7 but were unable to resolve this conflict. The parties
agreed, however, to arbitrate the issue of whether or not
GGRA was obligated to reopen negotiations on health,
welfare, and pension benefits. A second issue to be arbi-
trated was a matter relating to the January I wage reopen-
er. Guy Leonard testified that the parties had reached an
impasse as to the amount of the wage increase.
On May 27 Arbitrator Armon Barsamian issued his
award providing, in pertinent part, that "the Union has the
contractual right to reopen the contract with the Associa-
tion effective November 1, 1976. The issues that are to be
discussed are health and welfare and pensions." The wage
reopener issue was not resolved by the arbitrator. 4
On or about June 13 representatives of GGRA and Lo-
cal 2 met to negotiate a new collective-bargaining agree-
ment to become effective upon the expiration of the cur-
rent agreement on August 31. A second meeting transpired
on June 30, and the parties exchanged written proposals,
including one offered by Local 2 providing for a I-year
agreement. The proposal proffered by Local 2 contained
some of the proposals which had been presented to GGRA
during the negotiations in 1976, but the parties were now
bargaining concerning the basic agreement, which was now
open for negotiations. Between June 13 and the consum-
mation of a new multiyear agreement during the last week
of August, the parties met in 15-20 negotiating sessions.
The new agreement contained a union-security provision.
Thereafter, on September 8, in a memorandum opinion
issued by United States District Judge Spencer Williams
arising from an action filed by Local 2 against GGRA
seeking to determine the binding effect upon GGRA of the
December 29, 1976, agreement covering health, welfare,
and pension provisions, it was held that the December 29
agreement did bind GGRA. The effect of Judge Williams'
decision was to set new contribution rates for fringe bene-
fits paid by GGRA member-employers.5
2. The alleged unlawful conduct
a. The refusal to bargain
(1) Zim's withdraws from GGRA
In the interim, on April 18, some 40 days prior to the
May 27 issuance of the Barsamian award, Zim's dispatched
4These facts are essentially undisputed. and the findings are based pri-
marly upon a composite of the credited testimony of Joseph Belardi. Keith
Vix, Gus Leonard. Steven Zimmerman. and documentary evidence of rec-
ord.
The foregoing is based on the credited testimony of Joseph Belardi,
Agnes Barnhill. Guy Leonard. and documentary evidence of record.
BARTENDERS, LOCAL 2
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a letter to GGRA requesting that its membership in
GGRA be withdrawn effective immediately and stating
further:
. . we have decided that [our] interests would he best
served by following an independent course in the fu-
ture. Zim's now has twelve separate units in San Fran-
cisco, in contrast to the single unit operation of most
of the other members of the Association, and also has
a system of operations somewhat unique among the
other members of the Association. Therefore, it is our
belief that this action will enable us in the future to
fashion a collective-bargaining agreement which will
be more appropriate to our business.
By letter of the same date, Keith Vix notified Joseph Belar-
di, in his capacity as chairman of the pension trust, that in
light of Zim's' withdrawal from GGRA, he was tendering
his resignation as a trustee of the health and welfare fund
effective immediately. In a similar manner, Steve Zimmer-
man resigned from his position on the board of directors of
GGRA. These actions were not contested by GGRA. Ste-
ven Zimmerman also dispatched a separate letter, dated
April 18, to Joseph Belardi in his capacity as president of
Local 2. With his letter, Zimmerman enclosed copies of his
letter to GGRA notifying that association of Zim's with-
drawal. In this connection, Zimmerman alluded to those
portions of the enclosed letter to the association delineat-
ing a belief on the part of Zim's that its best interests would
be served "in pursuing an independent course." In his let-
ter to Belardi, Zimmerman added:
. . . With the growth of our company to twelve
units in San Francisco, we feel that now is the time to
begin to design a labor agreement meeting our partic-
ular kind of operations, which we understand is com-
patible with the approach your Union has recently
been taking with some other restaurants.
Since this approach represents to some extent a de-
parture from our past experience, we would, well in
advance of September I, 1977, suggest that the Union
and Zim's begin discussions with the object of negoti-
ating a collective bargaining agreement which would
address itself more specifically to Zim's Restaurants.
If this suggestion meets with your approval, we are
prepared to begin such discussions as early as May 2,
1977. We would also request that the Union submit an
opening proposal as a basis for beginning such negoti-
ations.
In anticipation of these negotiations, this letter
should also serve as notice to you under the current
agreement of our intent not to be bound by any re-
newals, changes, or extensions to the Health and Wel-
fare and Pension provisions of the current Agreement
beyond the expiration date, but instead to make this
matter a subject for anticipated negotiations on a new
bargaining agreement.
(2) Single-employer "negotiations" commence
During the month of May, Frederick Cohen, area super-
visor for Zim's with supervision over five restaurants, had
occasion to speak with Vito Saccheri, a business agent of
local 2. concerning grievance matters. The 12 Zim's res-
taurants are within Saccheri's job jurisdiction. During the
course of these conversations, Saccheri, who had been re-
cently appointed to his position, stated boastfully that
since Zim's had become "an independent," he would be
meeting with Vix and Douglas for the purpose of negotiat-
ing a contract. These conversations transpired in mid-May.
At approximately this point in time, Flo Douglas, director
of organization for Respondent, spoke with Vix by tele-
phone, and during the course of the conversation she re-
ferred to Local 2's receipt of Zim's April 18 letter. She also
discussed some grievance matters. The parties agreed to
meet on May 26. However, this meeting was postponed,
and a future meeting was set for June 3. Then, during the
last few days of May, Vito Saccheri contacted Cohen by
telephone at Douglas' request and expressed his concern
over personnel actions which affected two employees and
which appeared to be contrary to an understanding
reached earlier between Saccheri and Cohen. Saccheri ob-
served, in effect, that this grievance matter could be de-
ferred for a few days because in any event he was going to
be seeing Vix "regarding negotiations." 6
The parties met on June 3 in the office of Keith Vix, who
served as principal spokesman for Zim's during the 90-
minute meeting. Joseph Belardi had not been informed of
the meeting and did not learn about it until after its conclu-
sion. Steven Zimmerman was present during a portion of
the meeting. Flo Douglas and Vito Saccheri represented
Local 2. Douglas was the principal spokesperson for Local
2.
