Dining and Kitchen Administration

National Labor Relations Board - Board Decisions

Jul 29, 1981

257 N.L.R.B. 325 (N.L.R.B. 1981)

DINING AND KITCHEN ADMINISTRATION
Dining and Kitchen Administration, d/b/a DAKA
and District 1199, National Union of Hospital
and Health Care Employees, a/w Retail, Whole-
sale, Department Store Union, AFL-CIO
International House and District 1199, National
Union of Hospital and Health Care Employees,
a/w Retail, Wholesale, Department Store
Union, AFL-CIO. Cases 2-CA-16685 and 2-
CA- 16691
July 29, 1981
DECISION AND ORDER
On February 18, 1981, Administrative Law
Judge James F. Morton issued the attached Deci-
sion in this proceeding. Thereafter, Respondent In-
ternational House filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
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, find-
ings' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondents, Dining and
Kitchen Administration, d/b/a DAKA, and Inter-
national House, New York, New York, their offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except the attached notice, Appendix A, is substi-
tuted for that of the Administrative Law Judge.
Respondent International House has excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Stand-
ard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing his findings.
2 In the absence of exceptions we adopt pro forma the Administrative
Law Judge's conclusion that Respondent International House had no
duty to bargain over its decision to terminate its contract with DAKA.
Chairman Fanning, who dissented in L. E. Davis d/b/a Holiday Inn of
Benton, 237 NLRB 1042 (1978), finds that case distinguishable on its facts
from the situation herein.
3 We have modified the Administrative Law Judge's notice. Appendix
A. to conform with his recommended Order.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT cancel any contract with any
firm engaged to operate our cafeteria in order
to terminate the employment of the individ-
uals, including residents of International
House, employed as full-time or regular part-
time employees there or otherwise discharge
any of our employees because they selected a
union to represent them or to compel a union
to forgo representing residents who are also
employees.
WE WILL NOT refuse to bargain collectively
with District 1199, National Union of Hospital
and Health Care Employees, a/w Retail,
Wholesale, Department Store Union, AFL-
CIO, as the exclusive representative of our em-
ployees, including residents of International
House, employed on a full-time or regular
part-time basis as kitchen or dining room em-
ployees in our cafeteria.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
ithe exercise of the rights guaranteed them
under the Act.
WE WILL offer full and immediate reinstate-
ment to all full-time and regular part-time em-
ployees employed as dining room and kitchen
employees at International House on or about
August 23, 1979, to their former jobs or, if
those jobs no longer exist, to substantially
equivalent positions without prejudice to their
seniority and other rights and privileges previ-
ously enjoyed, discharging, if necessary, em-
ployees hired as their replacements, and WE
257 NLRB No. 46
325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WILL make them whole for any loss of earn-
ings they may have suffered as a result of the
discrimination practiced against them, plus in-
terest.
WE WILL, upon request, bargain with the
above Union as the exclusive representative of
all the employees in the above unit concerning
their terms and conditions of employment and,
if an understanding is reached, embody it in a
signed contract if asked to do so.
WE WILL, upon request of the above Union,
cancel any changes from the rates of pay and
benefits that existed immediately before our
takeover of the cafeteria from DAKA and
make the employees in the above unit whole
by remitting all wages and benefits that would
have been paid absent such changes from
August 23, 1979, until we negotiate in good
faith with the Union to agreement or to im-
passe.
INTERNATIONAl. HOUSE
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge: On
August 27, 1979 (all dates hereafter refer to 1979, unless
noted otherwise), District 1199, National Union of Hos-
pital and Health Care Employees, a/w Retail, Wholesale,
Department Store Union, AFL-CIO (herein called the
Union), filed the unfair labor practice charge in Case 2-
CA-16685 against Dining and Kitchen Administration,
d/b/a DAKA (herein called DAKA). On August 28, the
Union filed the unfair labor practice charge in Case 2-
CA-16691 against International House (herein called
IH). Those unfair labor practice charges, as later amend-
ed, alleged that DAKA and IH each violated Section
8(a)(l), (3), and (5) of the National Labor Relations Act,
as amended. An order consolidating the two cases issued
on March 28, 1980, at which time a consolidated com-
plaint also issued against DAKA and IH. That complaint
was further amended at the hearing, held on September
2, 19, and 22, 1980. The respective answers, as amended
at the hearing, to the amended consolidated complaint
placed in issue the following matters:
1. Whether graduate students who reside at IH,' while
attending universities in New York City, are employees
as defined in the Act when they work on a part-time
basis in the cafeteria at IH managed by DAKA.
2. Whether IH and DAKA were the joint employer of
the employees who worked in the cafeteria at IH.
3. Whether IH terminated DAKA's contract to
manage that cafeteria because the employees there had
selected the Union as their collective-bargaining repre-
sentative.
I As is apparent. IH here refers to the residence hall itself and not to
Respondent H as a corporate entity Similar uses of the letters IH appear
throughout this Decision
4. Whether DAKA and IH refused to bargain collec-
tively with the Union by refusing to discuss the terms
and conditions of employment of IH residents who
worked in the cafeteria there under DAKA's manage-
ment.
5. Whether IH and DAKA each unlawfully failed to
execute a collective-bargaining agreement with the
Union covering the employees employed at the IH cafe-
teria.