After pleasantries were exchanged, Douglas inquired
why Zim's had withdrawn from GGRA. Vix explained that
as a member of GGRA, Zim's had only one vote, notwith-
standing the fact that it operated 12 restaurants in San
Francisco. Vix asserted that the size of the Zim's operation
and its diversified nature required a collective-bargaining
agreement tailored to Zim's needs. Vix noted the variation
in the several groups of restaurants in San Francisco. He
expressed the belief that an individual contract geared to
Zim's needs would be in the best interest of Zim's manage-
ment and its employees. In this regard Vix noted that the
age mix of Zim's employees was quite different from that
in the established restaurants in San Francisco which ca-
tered to the dinner or house trade and which had an older
and less transient class of personnel. Vix also stated that he
had heard a great deal of conversation "since the beginning
of May" regarding a potential strike which was purported-
1' scheduled to take place at the end of August. Vix added
that he was concerned with the lack of apparent progress
being made between Local 2 and GGRA in their negotia-
tions, and for these various reasons, he stated that Zim's
wanted to sit down and negotiate a collective-bargaining
contract. As Vix proffered this explanation, Douglas nod-
' I h foregoing findings are based prinmarils upon the credited testimony
of Frederick (Cohen which is not directly refuted. Vito Saccheri was not
called Io estify Flo Douglas' testimons reveals that she and Saccheri dis-
cussed some outstanding grievances. and she encouraged Saccherl to set up
a Meeting with Vix to discuss them. She did not deny the reference attribut-
ed to her by Vix relating to Zim's April 18 withdrawal letter.
BARTENDERS, LOCAL 767
ded her head in apparent agreement. She verbalized noth-
ing.
In context with these statements, Vix asked Douglas if
she had any contract proposals in mind. In response.
Douglas submitted a copy of the agreement between Local
2 and independent restaurant operators who were not
members of or represented by any association. Douglas
stated that she would like to have Zim's sign the indepen-
dent agreement. Vix did not take the document but stated.
"You've got to be kidding." [le added that this agreement
was essentially the same agreement that Local 2 had with
GGRA. He emphasized that Zim's was seeking an individ-
ual contract geared to Zim's needs. In rejecting Douglas'
proffer of an independent agreement. Vix inquired as to
what Local 2 had in mind for Zim's. Douglas responded
that Local 2 would draft its proposals, and Vix stated his
agreement with this procedure, adding that the parties
would exchange proposals at future meetings.
As the meeting progressed, Douglas stated that she and
Saccheri would be negotiating for Local 2 and cautioned
that they' could not enter into an agreement binding on
Local 2. She stated that any tentative agreement achieved
between them would have to he submitted to Joseph Belar-
di and the executive committee for approval. Vix asserted
that he was in a similar position in that the executive com-
mittee of Zim's would have to approve any agreement be-
fore it became effective. Neither Douglas nor Saccheri stat-
ed, in words, that Zim's would he bound by the results of
the GGRA-Local 2 negotiations.
Douglas inquired as to Zim's intentions regarding the
health and welfare contributions which were in arrears. Vix
stated that it was Zim's position that it would be bound by
the GGRA agreement only through August 31. when it was
due to expire, and that any ruling which may issue from
the arbitrator would bind Zim's only until August 31.
At this point in the meeting, Zimmerman left. Frederick
Cohen joined the group, and some grievance matters were
discussed. This discussion had commenced prior to the
time Cohen entered the meeting, and his participation last-
ed approximately 5 minutes.7
As a business agent for Local 2. Douglas had no authori-
ty to bind Local 2 to any bargaining agreement other than
These findings are based n the credited eslmon ,f Keith :1i ,d
Steven Zimmerman I credit the testimons of lIo [)ouglis onl' ii, Ihe extelt
that it is consistent with these findings
I am convinced from m observations of SVi and Zinmmernl.n Ia he
testified concerning the events surrounding the June mreeting that tIe
testified accurately concerning the meeting. both front the standpoint of
sequential happenings and from the standpoinl of substanme dciiuio.n
In contrast, as I observed ri o Douglas testif? concerning the leetine. I a,
not convinced concerning the accurac, of her recall hus. I credit Vix jind
Zimmerman in finding that. contrars to the testimony of Douglas. Zinimer-
man did attend significant portions of the meeting Nloreoser. contra r to
Douglas. I find that the topic f Zim's ithdrawal froim ((;R& .i1nd .a
discussion of new contractual terms occurred early in the meeting I lihe
grievance discussion followed some 30 minutes of di;loeue hbetcenl hc
parties.
With respect to the discussion of new cintrlactual terms and the realons
for Zim's withdrawal from GGRA. I find that Vix's explanation for the
reasons for the withdrawal were not as truncated or terse is [)Douelal tcml-
mony would indicate, nor was the discussion f contr.clua.l ernm, a, ahhre-
viated as Douglas' esttimon would suggesl In hboh hese respect,. I fid
the conlmp)site of the eslhmnin\ f \i1 and Zmnernlan mrle redibhl
an industrywide independent agreement. Douglas pos-
sessed no authority to negotiate collective-hargaining
agreements which would differ from the master agreements
pertinent herein the GGRA agreement and the indepen-
dent agreement. Under practice of Local 2. Belardi's parti-
cipation and that of an executive committee of ocal 2 is
essential in negotiating agreements different from the mas-
ter agreements. When employer-members withdraw from a
multiemployer association it is the practice of Local 2 to
seek to have the employer sign an independent agreement
to protect the continuity of the health, welfare, and pension
contributions and benefits. The memorandum agreement
which Douglas presented to Vix during the course of the
June 3 meeting. and which Vix characterized as essentially
the same as the GGRA agreement. incorporated the inde-
pendent agreement.'
(3) The June 6 correspondence
On June 6 Joseph Belardi dispatched a letter to Zim's
which was hand-delivered to Steven Zimmerman by Vito
Saccheri. The letter read:
As far as we are concerned, since you are no longer a
member of the Golden Gate Restaurant Association,
Health and Welfare and Pension contributions at the
new rate of $76.17, is to be paid immediately, retroac-
tive to the March payment. since we won the Arbitra-
tion.
In delivering the letter to Zimmerman. Saccheri stated
that Belardi had requested him to have Zimmerman ac-
knowledge by his signature that Zim's was bound hb the
new health and welfare rate. Zimmerman stated that in his
view. Zim's was bound hb the GGRA contract only until
August 31. Saccheri responded that Douglas would be con-
tacting Vix regarding a date for the next negotiation ses-
sion.
Zim's responded to Belardi's June 6 letter through a let-
ter from its counsel. Roger Mulholland, whose services had
been retained a few months earlier. In substance, the letter
noted that Zim's was maintaining the position taken in its
earlier, April 18 withdrawal letter relative to renewals.
changes, or extensions of the health, welfare, and pension
provisions of the then-current agreement. In pertinent part,
the letter contained the following: "Again, we anticipate
that our upcoming negotiations will include this matter as
a subject for bargaining."
(4) The July 5 meeting
A meeting transpired between the parties on July 5. It
was arranged by Douglas, who contacted Vix and stated
the desire of Local 2 to meet with him. In making the
request, Douglas referred only to certain grievance matters
before the adjustment board. No contract proposals were
exchanged in advance. The meeting was held at the corpo-
rate offices of Zim's. and Zim's was represented by Vix and
I lhc rcdied tesnti ns of Joseph BIclardl .iand I i [)oug s etalihhshes
the fI)rcC iln'i e
ihc rciilltd teCIIIlmlls *'f SlcxCI1 Zlumieimlan. R ,r Mlillilll, d, and
dctlI Iltcu f C kc t C.lhilhCs [t f'rcelrlr
BARTENDERS, LOCAL 2
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roger Mulholland. Joseph Belardi, Agnes Barnhill, and
Douglas attended on behalf of Local 2. Vix and Belardi
were the principal spokesmen for the respective parties.
The meeting lasted approximately 2 hours.
After some preliminary discussions, Belardi inquired if
Zim's was going to make payments at the new contractual
rate to the health and welfare trust. Belardi stated that it
was the position of Local 2 that it had prevailed before the
arbitrator on the issue, and Vix responded that it was the
belief of Zim's that GGRA and Local 2 were obligated by
the arbitrator's decision to negotiate the issue of health,
welfare, and pension rates. Vix noted also that he had no
information indicating that those negotiations had been
concluded. In substance, he assured Belardi that Zim's
would be bound by the results of those negotiations, but
only until August 31. This discussion consumed approxi-
mately 5 minutes.
At this point in the meeting, the discussion turned to the
question of negotiations between Local 2 and GGRA. In
this connection, Vix asked Belardi to describe the type of
contract which Local 2 was seeking from Zim's. In re-
sponse, Belardi presented the proposals which had been
presented to GGRA on June 30 and which were then on
the table in the negotiations between Local 2 and GGRA.
Vix asserted that Zim's wanted a contract tailored to its
operations, and Belardi responded that first the matter of a
basic agreement would have to be worked out. He added
that there would be only one contract for the entire indus-
try. Belardi stated there would be no "sweetheart deals."
At this juncture, using the GGRA proposals as a basis
for their discussion, the parties embarked upon an item-by-
item scrutiny of that proposal. Some items were merely
noted, but discussion transpired with respect to other pro-
visions, and some clarifications were offered. Provisions
discussed related to discrimination, shoes for cooks, uni-
forms and linen, holidays, and funeral leave. The parties
agreed that one provision relating to fast-food operations
did not apply to Zim's, and this and other provisions not
applicable to Zim's operations were omitted from their dis-
cussion by agreement of the parties. This item-by-item
scrutiny lasted approximately 45 minutes.
After completing their consideration of the GGRA bar-
gaining proposals, Belardi asked if Zim's had any propos-
als to advance. Vix responded that Zim's proposals had
not been completed, but that they would be submitted
within a reasonable amount of time. Belardi requested that
the proposals be made available within a week. Vix stated
that this was an insufficient amount of time, and it was
agreed that 2 weeks would be allotted for preparation. A
meeting was scheduled for 2 p.m. on July 20 at the offices
of Local 2.
(5) The aftermath
On July 7 Vix received a one-page document carrying
the typewritten caption "Health and Welfare and Pension
Proposals." Above the caption was the handwritten nota-
tion "Zim's," which Vix believed was on the document
when he received it. During the course of the July 5 meet-
ing, Belardi had directed Barnhill to mail health, welfare,
and pension proposals to Vix.' °
On July 15 counsel for Local 2 dispatched a letter to
Zim's advising Zim's that Local 2 considered Zim's to be
bound by any collective-bargaining agreement subsequent-
ly reached between Local 2 and GGRA as a result of the
collective bargaining which had been in progress between
those two parties. Counsel stated as a basis for this position
the fact "that Zim's did not withdraw from a multi-em-
ployer bargaining unit, i.e., the Golden Gate Restaurant
Association, prior to the commencement of negotiations
for the industry contract."
The meeting scheduled for July 20 did not transpire. On
July 18 the July 15 letter from Local 2 was received by
Zim's.
In the meantime, prior to receipt of the July 15 letter
from Local 2, representatives of Zim's spent approximately
20 hours drafting counterproposals.
On July 20 Roger Mulholland, counsel for Zim's re-
sponded to the July 15 letter from Local 2, stating, in ef-
fect, that the legal position of Zim's was that it had effectu-
ated a timely withdrawal from association bargaining. The
letter contained an insistence that negotiations for a "sepa-
rate collective-bargaining agreement" continue."
(6) Interim related events
In April 1977 during the course of a trustees' meeting,
1 lI credit the testimony of Joseph Belardi to the effect that his instruc-
tions to Barnhill were to mail the health, welfare, and pension provisions
which Local 2 was contending were effective by reason of the arbitrator's
award.
I The foregoing findings are based primarily upon the credited testimony
of Roger Mulholland and Keith Vix and documentary evidence of record. I
have considered the testimony of Joseph Belardi, Agnes Barnhill, and Flo
Douglas and credit it only to the extent that it is consistent with the findings
above made.
The findings with respect to the July 5 meeting are based upon a careful
analysis of the testimony of the witnesses who appeared before me and who
were participants in that meeting. I am convinced, upon a careful analysis
of that testimony and upon my observation of the witnesses who did partici-
pate in the meeting and who testified before me at the instant hearing, that
the account of Mulholland and Vix more accurately described the salient
events of that meeting. In many respects the testimony of Belardi. Barnhill.
and Douglas impressed me as being overly influenced by their perceived
need to proffer witness stand explanations concerning the asserted subjec-
tive intent which thes harbored in carrying out their actions and in partici-
pating n the dialog which comprised the July 5 meeting. To this extent, the
credibility and reliability of their testimony as an accurate gauge of the
events at the July 5 meeting was significantly diminished. Moreover, while
Mulholland's testimony overstates the length of the meeting, the testimony
of Belardi. Barnhill. and Douglas understates to a substantial degree the
length of time which the parties spent in completing the business of the
meeting. This was consistent, in my view, with the effort on the part of
witnesses called b Respondent to discount the significance and importance
of the events which took place at the meeting.
In reaching the credibility resolution above made and finding the facts
pertaining to the July 5 meeting in the manner set forth above. I have
scrutinized the content of the very sketchy notes taken by Barnhill during
the July 5 meeting. I find that they support rather than refute the testimony
of Mulholland and Vix that a substantial period of time was spent during
the course of the meeting in an item-by-item scrutiny of the GGRA propos-
als. as found. I am unable to credit the testimony of Respondent's witnesses
to the effect that no discussion of significance concerning the GGRA pro-
px)sals transpired during the course of the July 5 meeting.
The testimony offered by the General Counsel's witnesses and the docu-
mentary evidence in support thereof introduced by the General Counsel
pertaining to the eventsfollowing the July 5 meeting is supported by credited
and essentially unrefuted testimony.
BARTENDERS, LOCAL 769
the resignation of Keith Vix as a trustee was discussed.
Joseph Belardi was present, as were the principals of the
four associations, including Guy Leonard of GGRA. Be-
lardi stated that his attorney had advised him that Zim's
withdrawal from GGRA had been untimely and that, as a
consequence, Zim's would be bound by any agreement be-
tween GGRA and Local 2. Belardi asserted that he was of
the same opinion as his attorney.
Subsequently, during a May 1977 meeting between Leo-
nard and Belardi, Belardi emphasized that Local 2 was
adhering to his position that Zim's would be bound by any
agreement negotiated between Local 2 and GGRA. This
comment was in context of a discussion relating to the
timeliness of Zim's withdrawal from GGRA. During meet-
ings of the trustees in May, June, and September, Belardi
reiterated the position of Local 2 in this regard. The Sep-
tember meeting was held subsequent to the late August
execution of the new agreement between Local 2 and
GGRA.