6. If IH had an obligation to bargain collectively with
the Union as the representative of the cafeteria employ-
ees at IH, did IH unlawfully fail to give the Union an
opportunity to bargain as to IH's decision to terminate
DAKA's contract to manage that cafeteria.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after full considera-
tion of the briefs filed by counsel for the General Coun-
sel and by counsel for IH, I make the following:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The pleadings and related stipulations received at the
hearing establish, and I thus find, that DAKA and IH
are employers engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and that the
Union is a labor organization as defined in Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Summary of the Relevant Testimony and Exhibits
I. DAKA's operations
DAKA is a Massachusetts corporation which provides
food services for about 160 locations. It has a contract
with the Union covering its employees working in the
cafeteria at the Teacher's College in New York City, and
apparently another contract for employees employed by
DAKA in the cafeteria at the University of Bridgeport.
In 1974, DAKA took over the operation of the cafeteria
at IH from one of its competitors. The cafeteria employ-
ees at that location were unorganized and remained un-
organized until the Union became their certified repre-
sentative, in 1978, as discussed in more detail in a sepa-
rate section, infra.
2. IH's operations
IH was established in 1924 as a residence for 500 stu-
dents from around the world who attend graduate
schools in New York City. It is a nonprofit organization
dedicated to promoting international communications
and understanding, and is governed by a board of trust-
ees. Its president, Thomas F. Olson, is responsible for im-
plementing its policies. The interests of the residents are
represented by student trustees and a student council. IH
has 500 single rooms, music practicing rooms, a language
laboratory, a study room, a cafeteria, a game room, a
counseling service, a work placement service, a periodi-
cal lending service, a theater ticket service, laundry facil-
ities, a pub, and other facilities it deems necessary in
326
DINING AND KITCHEN ADMINISTRATION
making IH, in the language of its handbook for residents,
a valuable international learning experience. About 30
percent of the residents are U.S. citizens; 70 percent are
from foreign lands, who are in this country under stu-
dent visas.
IH has a selective admissions policy; its admissions
committee attempts to fill its rooms with "resident mem-
bers from different countries, diverse cultural back-
grounds and varied fields of study . . . (who) are willing
to share their time and talents to promote the goals" of
IH.
Each resident has a single room. The room rate varies
according to its location and other factors. IH sponsors a
work aid program, whereby residents can perform work
through the building to earn credits to offset the costs of
the room rate and the food plan. Such credits cannot
exceed in value the total of the room rate and food plan
costs. Olson, the president of IH, testified that, if IH per-
mitted a student to work excess credit hours, it would
have to compensate that student therefor by paying him
the equivalent in money. That process would also re-
quire a foreign student to obtain a work authorization
permit from the U.S. Immigration and Naturalization
Service. Presumably, IH would have to deduct from the
excess earnings of its residents the applicable income and
other tax deductions, and remit those deducted amounts
to the appropriate tax authorities.
The rate at which a resident accumulates credits is set
by IH. For residents who work in the cafeteria, the rate
applicable as of May 1979 was $2.65 hourly.
Cafeteria prices are subsidized. As a result, the resi-
dents pay only half cost for food and beverage.
IH has a collective-bargaining agreement with another
labor organization, National Organization of Industrial
Trade Unions, which represents, inter alia, housekeepers.
Residents of IH who perform the same type of work
covered by that contract are expressly excluded from the
unit described therein.
3. DAKA's relationship to IH
As noted above, DAKA took over the management of
the cafeteria at IH when it contracted with IH in 1974 to
do so. As of the academic year 1978-79, DAKA had an
agreement with IH to operate the cafeteria essentially at
cost, plus a management fee of 3 percent of gross sales.
IH, of course, furnished the equipment and provided re-
lated services-heating, lighting, and so on. The menus,
hours, service, and food service schedules were mutually
agreed upon by DAKA and IH. DAKA also submitted
to IH, prior to the start of the 1978-79 academic year, a
proposed budget covering its projected labor costs,
which IH underwrote. IH approved that budget. Under
it, IH agreed to pay any labor costs incurred by DAKA
in excess of that budget, provided that DAKA could jus-
tify the excess.
DAKA's corporate policy is to keep its clients fully in-
formed of all significant developments. Before it hired
the individual who managed the IH cafeteria in 1978-79,
DAKA sent him and two other individuals to IH for in-
terviews with its then executive vice president, Olson.
Olson had no objection to DAKA's selecting any one of
them.
DAKA's manager and his assistants, in operating the
IH cafeteria in 1978-79, hired all employees, supervised
them, supplied the food and beverages, and otherwise
managed the cafeteria operations on a day-to-day basis.
Whenever there was a job vacancy, DAKA's manager
checked first with IH to find out whether IH wanted the
vacancy filled by a resident or a nonresident. IH main-
tained a job referral service for its residents whereby
they could be sent to, inter alia, the DAKA cafeteria
manager for job interviews. In 1978-79, DAKA had
about 10 full-time employees and 2 regular part-time em-
ployees on its payroll; those so employed were not resi-
dents of IH. In addition, DAKA had hired about 12 resi-
dents of IH. The residents performed the same work as
did the nonresidents. Thus, residents and nonresidents
both performed the duties encompassed within the jobs
classified by DAKA as general utility workers and as
food service workers II1. Only the nonresidents were on
DAKA's payroll. The residents were not given any
fringe benefits, while the nonresidents were covered by
DAKA for life insurance and medical insurance, and
were given vacations, holidays, and other benefits. The
only record DAKA kept as to the work performed by
the residents of IH was a weekly accounting of the hours
they each worked. That record was turned over weekly
to IH so that IH could give those residents appropriate
credits toward their room and board.
DAKA maintained personnel files only for nonresi-
dents. It alone made the decision to discharge any non-
resident. The termination of a resident's employment
status in the cafeteria required agreement between
DAKA and IH. In practice, this usually meant that IH
notified DAKA that a particular resident had reached
the maximum allowable credit and, on that basis, DAKA
discharged him.
The parties adduced considerable evidence as to the
accounting methods pertaining to the hours worked by
the residents of IH. In essence, IH applied an hourly rate
to the work done by the residents, as reported by
DAKA, and sent DAKA a monthly invoice for the total
value of such work. The sum as shown on that invoice
was deducted from the amount to be paid DAKA by IH
under the labor budget for each respective month. IH
paid DAKA the balance due.
From outward appearances in 1978-79, there was no
way a first time visitor to the IH cafeteria could tell that
the cafeteria was being operated by someone other than
IH. DAKA's name was not publicized. It did appear on
the usual workmen's compensation notices and the like
but those were not readily seen by a visitor.
4. The representation case
On September 6, 1978, the Union filed a petition with
the Regional Office of the Board for an election among
the "service and maintenance employees" employed by
DAKA at the IH cafeteria. The Union's estimate of the
size of that unit was 10 employees. It did not name IH in
that petition.
The petition was docketed as Case 2-RC-18100. On
September 11, 1978, a notice of hearing issued in that
case and a copy of it was served on DAKA. An order
327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued rescheduling the hearing 3 days later; a copy of
that order, together with a copy of the petition, was
served by registered mail on IH that same day. On Sep-
tember 20, 1978, the hearing in that case opened. No one
entered an appearance on the record for IH. A lawyer
from Australia who was with a New York law firm, ap-
parently on a visiting basis, attended that hearing as an
observer for IH. On the second day of that hearing, that
lawyer entered an appearance for IH on the record, but
did not otherwise participate in the hearing. IH's presi-
dent, Olson, came to the second day of the hearing.
DAKA contended in that proceeding, inter alia, that
the approximately 12 residents of IH who were working
under DAKA's supervision at the IH cafeteria should be
included in any unit found appropriate. The Union
sought to exclude those residents from the unit on the
ground that they lacked a sufficient community of inter-
est with the nonresident employees of DAKA, particu-
larly as the nonresidents were on DAKA's payroll and
received numerous fringe benefits and as the residents
were not on DAKA's payroll and enjoyed no fringe
benefits. The record in the instant case contains testimo-
ny respecting the reason DAKA had sought then to in-
clude the IH residents in the unit of cafeteria employees.
DAKA's vice president of personnel, Allen Maxwell,
testified that the position advocated then by DAKA was
taken with the "blessing" of IH's president, Olson. Max-
well could not recall the specifics of his conversations
with Olson respecting that subject but, in substance, he
and Olson were of the view that the inclusion of the resi-
dents in the unit in Case 2-RC-18100 would help
DAKA "win the election." Olson did not participate in
the discussions among DAKA's attorneys, the Union's
representative, and the Board agent respecting the differ-
ent unit positions. Olson did not testify at that hearing.
He did testify in the instant case. His testimony was that
he had come to the representation case hearing in 1978
at the request of either DAKA or the Board agent and
that he sat in the back of a room while the Union and
DAKA argued about which individuals should be per-
mitted to vote in an election. Olson testified that DAKA
"had proposed to include the students in the unit" as
DAKA thought that the students (i.e.-the residents at
IH who worked in the cafeteria then) "would support"
DAKA's position. Olson testified that DAKA's vice
president asked him then what he thought about that
strategy and that he, Olson, responded that the strategy
"sounds pretty clever . . . [and that] the students would
vote against the Union." 2
2 In its brief, IH stated that Olson was unwittingly pulled into the
horsetrading that occurs when parties are discussing a unit issue. As that
comment bears on motive, one of the material issues in this case, it is in-
cumbent on me to accept or reject that comment. I reject it. Olson is a
highly perceptive individual and has to be conscious of one of IH's ex-
press goals which, as it has stated, is "to provide the broadest opportuni-
ties to foreign students to experience the many facets of American life
and give them a deeper understanding of the United States." I can think
of no more significant way for a foreign student to experience a facet of
life in this country than to participate in a secret-ballot election conduct-
ed under American laws. Olson may not have consciously taken that con-
sideration into account when he agreed that the residents should be in-
cluded in the unit then, but he certainly did not make that judgment in-
differently. I note also, in that regard, that IH had a lawyer present for 2
days of hearing then where the principal concern was whether those resi-
The transcript of the representation case discloses that
a great deal of testimony had been taken as to the issue
of the unit placement of the residents and also as to the
alleged supervisory status of a nonresident. During the
second day of that hearing, DAKA and the Union
reached an agreement to hold an election at which ap-
proximately 22 individuals, including about 10 residents
would vote. DAKA and the Union signed an agreement
for consent election, which provided for an election to
be held on October 26, 1978, among all full-time and reg-
ular part-time kitchen and dining room employees em-
ployed by DAKA at its facility at IH. (The parties stipu-
lated at the hearing in the instant case that the unit as so
described is appropriate for purposes of collective bar-
gaining; DAKA and IH of course assert that residents
must be excluded from that unit whereas the General
Counsel and the Union assert that the residents were
always properly included in that unit description.) The
agreement in Case 2-RC-18100 did not specifically refer
to the residents. There was no document offered in evi-
dence directly stating that DAKA and the Union had, in
1978, agreed to include the residents in that unit. Never-
theless, the uncontroverted testimony establishes that the
Union gave in to DAKA's insistence then that the resi-
dents must participate in the election and the list of the
names and addresses of the eligible voters, furnished by
DAKA, discloses that 10 residents were identified by
DAKA thereon.