In the meantime, at a June 13 negotiating meeting at-
tended by Belardi and Guy Leonard, the issue of the with-
drawal of certain restaurants, including Zim's, was a topic
of discussion. Belardi stated that he wanted the GGRA
representatives to know that Local 2 had agreed to meet
with Zim's independently. In response to a question as to
the type of agreement which Local 2 was going to negotiate
with Zim's, Belardi responded that, in accordance with
past practice, anything he negotiated separately with Zim's
would be submitted to GGRA for approval.' Belardi in-
formed the parties present at the June 13 meeting that Lo-
cal 2 had agreed to meet with Zim's and discuss certain
topics that were peculiar to the Zim's operation. Belardi's
comments at the meeting indicated that he had discussed
this matter with Vix, and Belardi had indicated to Vix that
Local 2 would be willing to meet independently with Zim's.
At the June 13 meeting between Local 2 and GGRA and at
subsequent meetings wherein the progress of negotiations
between Local 2 and Zim's was raised by the negotiators
representing GGRA, Belardi maintained that Zim's was
going to be bound by any agreement achieved between Local
2 and GGRA.
Joseph Belardi testified that from the beginning of the
negotiations between Local 2 and GGRA, Vix advanced
the notion that Zim's desired to achieve some provisions
"tailor-made" to the Zim's operation. Belardi further testi-
fied that he took the position that he would consider a side
agreement or an addendum to the GGRA agreement, but
only within the context of the GGRA agreement. Belardi
also testified that in November 1976 he discussed his ap-
proach with Guy Leonard and advised Leonard that he did
not wish the side agreement to be incorporated in the
agreement between GGRA and Local 2. Belardi preferred
to have it handled in letter form originating from GGRA
which would have the effect of extending certain privileges
to Zim's, as patterned after an approach used on a previous
12 The credited testimony of record reveals that separate agreements had
been negotiated by Local 2 with certain restaurants in the San Francisco
area and that these agreements had been achieved "within the framev,ork"
of the GGRA agreement. Primaril. but not exclusivel?. these agreements
had been achieved between Local 2 and certain chain restaurant ioperations
occasion with respect to a principal chain restaurant opera-
tion in the San Francisco area.
Belardi further testified that when proposals were ex-
changed between Guy Leonard and himself on February I
or 7. there was a special clause in the GGRA proposals
relating exclusively to Zim's. In an aside during the Febru-
ary I meeting, according to the testimony of Belardi, Vix
reminded him of the special considerations which he de-
sired to have Local 2 extend to Zim's. Belardi testified that
when the apparent agreement on contract terms, which
had been achieved on February 1, fell apart during the
course of the subsequent February 7 meeting, the side-ar-
rangement with Zim's and the GGRA proposal g ranting
Zim's special considerations became inoperative.'
Conclusions
The principal issue in this facet of the case is whether
Zim's effected a timely withdrawal from GGRA, the mul-
tiemployer association through which it had negotiated for
a number of years, and, if it did not, whether Respondent
consented to Zim's effort to untimely withdraw and/or
whether Zim's belated withdrawal was justified by special
circumstances. If any one of these alternative theories of-
fered in support of the complaint allegations is supported
by the record evidence, a violation of Section 8(b)(3) per-
force results by virtue of Respondent's conduct in refusing
to negotiate with Zim's after July 5.4
The General Counsel bases the theory of a violation
squarely on the consenting nature of Respondent's conduct
during the course of the meetings held between Respon-
dent and Zim's on June 3 and July 5. The Charging Party
predicates its notion of a violation on the alternative theo-
ries described above, which are within the parameters of
the issues litigated during the course of the instant hearing.
For its part, Respondent contends, in substance, that the
attempt of Zim's to withdraw from multiemployer bargain-
ing came in an untimely fashion during a pause or inter-
lude in a viable collective-bargaining continuum. Respon-
dent further contends that Zim's attempted untimely
withdrawal was neither consented to nor rendered justified
by special circumstances. In these latter respects, Respon-
dent avers that the overt action of its representatives dur-
ing the course of the June 3 and July 5 meetings must be
given careful scrutiny in light of collective-bargaining au-
thority actually vested in each of them; the collective-bar-
gaining experience of Joseph Belardi, Respondent's princi-
pal negotiator; and the industrywide collective-bargaining
realities which attended the dialog between Zim's and Lo-
cal 2.
In agreement with Respondent, I find that the complaint
allegations are not sustainable on any of the three theories
'I credit the abose testimony of Belardi, which is supported in some
aspects bh the testimony of Guy Leonard. Belardi testified that he envisaged
an understanding in writing defining with particularity those provisions of
the industr agreement which would not be applicable to Zim's. The entire
thrust of Belardi's testimony in this regard revealed that these provisions
were of relativels incidental character and did not encompass the principal,
substantive money and working condition provisions historically embedded
in the Industry agreement.
'' The matter of timel) withdrawal was placed n issue by Respondent,
but the (harging Part> embraced the issue.
B A R T E N D E R S,~ ~ ~ ~ ~~ . L O A 2 769 , _, . .
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advanced by its proponents.
Initially, I find that the negotiations which commenced
in November 1976 between GGRA and Respondent were
for a new master agreement to effectively supersede the
existing agreement. Thus, I conclude that the negotiations
which resulted from Respondent's September 23 wage reo-
pener of the then-existing collective-bargaining agreement.
through mutual consent of GGRA and Local 2, evolved by
early November into negotiations for an entirely new col-
lective-bargaining agreement covering all substantive wage
and employment conditions, as well as health, welfare, and
pension benefits. In consenting to negotiating a new master
agreement, Local 2 offered the quidpro quo of deferring for
6 months the January I wage increase obtainable under the
existing contract. While consummation of a new master
agreement proved elusive, the collective-bargaining efforts
of the parties were featured by fundamental conceptual
and behavioral continuity in that neither GGRA nor Local
2, during the progress of the bargaining, abandoned the
search for a new master agreement as the alternative to the
narrower wage negotiations mandated by the September 23
wage reopener. Thus, although the apparent agreement
achieved on November 19 evaporated, the parties returned
again to the bargaining table in February with a commit-
ment to negotiate a new master agreement as the device for
resolving not only the wage issue but the still troublesome
pension issue as well. Here, too, when the apparent agree-
ment achieved by the parties broke down on the issue of
the effective date of increased health. welfare, and pension
benefits, the parties remained committed to the concept of
a new master agreement and agreed on February 7 to re-
sort to binding arbitration as a means of resolving the ben-
efits payment issue which separated them from final ac-
cord on contractual terms. Contrary to the contention of
the Charging Party, I find that this resort to interest arbi-
tration was in direct aid of the bargaining process and did
not constitute an abandonment of the concept of bargain-
ing table efforts towards a new master agreement.