At the election held on October 26, 1978, a majority
of the votes cast were for representation by the Union.
The tally of ballots was not placed in evidence. On No-
vember 3, 1978, the Union was certified as the exclusive
representative of the unit employees for purposes of col-
lective bargaining with DAKA.
5. The negotiations between the Union and DAKA
After the Union was certified and prior to the start of
the negotiations, DAKA and IH met to consider their
respective views. DAKA's vice president of personnel,
Allen Maxwell, testified that IH's president, Olson, made
it clear to him that the residents could not be included in
any group of cafeteria employees covered by a collec-
tive-bargaining agreement. Olson did not deny this. Both
Maxwell and Olson testified, in essence, that IH in-
formed DAKA, before it began negotiations with the
Union, that IH was amenable to paying DAKA up to a
7-percent increase in its labor budget to cover the cost of
wage rate raises and additional benefits that may be se-
cured for the cafeteria employees as a result of those ne-
gotiations. Maxwell further testified that Olson had asked
to be kept abreast of all developments in the negotiations
and that Olson had also indicated to him that it would be
to IH's advantage for DAKA to delay any strike action
by the Union until the summer when there are fewer
graduate students in residence. In his prehearing affida-
vit, Maxwell stated that Olson directly urged him to stall
the negotiations until the end of the academic year.
dents should vote. Olson did not act unwittingly but acted with delibera-
tion.
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DINING AND KITCHEN ADMINISTRATION
In December 1978, the Union served its bargaining de-
mands on DAKA; it did not serve any on IH nor did it
ask to meet with IH.
The principal negotiator for DAKA was Maxwell; the
principal one for the Union was one of its vice presi-
dents, Telbert King. King testified that, at the first ses-
sion in December 1978, Maxwell told him that IH had
instructed him that under no circumstances were the
residents to be included in the cafeteria unit and that
DAKA could not go beyond 7 percent of its labor
budget in the negotiations. King testified that he told
Maxwell that he did not understand the reversal in posi-
tion-referring to the fact that, during the representation
case hearing, DAKA had fought to include the residents
in the unit with the "blessing" of Olson. King testified
that he told Maxwell that he did not think that the
Union could legally negotiate the residents out of the
unit after they had voted in the election. Maxwell testi-
fied but did not deny making the statements that King
attributed to him. Maxwell stated that IH had not limited
DAKA to a 7-percent increment in labor costs, although
he did tell King that it had. Maxwell explained that
DAKA could agree to pay more but he chose at the
outset to put the onus on IH as a bargaining ploy. Max-
well did not testify that IH had given him any leeway
respecting the unit placement of the residents; his testi-
mony in essence corroborates King's that IH was ada-
mant that the residents were not to be included in the
unit, notwithstanding the fact that they had voted in the
election. At the first negotiating session, Maxwell in-
formed King that DAKA would review the Union's de-
mands and get back to it. Upon the conclusion of the ses-
sion, Maxwell informed Olson as to what had transpired
at it.
Maxwell and King met again in January 1979 and
agreed then to place the matter of the unit placement of
the residents on the "back burner." They discussed the
economic and the noneconomic terms of a contract at
meetings held between January and May 1979. At the
end of those meetings, Olson was advised of all signifi-
cant developments. By late May, they had reached
agreement on all such terms and attempted to resolve the
issue of the residents' unit placement by discussing for-
mulas applicable to part-time employees, apparently, in
an effort to devise a basis whereby the residents might be
excluded as casual employees while those nonresidents
who worked on a part-time basis would be included as
regular employees. Their efforts were not successful as it
appears that some of the residents worked on a regular
basis. King asked Maxwell if DAKA had any objection
to the Union's meeting directly with Olson to discuss the
unit placement of the residents. Maxwell had none and
arrangements for such a meeting were made.
On June 4, Olson and an attorney for IH, Albert R.
Galik, went to the Union's office where they met with
Telbert King and with Rubin Fort,3 an organizer for the
Union. King testified that, at that meeting, he told Olson
and Galik that Maxwell had taken the position through-
out the contract negotiations that IH had issued instruc-
' Fort signed the agreement for consent election in Case 2-RC-18100
discussed above. Counsel for the General Counsel stated that Fort is no
longer in the Union's employ.
tions to DAKA that the residents could not be included
in the unit. King testified also that he told Olson and
Galik that it was not fair for IH to take that position as
Olson had been present at the second day of the repre-
sentation case hearing when the Union withdrew its ob-
jections to DAKA's efforts to include the residents in the
unit. King testified that Galik responded to his remarks
by saying that IH does not want the residents in the unit
because they are not employees "in the context of the
Board," because they are not on DAKA's payroll; be-
cause they have a special arrangement because of their
status; because they do not have work permits; and be-
cause, when they work in the cafeteria, "there's no
money subtracted from their board-however it is that
they work it out." (The last quote obviously is a refer-
ence to the system whereby credit is given toward a resi-
dent's room rental and his food plan costs for the value
of the hours he has worked in the cafeteria.) King testi-
fied that Galik raised the possibility of resolving the
matter via a unit clarification petition with the Board or
via arbitration and, on the hope that DAKA and the
Union may be able to reach an agreement as to such an
approach, the meeting ended, according to King. Fort,
the union organizer, was not present at the hearing, and
thus did not testify.
Olson gave the following testimony as to that meeting.
He said that the Union wanted to meet with him to un-
derstand how IH's work aid program functioned, i.e.-
how the residents are referred to work by IH in the cafe-
teria and how they receive credits for the hours they
work there. At the meeting itself, IH's attorney Galik
began the discussion by stating that he was there with
Olson solely to answer the Union's questions about the
work aid program. King agreed and then told Galik that
the Union was having a problem in negotiating with
DAKA about the students who were working in the
cafeteria and that the problem seems to have boiled
down to a question as to how to calculate the number of
hours they could work. At some point in the conversa-
tion, Galik asked the Union why it did not go to the
Board to obtain a clarification of the unit. King, in re-
sponse, said that one of the problems is that the Union
had agreed to have the residents take part in the election
and that the Union may be accused of not properly rep-
resenting them if they were not included in the contract.
Olson continued his account by saying that King also
said something to the effect that the Union may have to
go to the Labor Board, and that Galik told him that that
decision was up to him. Olson was asked at the hearing
if it was not correct that, at that meeting, IH was not
willing to have the residents included in the unit. Olson
did not answer that question. Instead he first asked what
did counsel for the General Counsel mean when he
asked that question; Olson next stated that IH had noth-
ing to do with whether the students were included or
were excluded. Galik, one of IH's attorneys at the hear-
ing, did not testify.
There is really no credibility issue to resolve because
Olson did not deny that King had related what Maxwell
had stated was IH's position as to the unit placement of
the residents or that Galik had then stated the reasons
329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
why IH took that position. By inference, however, Olson
may have contested the veracity of King's account as
Olson observed, in a conclusionary way, that IH had
nothing to do with the unit placement of the residents. In
any event, I have to credit or discredit King's account,
regardless of whether it is controverted as the General
Counsel proffered that testimony. I credit King's ac-
count. I note that, during his cross-examination, King
was asked in a complex manner about that meeting, and
he clarified the question and responded to it by testifying
substantially the same as he had during his direct exami-
nation. Further, King's account is consistent with Max-
well's testimony as to the reason why the Union sought
out a meeting with IH and with the undisputed testimo-
ny respecting the position taken by IH, at the outset of
the bargaining, respecting the exclusion of the residents
from the unit. I also note that Galik did not challenge
King's account.
On June 6, the representatives of the Union and
DAKA met. The testimony of their respective vice
presidents, King and Maxwell, establishes that they had
then reached complete accord on all terms and condi-
tions of a 2-year collective-bargaining agreement for a
unit of all full-time and regular part-time kitchen and
dining room employees employed by DAKA at the IH
cafeteria. They also had reached an understanding that
the unit placement of the residents would be arbitrated.
King testified that, in later communications between the
Union's attorney with DAKA's attorney, some confusion
existed as to whether the contract would include lan-
guage pertaining to the agreement to arbitrate. It appears
that while those attorneys were pursuing that matter, IH
was considering the matter of terminating DAKA's con-
tract to manage its cafeteria, as discussed below.
6. The termination of DAKA's contract by IH
The testimony of IH's president, Olson, indicates that
in early 1979, when food costs were increasing because
of inflation, DAKA's explanations as to how the in-
creases were calculated by it were not satisfactory. IH
ultimately is responsible for those costs. Olson testified
further that he was not satisfied either with DAKA's
menus as he felt that they should include more ethnic
dishes. No evidence was submitted that DAKA was di-
rectly made aware of these areas of dissatisfaction. Olson
also testified that DAKA seemed unable to keep obvious
costs down; and in that regard referred to DAKA's
practice of charging the same price for a cup of coffee as
it did for a container of coffee; and to the fact that the
residents usually selected the container as it contained
more coffee and to the further fact that DAKA incurred
extra expenses in buying the containers whereas the cups
would only have to be washed. Olson said, as a result of
that one item alone, IH paid DAKA for more coffee and
more containers. Olson testified that he was also dissatis-
fied with the fact that, during the summertime, DAKA's
costs were not underwritten by IH and that DAKA op-
erated on a profit basis, which resulted in its tripling its
prices compared to those charged during the academic
year. Olson explained that this was a big problem as
more and more students were in residence at IH each
summer.
Based on these areas with which he was dissatisfied,
Olson testified he undertook a feasibility study as to
whether to terminate DAKA's contract and then advised
the IH board of trustees in June 1979 that he would ter-
minate DAKA's contract if he was dissatisfied with its
budget for the academic year 1979-80. No documentary
evidence was proffered to corroborate that such a study
was done or that Olson had so met with his board of
trustees.