Between February 7 and June 13 no bargaining meetings
were held, and no proposals were exchanged. But when the
parties returned to the bargaining table, they resumed their
negotiations with the objective of negotiating a new master
agreement. Although several bargaining sessions were re-
quired to work out the details of the agreement ultimately
achieved, the conceptual framework which the parties had
constructed by virtue of their earlier negotiations, and the
substantive product of those earlier efforts, remained ba-
sically intact. Interest arbitration had been permitted to
function, and the fruits of that process had been accepted
by the parties. They moved on to complete the task upon
which they had embarked in November. The interludes
which had delayed the bargaining progress had not dis-
turbed the underlying continuity of the negotiations but
rather had served to heal the disagreements fostered by
differing interpretations accorded key issues by the parties
to the negotiations. Because the multiemployer negotia-
tions which commenced in November 1976 and terminated
in late August 1977 had an integral continuity of purpose,
process, and objective, I find they constituted a single
course of collective bargaining. As such, the bargaining
process after June 6 may not be fragmented for analytical
purposes from the predecessor process which transpired in
February. It follows that Zim's attempt to withdraw from
multiemployer bargaining in April, during a mere pause in
negotiations, was untimely. See N.L.R.B. v. Brotherhood of
Teamsters and Auto Truck Drivers, Local No. 70, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America California Trucking Association], 470
F.2d 509 (9th Cir. 1972); N.L.R.B. v. Jeffries Banknote
Cormpan., 281 F.2d 893 (9th Cir. 1960); Goodsell & Vocke,
Inc., 223 NLRB 60, 65-66 (1976). Cf. Retail Associates,
Inc., 120 NLRB 388 (1958).
This determination gives rise to the further question of
whether Local 2 consented to Zim's untimely withdrawal.
The matter is not free from doubt, but the totality of the
record evidence requires a rejection of the General
Counsel's position. It is apparent from the record evidence
that at all times, both in the meetings with GGRA and in
those with Zim's, Belardi took the position that while he
would, at an appropriate time, consider side proposals de-
signed to give Zim's relief from problems peculiar to its
operation, he would insist that Zim's be bound by the
GGRA industrywide agreement. Moreover, the record ful-
ly supports the finding, which I make, that neither Flo
Douglas nor Vito Saccheri possessed the authority to nego-
tiate contract terms which varied in any manner from the
independent or associationwide agreements. Authority to
do so resided exclusively with Belardi and the executive
board. It thus seems apparent, and I find, that the efforts
of Douglas and Saccheri at the June 3 meeting were limited
to a fulfillment of Douglas' notion that she was required by
responsibility entrusted to her to obtain Zim's signature on
an independent agreement in order, on an interim basis, to
protect the continuity of the health, welfare, and pension
benefits of Zim's employees. It must be remembered that
Douglas and Saccheri met with Zim's without the specific
clearance or authorization of Belardi, and, although the
June 3 meeting served as a precursor of the July 5 meeting,
the collective-bargaining discussions in which Douglas and
Saccheri engaged were not at the instruction of Belardi and
may not be realistically viewed as possessing authoritative
gloss vis-a-vis Local 2. Nor may the conduct of these func-
tionaries at the June 3 meeting be construed as an official
commitment of Local 2 to single-employer collective-bar-
gaining agreement. To do so would require the most hyper-
technical application of the principles of agency and an
unwarranted fragmentation of record evidence.
The concept of literalness which is the foundation of the
General Counsel's theory of the case lends some support to
the contention that a process of single-employer bargaining
was tentatively broached by Respondent through Douglas
and Saccheri. Thus, literally speaking, Douglas' willingness
to discuss with Vix the consummation of an independent
agreement infers a concomitant willingness to treat sepa-
rately with Zim's outside the associationwide bargaining
framework. But here again the agreement proffered to Vix
was indistinguishable in a substantive sense from the
GGRA agreement, and Vix predictably rejected it out of
hand. But in sketchily outlining a skeletal process for fur-
ther dialog, Douglas reminded Vix that authority resided
with Belardi, and there was no important later implementa-
tion of the process: no proposals were prepared or ex-
BARTENDERS. LOC`AL 771
changed. Then, when Belardi entered the picture, all that
Douglas had inferred by submitting the independent agree-
ment was inferentially countermanded. The principal had
not ratified the actions of the subordinate.
So, too, with the events following the meeting of June 3.
there is a basis upon which, by a process of literalness. a
willingness on the part of Belardi to deal separately with
Zim's outside of the multiemployer context could be con-
jured. But to isolate one item of correspondence. and to
segregate elements of conduct at one meeting from an en-
tire series of closely related and highly pertinent events,
would result, in my opinion, in an unwarranted elevation
of form over substance.
What is required by the record, in my view, is the con-
clusion that Belardi's dispatch of his June 6 letter. subse-
quent to the June 3 meeting between Zim's. Douglas. and
Saccheri, was an effort to secure Zim's payment of health.
welfare. and pension rates consistent with the Barsamian
award. In this regard, I find that in dispatching the June 6
letter, Belardi was aware that Zim's was claiming to have
withdrawn from GGRA. and Belardi took the practical
step of informing Zim's that whatever the legal status of
Zim's relationship to GGRA. Zim's. like GGRA. was obli-
gated by the Barsamian award to pay the higher benefit
rates. He knew, of course, that resignation from member-
ship in GGRA did not release the resigning employer from
the existing contract. This action in no manner infers. in
my judgment, acquiescence or approval on the part of Lo-
cal 2 to Zim's withdrawal, with the accompanying legal
implications thereof.
Moreover, Belardi's subsequent conduct at the July 5
meeting is in keeping with this interpretation and with the
prior, contemporaneous. and subsequent position he was
taking with GGRA on the question of Zim's withdrawal.
Assessing the July 5 meeting, and particularly Belardi's
participation therein, I find nothing of substance which
justifies the General Counsel's contention that Belardi en-
gaged in single-employer negotiations with Zim's. as dis-
tinct from a pragmatic, low-keyed bargaining effort on his
part to acquaint Zim's with the progress of GGRA negotia-
tions, the proposals on the table in those negotiations, and
the impact or applicability of those proposals to Zim's op-
eration. This conduct on the part of Belardi is consistent
with an effort of Local 2 to retain Zim's in the multiem-
ployer bargaining group by (I) discouraging the notion
that the provisions of any GGRA agreement ultimately
achieved could be effectively ignored or set aside by Zim's
through the complicity of Local 2 and (2) achieving peace-
ful reconciliation of Zim's interests to the end of ultimately
convincing Zim's of the financial and logistical impracti-
cality of seeking to extricate itself from multiemployer bar-
gaining, while (3) exploring on a preliminary basis the pa-
rameters of a possible side agreement within the
framework of the GGRA agreement. as broached during
GGRA negotiations. 5
It is clear from the precedent controlling the instant legal
issue that the question of consent or acquiescence and an
At the Jul 5 meecing, Belardi insisted on first things,, frt A- 1 dl.,C.Ussm
of a side greemenl wals leirlN lbohordln.cited to 71111r .Icept.lii. c of tIh
(;(RA agreement. hen at.hieed
employer's attempted withdrawal from multiemployer bar-
gaining is one of fact to be determined from the entire
record. I.C. Refrigeration Service, Inc.. 200 NLRB 687
(1972). Although consent may he inferred from the con-
duct of the labor organization. such conduct usually must
involve a course of affirmative action "clearN antithetical
to the claim of the labor organization that the emploher
has not withdrawn from multi-employer bargaining." See
The John J. Corbett Press. Inc., 163 NLRB 154 (1967). A
prime indicator of consent or acquiescence on the part of a
labor organization is its willingness to engage in individual
bargaining with the emploNer seeking to abandon multiemn-
ploNer bargaining. /.(C. Rfrigeration Service, supro. While
individual bargaining may not, in every instance, result in a
determination that the labor organization has acquiesced.