On July 23, 1979, Olson met with DAKA's president,
Terry Vince, to review Daka's proposed budget for the
cafeteria operations in the 1979-80 academic year.
DAKA's president, Vince, testified that when he finished
presenting the budget to Olson, Olson paused and asked
him how he would feel if IH did not renew its contract
with DAKA; DAKA's president said he told Olson he
was "frankly relieved." Vince asked why IH was not re-
newing the contract and Olson told him that IH "could
do it cheaper," and that it was not the quality or service.
Vince testified that Olson told him then that IH would
only keep one DAKA employee. Olson, in testifying did
not deny this; he testified that he never told Vince that
IH did not want to hire any of DAKA's employees. If
there is a conflict in their accounts, I credit Vince's. In
that regard, as noted below, IH in fact hired only one of
DAKA's employees to start the IH operation.
Later that day, July 23, Olson sent DAKA a letter
giving it notice under the cafeteria contract that
DAKA's services were to be terminated on August 23.
At about this same time, late July, DAKA gave the
Union notice that IH had canceled its contract with
DAKA, effective late August.
7. The requests to sign the collective-bargaining
agreement
Shortly after the Union was informed that DAKA's
contract was canceled, the Union demanded that DAKA
sign a collective-bargaining agreement containing the
terms previously agreed on, as discussed above. DAKA's
vice president, Maxwell, testified that he told the Union's
executive vice president that DAKA would not sign any
agreement for the IH cafeteria unit.
The Union never sent a written contract4 to DAKA to
sign; it never asked IH to sign any collective-bargaining
agreement, nor did it send any to IH.
8. The takeover of the cafeteria by IH
On August 23, 1979, DAKA's contract with IH ex-
pired. IH hired only one of the DAKA employees.
DAKA offered employment to the others at its other lo-
cations, and some accepted.
' A contract was received in evidence at the hearing after the Union's
vice president, Telbert King, identified it as the one drawn up by the
Union's contract department from bargaining votes he had furnished to
that department. Many of the clauses are set out on forms. Although the
contract in evidence refers to an annexed stipulation containing the
agreed-upon wage rates, no stipulation was appended. Also, the testimo-
ny indicated that the form of the union-security clause would have to be
changed because the contract was retroactive to January I, 1980, to
allow for the requisite 30-day grace period.
330
DINING AND KITCHEN ADMINISTRATION
IH spent about $15,000 to paint and otherwise refur-
bish the cafeteria. It closed down the cafeteria on August
23 for a 2-week period for this purpose. IH has operated
the cafeteria since then. No documentary evidence was
proffered respecting the statement Olson had made to
DAKA's president in July that IH could operate the
cafeteria "cheaper" than DAKA did. Olson testified that
IH does not triple cafeteria prices in the summertime.
Apparently, this is so because it operates on a nonprofit
basis whereas DAKA's operations in the summer had not
been subsidized. Also, Olson testified that IH did not
reduce prices substantially but did put into effect selec-
tive price reductions. He also testified that IH has been
able to keep those reduced prices in effect on a year-
round basis, unlike the system followed under the ar-
rangement it had with DAKA, when prices increased
threefold during the summer months.
At some point shortly after IH took over the manage-
ment of its cafeteria, it hired two nonresidents who had
once been in DAKA's employ there. The parties stipulat-
ed that one individual who had been employed by IH
from 1952-64 (the last 7 of those years in its cafeteria)
and who has been employed in the cafeteria there from
1964-79 by catering firms under contract to IH, includ-
ing of course DAKA, was not offered employment by
IH in August 1979.
B. Analysis
I. Whether residents are employees as defined in
the Act
IH's attorney had taken the position, when meeting
with the Union on June 4, 1979, that residents were not
employees within the context of the Act. It may be that
he was alluding them solely to the fact that most of the
residents were in this country on student visas and appar-
ently are not required by the Immigration and Natural-
ization Service to obtain work permits while working in
the IH cafeteria to earn credits to offset the costs of their
room and board. In the brief it filed, IH makes clear now
that it does not in any way rely on the status of any resi-
dent as aliens with respect to its defense in this case.
Still, it has not conceded that these "student workers," as
it terms them, are employees entitled to the protection of
the Act.
The record is clear that the residents, when working
in the cafeteria at IH in 1978-79, were supervised by the
same persons in DAKA's employ as were the nonresi-
dents on DAKA's payroll and that they performed sub-
stantially the same work. Further, it appears that the
residents worked with regularity in the cafeteria, as
DAKA and the Union had failed, despite repeated ef-
forts, to establish a formula for regular part-time employ-
ees, which would exclude the residents while including
the nonresident part-time employees.
The case law is clear that an individual who works in
a capacity unrelated to his studies is an employee as de-
fined in the Act.' The unit placement of such an employ-
System Auto Park d Garage. Inc., 248 NLRB 948 (1980); Children's
Hospital of Pittsburgh, 222 NLRB 588 (1976): Dorance J. Benzschawel and
Terence D. Swingen Co-Parners d/b/a Parkwood IGA Foodliner, 210
NLRB 349 (1974). Cf. Cornell University, 202 NLRB 290 (1973).
ee, vis-a-vis non-student employees, is another matter to
be considered, 6 as is the joint-employer issue. As there is
no contention that the work performed by the residents
under DAKA's supervision in the IH cafeteria in 1978-
79 had any relationship, other than incidental in nature,
to the educational programs those residents were pursu-
ing in their graduate studies or to the cultural programs
offered at IH itself and in view of the duties they per-
formed for DAKA, I find that the residents working in
the cafeteria then were employees as defined in the Act.
2. The joint-employer issue
The Board has noted that it looks to four principal fac-
tors in determining whether two arguably separate em-
ployers will be treated as a joint employer, these factors
are: (I) interrelation of operations, (2) centralized control
of labor relations, (3) common management, and (4)
common ownership or financial control; and that, while
no individual factor is controlling, emphasis is placed on
the first three factors, particularly centralized control of
labor relations.'
As to the first factor, it is obvious that the operation of
the cafeteria by DAKA was being done in furtherance of
one of the basic reasons for IH's existence, i.e.-to pro-
vide reasonably priced food to foreign graduate students
in a place where they would enjoy the companionship of
other graduate students, including U.S. citizens. The
physical location of the cafeteria itself, i.e.-inside the IH
building, accentuates that purpose. The fact that the
equipment (refrigeration, cleaning, lighting, tableware)
was owned and furnished by IH also demonstrates that
the operations of DAKA and IH were then inextricably
intertwined.
Respecting the element of common management, the
record in this case discloses that IH did not simply write
out checks at regular intervals in payment of the services
rendered by DAKA. Instead, DAKA operated on a cost
reimbursement basis. IH reviewed DAKA's budget in
great detail and required DAKA to explain the basis for
cost overruns. IH approved the menus, prices, hours,
service and schedules of food service, and screened ap-
plicants for the position of manager for DAKA of the
cafeteria.
As to control of labor relations, there are the follow-
ing considerations. IH made the decision, whenever
there was a job vacancy in the cafeteria, as to whether
DAKA would hire a resident or a nonresident; IH set
the wage rates of the residents and referred those resi-
dents to DAKA for employment; IH required DAKA to
terminate the employment of a resident when the resi-
dent had earned credits equal in value to the cost of his
room and board; IH approved DAKA's strategy in the
representation case to press for the inclusion of the resi-
dents in the unit of eligible voters; IH directed DAKA
to refrain from negotiating with the Union respecting
those residents, after the Union won the election, and
DAKA complied fully with that directive; IH met with
6 Compare Pawating Hospital Association, 222 NLRB 672 (1976), with
Parkwood IGA Foodliner. supra.
L. E. Davis. d/b/a Holiday Inn of Benton, 237 NLRB 1042. 1044
(1978), and cases cited therein
331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union to explain the reasons for that directive; and
throughout the negotiations IH and DAKA reviewed, in
detail, all the strategy for bargaining.
There is no evidence that IH has any proprietary in-
terest in DAKA.
I conclude that in 1978-79 the DAKA cafeteria oper-
ations at IH were part of an integrated enterprise being
offered by IH to graduate students on a nonprofit basis
as IH exercised substantial control over significant ele-
ments of DAKA's labor relations policies, as the DAKA
operations were so closely integrated with IH's facilities
purposes and functions, and as there was evidence also
that IH possessed managerial authority over the operat-
ing budget of DAKA and in other significant areas, in-
cluding the menu for each day. On those premises, IH
and DAKA were a joint employer for purposes of the
Act.
3. The reason for IH's cancellation of its contract
with DAKA
The General Counsel contends that IH terminated
DAKA's management contract to avoid having to deal
with the Union and because the cafeteria employees had
selected the Union as their bargaining representative. IH
asserts that its decision to end its relationship with
DAKA was based solely on economic considerations.
There is no question but that IH had sought to keep
the Union out of the cafeteria and, having failed in that
regard, that it prevented DAKA from negotiating a con-
tract with the Union for all the unit employees. IH itself
had sought in June 1979 to persuade the Union to agree
to exclude the residents from the contractual unit, but
again its effort failed. All indications, then, were that IH
would have to look forward to litigating the issue and,
incidentally, having testimony presented respecting the
abrupt reversal of its position as to the inclusion of the
residents in the unit. It was about this same time, accord-
ing to IH's president, he advised the IH board of trustees
that he intended to cancel DAKA's contract if he was
not satisfied with its proposed budget for 1979-80. I note
also that Maxwell, DAKA's vice president, and Olson,
IH's president had for the preceding 6 months consulted
closely with each other respecting the bargaining devel-
opments and that they discussed any matter deemed sig-
nificant involving the operation of the cafeteria. Maxwell
offered no testimony that Olson had at any time ex-
pressed dissatisfaction with the way in which DAKA
had operated the cafeteria or that Olson had discussed
with him ways in which the cafeteria could be operated
more efficiently. I note also that DAKA's president testi-
fied that he had been surprised to learn, right after he
completed his detailed presentation of the 1979-80
budget, that DAKA's contract would be canceled; that
he was told then by Olson that IH could operate the
cafeteria "cheaper"; and that IH would employ only one
of DAKA's employees. Olson testified that he did not
recall that DAKA's president presented the proposed
budget and that he, Olson, announced his decision then
' Kenner Products Division. CPG Products Corporation. and Jeannine
Robbins, d/b/a Schnabels Driversfor Lease. 249 NLRB 1164 (1980); Philip
David Sachs and Michael Sachs. A Partnership. d/b/a Phil's Sav-Marr Serv-
ice. Peko Ltd. Sav.Co. Inc.. d/b/a Sav-Mart. 199 NLRB 835 (1972).