the Board has repeatedly found that such individual bar-
gaining demonstrates a labor organization's acceptance of
the employer's withdrawal. Recently, the Board reaffirmed
the concept that acquiescence exists where a labor organi-
zation engages in separate negotiations with a withdrawing
employer, listens to counterproposals. and agrees to make
certain concessions not offered the association. I. C Refrg-
eration Senice, supra: Hartz-Kirkpatric (A onstruclion (o.,
Inc.. 195 NLRB 863 (1972). However. as I view the instant
record, giving proper attribution and weight to Belardi's
conduct and policies as articulated not only at the meeting
of Jul 5 but during the course of the negotiations with
(GGRA. I find no conduct on the part of Local 2 which
may realistically be viewed as evincing a willingness on the
part of Local 2 to meet with Zim's separately for the pur-
pose of discussing proposals peculiar to Zim's operation
and different from those under negotiation with GGRA. to
listen to counterproposals erosive of those under negotia-
tion with GGRA. or to otherwise engage in a course of
collective-bargaining conduct which was antithetical to Lo-
cal 2's claim that Zim's had not effectively withdrawn from
multiemployer bargaining. The contract terms discussed on
July 5 were those on the table in the GGRA negotiations.
Belardi's inquiry whether Zim's had any proposals to offer
and his insistence that they be presented at a meeting to
follow were not so definitive in meaning as to warrant a
finding that Belardi intended thereby to directly counter-
mand his earlier statement in the same meeting that the
GGRA agreement would bind Zim's but that an adden-
dum or side agreement satisfactor to GGRA was an ulti-
mate possibility. There is little support in the record for the
assumption that Belardi intended Zim's to expend time
preparing a full set of counterproposals. I conclude from
the record evidence as a whole that this latter conduct was
gratuitous on the part of Zim's and was calculated to have
a strategic effect beyond the next scheduled meeting. Ap-
plicable to the instant factual situation is a recent decision
of the Board in Bloom & Meyer Construction Company. 230
NLRB 370, 371 (1977), wherein the Board stated:
While, as noted previously. we accept the Regional
Director's finding that the Employer's attempted with-
drawal from the Association contract was untimel),
we do not find that the Unioi's actions here demon-
strate acquiescence in the Employer's attempted with-
draval from multiemplover bargaining. Rather, we
BARTENDERS LOCAL 2
.. . . . \ / . .
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclude that the Union's actions are not inconsistent
with an attempt to retain the Employer in the mul-
tiemployer group rather than engage in individual bar-
gaining. Supporting that conclusion we note that, al-
though the Union's business manager admitted that a
separate contract with the Employer was "possible,"
at no time did he in fact offer proposals which would
differ in any way from the terms of a multiemployer
contract which he anticipated negotiating with the As-
sociation. Moreover, the Union's statement that it
would work with the Employer regarding the desired
change in the job referral system does not indicate
individual bargaining.
Since the Employer's individual concerns had previ-
ously been dealt with in the multiemployer bargaining
context, the Union's actions in trying to achieve a
peaceful reconciliation by reminding the Employer
that its concerns had been represented by the Associa-
tion do not evidence that "course of affirmative action
'clearly antithetical' to the union's claim that the em-
ployer has not withdrawn from multiemployer bar-
gaining" which the Board has required in order to im-
ply that a union has consented to an untimely
withdrawal. We therefore conclude that, in the cir-
cumstances here, the Union did not acquiesce in the
Employer's untimely withdrawal from multiemployer
bargaining.
On the basis of the foregoing rationale, and upon a care-
ful evaluation of the record evidence herein, I find that
Respondent did not consent or acquiesce to the untimely
withdrawal of Zim's from multiemployer bargaining.
Nor am I of the opinion that special circumstances justi-
fied Zim's withdrawal from multiemployer bargaining. The
Charging Party correctly contends that by mutual agree-
ment GGRA and Local 2 attempted to negotiate and con-
clude a new collective-bargaining agreement some 10
months in advance of the expiration date of the existing
agreement.' However, a fair assessment of the record evi-
dence, including a less-than-definitive testimonial refer-
ence on the part of Leonard to the existence of an impasse
in bargaining between Local 2 and GGRA, does not fully
support the additional contentions of the Charging Party
that the parties to that bargaining had negotiated to a point
of impasse when negotiations were suspended in February
1977 or that upon resumption of their bargaining meetings,
the parties started from scratch in their negotiations. The
Charging Party correctly notes that the Board has held that
an impasse in bargaining does not constitute sufficient
"unusual circumstances" to justify an untimely withdrawal
from a multiemployer unit. Hi-Way Billboards, Inc., 206
NLRB 22 (1973).' Moreover, I am unable to discern any
16 The Charging Party is correct in averring also that. in this connection.
a 4-month hiatus in negotiations between February and June 1977 occurred.
but this amalgam of fact and circumstance has been considered ante and is
not persuasive.
i The question of impasse was not litigated, and there is insufficient
evidence to warrant an affirmative finding that Local 2 and GGRA reached
a bargaining impasse within the legal definition of that term.
justification for Zim's actions flowing from a willingness
of its duly designated bargaining agent, GGRA, to enter
into early negotiations. The Charging Party asserts, none-
theless, that since the unresolved issues relating to the reo-
pener were submitted by GGRA and Local 2 to binding
arbitration which would also bind Zim's for the duration of
the then-existing associationwide contract, the withdrawal
of Zim's in April during the pendency of the arbitration
would not have had the effect of upsetting any balance
between GGRA and Local 2. The Charging Party cites no
Board precedent on which it may be concluded that a per-
missive policy of the type suggested is one favored by the
Board, in the absence of compelling accompanying consid-
erations which are not here present. Cf., e.g., Spun-Jee
Corp. and The James Textile Corp., 171 NLRB 557 (1968).
In sum, I find that Zim's did not effect a timely with-
drawal from the multiemployer bargaining unit, that a sin-
gle-employer unit of Zim's was not a unit in which Respon-
dent could have been compelled to bargain on April 18 or
at any subsequent time relevant herein, and that Respon-
dent is not guilty of an unlawful refusal to bargain within
the meaning of Section 8(b)(3) of the Act. Cf. Hartz-Kirk-
patrick Construction Co., Inc., 195 NLRB 863 (1972);
Southern California Pipe Trades District Council No. 16 of
the United Association (Aero Plumbing Co.), 167 NLRB
1004 (1967).
b. The alleged restraint and coercion
(1) Threats of discharge for nonmembership
On September 4, 1977, Channing May commenced her
employment with Zim's as a waitress. In early October she
was working at the Lake Side facility of Zim's. On this
occasion, in the early afternoon, while May was working
the counter, a union agent approached May, identified
himself, and presented his business card stating he was
from Local 2. He identified May by name and correctly
noted the date on which May had commenced her employ-
ment with Zim's. He then spoke to May about the necessity
of joining the Union and specified an amount which would
be required as an initiation fee. The union agent stated that
if May did not join the Union, it would be difficult for her
to keep her job. May responded that the restaurant was no
longer a "union house" and asked if union membership
was compulsory. The union agent responded, "Well, yes, it
is." May stated that she would consider what he had said.
Approximately 2 or 3 weeks later, the same individual
entered the Lake Side facility while May was on duty. He
was accompanied by Roger Cardenas, a vice president of
Local 2, and Cardenas spoke to May as she performed her
work assignments at the counter. As the conversation
evolved, May stated that she resented the tactics that were
being used because she considered them coercive. May
added that she had no response to make to the Union until
"everything was settled." May observed, however, that she
had been told that she had to pay up to $75 in fees and that
if she did not, it would be difficult for her to keep her job.
Cardenas asked May who had told her this, and May re-
sponded that the "other fellow" accompanying Cardenas
so
BARTENDERS, LOCAL 773
had informed her to this effect. Cardenas relsponded that
what had been said was not necessarily true.
Similarly, during the month of October, on separate oc-
casions, Roger Cardenas advised Kevin Grady and Her-
man Probusco, employees of Zim's. that they had to join
the Union in order to continue to work at Zim's. On a
further occasion, Steven Roosevelt, acting on this occasion
as an agent of Local 2, informed Probusco that he had to
join the Union in order to continue to work at Zim's."9
At approximately this point in time, Cardenas met with
Vix and informed Vix that new employees had to join the
Union in order to continue to work for Zim's. Vix stated
that the union-security clause had expired in August and
that membership in the Union was no longer required.20
(2) The "seizure" of Zim's Restaurants
(a) The October 18 incident
At approximately 11 p.m. on October 18, Joseph Bitton,
assistant manager at the Van Ness and Market facility of
Zim's, was informed by a waitress that some people were in
the kitchen, situated in the back. Bitton went to the kitchen
and observed Roger Cardenas and Miguel Contreras. a
business agent for Respondent. Cardenas and Contreras
had entered the restaurant through the back door, and Bit-
ton had not previously been aware of either their identity
or their presence in the kitchen. When Bitton entered the
kitchen and observed Cardenas and Contreras, he asked
who they were and how they had gotten into the kitchen.
Cardenas replied that they could come and go as they'
wished and do what they wanted to do in the restaurant.
Neither Contreras nor Cardenas identified himself at this
time. When Bitton entered the kitchen, five of the employ-
ees on duty had gathered around, and Bitton asked them to
return to work. The employees obeyed Bitton's directive.
They had been away from their work stations for approxi-
mately 5 minutes. Bitton learned the identity of Cardenas
and Contreras from one of the cooks. Cardenas and Contr-
eras remained in the restaurant for approximately 20 min-
utes, and while they were there, the security patrol arrived
on a routine check of the premises. Approximately 10 or 15
minutes later, Cardenas and Contreras left the restaurant
facility through the back door, by which they had entered.
Subsequently, Cardenas told Bitton that he would teach
him a lesson. The record does not establish that this was
said in the presence of employees.
i The foregoing is based upon the credited testimon, of ('hanning Ma\
I credit Roger ('ardenas only to the extent that his lestimon is conslstent
with these findings. I have considered MaN's testimons on cross-examina-
tion concerning the content of her pretrial affidaslit as it rela;lis to the initial
conversation with the unidentified union representative in earls October
have also considered the testimony of Roger ('ardenas to the effect thai he
may have had a conversation with ('hanning Ma>. and this concesmon.
considered in light of MaN's testimonial description of the individual vslth
whom she spoke in late October. warrants the finding. which I make, that it
was Roger (Cardenas to whom she spoke on the second occasion described
above and that the person who accompanied ('ardenas and who spoke to
May on the first occasion was acting in support of the iL mon and with its
aculescence.
The foregoing factual findings are based upon a tipulalotio of the p.ar-
ties
20 Keith Vix's credited testimony was not denied
(b) The October 31 incident
At approximately 11:45 a.m. on October 31. Phillip Ad-
ams, manager of the Powell and Sutter Street restaurant of
Zim's. was on duty in the restaurant. Approximately 100
customers were in the restaurant when approximately 30 or
40 individuals entered the restaurant and approached the
employees who were on duty. This included four or five
waitresses, two cooks, a cook trainee, and two dishwashers.
All of the employees left their duty stations upon being
advised by the individuals who had entered the restaurant
that a meeting was being held in the back of the restaurant.
Adams overheard these statements being made. The em-
ployees assembled in the banquet room in the restaurant
facility. and a brief meeting, of approximately 5 or 10 min-
utes' duration, resulted. Adams did not attend the meeting,
but, while it was in progress, he received complaints from
customers about the service. When the meeting ended, the
individuals who had entered the restaurant went outside of
the restaurant and commenced picketing. They walked in a
circle blocking the entrance to the restaurant while they
shouted, "Who's unfair? Zim's is unfair." Adams estimated
that 30 or 40 individuals walked on the picket line, and a
large group of prospective customers was deterred in enter-
ing the restaurant because of the assemblage. Miguel
Contreras and Steve Roosevelt were present during the ac-
tivity.
Later in the afternoon Bill Lovett, Zim's security guard.
came to the premises and, in the presence of Adams. spoke
with C'ardenas, who stated that the pickets would remain
until Zim's signed the GGRA contract. Adams asserted
that Zim's was no longer a member of GGRA, but Carde-
nas replied, "I don't care, Zim's is still going to sign the
contract." 21
(c) The November incident
In mid-November Bitton was working in his office, situ-
ated in the center of the building near the kitchen of the
Van Ness and Market Street restaurant. The door to this
windowless office was closed, but as he worked, Bitton
could hear noises of an unusual nature coming from the
kitchen. He opened the door to his office and stood at the
door, observing the kitchen area. He saw 3 employees and
12 to 17 other individuals whom he did not know. He also
saw Cardenas and Contreras, whom he recognized. As he
stood by the door to his office, he was partially surrounded
by approximately 15 individuals. Bitton had closed the
door to his office behind him, and the group of individuals
approached to within approximately 1 foot of him. He ob-
served Cardenas standing on a chair talking to the employ-
ees. Cardenas was approximately 3 feet from where Bitton
was standing. When Cardenas observed Bitton, he ad-
dressed him with an obscenity and said. "I tell you I'll
return, I'll be back, and here I am." The group of individ-
uals proximate to him then started moving in a circular
motion, and a heavy-set man known to Bitton only as
:' Ihe foregoing is based upon the credited testimony of Phillip Adams
aind William .Losel I do not credit the explanation and denials offered b
RovLer (rdenas. ho mpressed me, as I obsered him testify, as an indlsid-
1i ushorse rarlionlliled expl.anallons were totall unuaorth' of credit
BARTENDERS, LOCAL 2 3
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Don" struck Bitton in the stomach. Bitton could not extri-
cate himself, and the heavy-set man struck Bitton twice
more in the stomach. Finally. Bitton was able to work him-
self through the group and called the police. The group
remained in the kitchen area for approximately 20 minutes
making noises by clanging pots and pans and by shouting,
screaming, and swearing. Finally, they left through the
back door, and some of the individuals in the group, in-
cluding Contreras and Cardenas, resumed picketing out-
side of the restaurant.22
Conclusions
Having found that Zim's did not accomplish a timely
withdrawal from the associationwide unit and was bound
by the GGRA agreement containing a union-security
clause, it follows that Local 2 was free to invoke the union-
security provision of the collective-bargaining agreement
between GGRA and Local 2 which was in effect on and
after August 31, 1977. I discern nothing in the record
which would establish that agents of Local 2, in ap-
proaching employees Channing May, Kevin Grady., and/
or Herman Probusco uttered impermissible threats to their
job tenure. The comments which these agents of the Union
did make separately to the three employees were, in effect,
that unless they abided by the mandate of the union-secur-
it)y provision of the contract, they would lose their employ-
ment. Of course, the view which Zim's held of the matter
was that the collective-bargaining agreement was no longer
operative by reasons of Zim's' timely withdrawal from
GGRA. There is evidence of record to suggest that this
viewpoint had been conveyed to the employees to whom
agents of the Union spoke. However, the legal realities
which prevailed at the time of the instant conversations
established the viewpoint of Zim's management to have
been in error in this respect. Under this view of the record,
I find no violation of Section 8(bX2) and (I)(A) of the Act
following from these incidents. I shall dismiss the 8(b)(2)
allegation in its entirety.
In like manner, I find, contrary to the General Counsel,
that the record does not sustain the allegations of the com-
plaint averring a violation of Section 8(b)(l)(B) arising
from the picketing conducted by Local 2 at the premises of
Zim's. It is clear from the findings made above that the
underpinning for the General Counsel's theory in this re-
gard is eradicated by reason of the failure of Zim's to effect
a timely and valid withdrawal from the multiemployer
unit. Moreover, because of this failure, it follows that the
Union may not be found guilty of an 8(b)(3) violation aris-
ing from the picketing. These allegations are dismissed.
However, I find merit in the complaint allegations relat-
ing to the conduct of agents of the Union at the facility of
Zim's on October 18, late October. and mid-November.
The credited record evidence establishes an articulation of
22 The foregoing is hbased upon the credited testimony of Joseph illion. I
credit the lestimron? of Roger ('irdenas nly to he extent thai it is consis-
tent with the foregoing finding As I obser'sed ('ardenas testif, it the hea r-
ing before me, he impressed me as a vitness entirelk willing to tailor his
testimony to his perception of the interests of .ocal 2. I reject his testirnnoi,
insofar as it implies that the aclivitles in the kitchen area lf the restlauraint
were brief in duration and were not disruptive or nois).
threats to management representatives emanating from
Cardenas, as well as physical assaults upon managing
agents of Zim's, perpetrated in the presence of Cardenas
and other agents of the Union. Moreover, the entry upon
Zim's premises during business hours and in the presence
of employees by groups of individuals in the effective con-
trol of agents of Respondent, and in disregard of protest of
management personnel of Zim's, was calculated not only
to disrupt operations but also to serve as a show of strength
and a demonstration of apparent power to the employees
of Zim's, who stopped work at the behest of the Union,
thus risking termination. This conduct restrained or
coerced those employees in violation of Section 8(b)(l)(A).
See District 65, Retail, Wholesale and Department Store
Union, A FL C1O (I. Posner. Inc.), 133 N LRB 1555 (1961);
Local 140, United Furniture Workers of America, CIO, Alex
Sirota and Joaquin Pijuin A Ivares (Brook n Spring Corpora-
tion), 113 NLRB 815 (1955): District 65, Retail, Wholesale
& Department Store Union, A FL CIO (B. Brown Associates,
Int.), 157 NLRB 615 (1966); Communications Workers of
America, AFL-CIO (Ohio Consolidated Telephone Compa-
trj), 120 NLRB 684. 686 (1958).
IV tliE EFIE(A1 OF tlet tI:NIAR LABOR PRAC(II('ES UPON
('COMMER(.
The activities of Respondent set forth in section III,
above. occurring in connection with the operation of the
Company described in section , above, have a close, inti-
mate, and substantial relationship 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.
v IHE REMEDY
Having found that Respondent has committed certain
unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act, I will recommend that Respondent
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
CON( I.USIONS OF L AW
1. Zim's Restaurants, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Hotel and Restaurant Employees and Bartenders
Union, Local 2, Hotel and Restaurant Employees and Bar-
tenders International Union, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. At all times material herein, Golden Gate Restaurant
Association has been a voluntary association of restaurant
operators having authority to engage in multiemployer col-
lective-bargaining agreements with Respondent on behalf
of employers, including Zim's.
4. On April 18, 1977, and at all relevant subsequent
times, Golden Gate Restaurant Association was engaged in
collective bargaining with Respondent for a new master
agreement, and Zim's effort on April 18, 1977, and thereaf-
ter. to effectuate a withdrawal from multiemployer bar-
BARTENDERS. LOCAL 2 775
gaining was untimely and was not otherwise rendered le-
gally permissible, thereby binding Zim's to the results of
the collective bargaining in progress. including the collec-
tive-bargaining agreement consummated between Golden
Gate Restaurant Association and Respondent during the
last week of August 1977.
5. A single-emploer unit comprised of Zim's employees
did not constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act on April 18. 1977, or at an), relevant time thereaf-
ter.
6. Respondent did not engage in conduct in violation of
Section 8(b)(3) of the Act by refusing to engage in collec-
tive bargaining with Zim's on a single-employer basis at
any time relevant herein.
7. By the conduct of its agents in threatening managerial
personnel of Zim's in the presence of employees: b enter-
ing upon Zim's premises in groups in the presence of em-
ploxees and in disregard of protests of Zim's management.
in the manner and circumstances found: and in condoning
assaults upon management employees of Zim's perpetrated
in the presence of employees. Respondent violated Section
8(b)( 1 )(A) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
9. Respondent engaged in no unfair labor practices not
specifically found herein.
[Recommended Order omitted from publication.]
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