to terminate DAKA's contract. I note also that Olson
testified that IH did not reduce substantially the cost of
operating the cafeteria but that it had introduced selec-
tive price reductions, e.g., yogurt, tea, and some other
items. No documentary evidence was offered to corrobo-
rate Olson's statement to DAKA's president that IH
could operate the cafeteria for less money. Olson said he
had made studies; records of none of those studies were
submitted in evidence. For that matter, there was no
offer by IH of the minutes of the IH board of trustees
meeting in June at which, according to Olson, he ad-
vised the board of his decision to terminate DAKA's
contract. There was no documentation or explanation as
to why Olson had advised DAKA's president that IH
would employ only one of the unit employees of
DAKA.
In view of the adamant position of IH that the Union
surrender its right to represent the residents employed in
the cafeteria, the Union's refusal to accommodate IH
thereon, the failure of IH to establish that it could oper-
ate the cafeteria "cheaper" than DAKA can; the conces-
sion by IH that it does not claim that it has reduced the
cafeteria operating costs in any substantial manner al-
though it had summarily rejected Daka's detailed budget
proposals purportedly for that reason, and the unex-
plained decision of IH to hire only one of the unit em-
ployees-all of these considerations warrant a strong in-
ference that IH's decision to terminate DAKA's contract
was based on the Union's refusal to give in to IH's insist-
ence that it disclaim the right to represent the residents
who worked in the cafeteria. In that regard, the Board
has observed that an employer's method of hiring em-
ployees for a restaurant it took over from a company
which had a contract with a union can give rise to an
inference that its real reason for not hiring the employees
covered by that union contract was their union affili-
ation.9 The unexplained hiring of only one unit employee
by IH indicates to me that it did not want to inherit
DAKA's bargaining obligation by offering employment
to experienced workers who were apparently performing
most satisfactorily. As the General Counsel has, in my
judgment, established a prima facie case, IH had the
burden of showing that it would have terminated
DAKA's contract for economic reasons, regardless. '°
In its brief, IH urges that it has met this burden. In
that regard, it observes that IH has a contract with an-
other union, the National Organization of Industrial
Trade Unions, covering IH housekeepers and its other
employees. I note that that contract excludes residents
from its coverage. IH also relies on the record testimony
that it has hired "some" former DAKA employees to
rebut the inference that its action was discriminatorily
motivated. I believe that none of those considerations es-
tablishes that IH would have terminated DAKA's con-
tract anyway. Those considerations bear upon my previ-
ous determination that the General Counsel has made out
a prima facie case of discriminatory motivation and I do
not see that they require me to reverse that finding. I
I Karl Kallmann d/b/a Love's Barbeque Restaurant No. 62: Love's Enter-
prises. Inc., 245 NLRB 78 (1979).
'o Wright Line. a Division of Wright Line. Inc., 251 NLRB 1083 (1980).
332
DINING AND KITCHEN ADMINISTRATION
have noted that IH advised DAKA that, upon taking
over the cafeteria, it intended to hire but one of the unit
employees then on DAKA's payroll. In fact, IH did hire
only one then. I note also that one of the remainder it
did not hire was a man who first began work at IH in
1952, who worked directly for IH from 1957-68 in the
cafeteria, and who continued to work there until 1979,
under various institutional operators, including DAKA.
The record testimony does establish that IH has since
hired two former DAKA employees, but it appears that
they were not on DAKA's payroll at the time IH took
over the cafeteria operations and also that they were
hired by IH at some point after IH had hired the initial
employee complement.
I find that IH has not shown that it canceled the
DAKA contract for economic reasons. Thus, I conclude
that IH canceled that contract because the Union did not
abandon the residents employed in the cafeteria.
4. Alleged refusal to bargain collectively
The pleadings, as amended at the hearing, form three
issues for resolution which pertain to alleged refusals of
DAKA and IH to bargain collectively. First, it is con-
tended by the General Counsel that the insistence that
the Union exclude the residents constituted an unlawful
refusal to bargain. Secondly, it is contended that a con-
tract was in fact negotiated and that both DAKA and IH
have unlawfully refused to sign it. Thirdly, it is asserted
that IH unlawfully failed to give the Union a meaningful
opportunity to bargain respecting the decision to cancel
DAKA's contract.
Some of the defenses raised by IH to these contentions
have already been disposed of. Thus, IH's assertions that
the residents are not employees under the Act and that it
is not a joint employer with DAKA have been found to
lack merit. IH, however, also contends that it had no
bargaining obligation to the Union as it, IH, was not a
party to the representation proceeding, that it had no ob-
ligation to sign any contract with the Union as the Union
never asked it to sign one and as the evidence fails to
demonstrate that agreement had been reached as to all
the terms of a contract for the cafeteria employees, and
that IH was not required to discuss the feasibility of can-
celing DAKA's contract as IH had assumed a new busi-
ness venture.
The Board has held that a joint employer has an obli-
gation to bargain with a union which was certified to
represent the employees employed by the joint venture,
notwithstanding that that joint employer was not a party
to the underlying representation proceeding. 11 On that
basis, I must reject IH's first defense. Moreover, IH did
enter an appearance in Case 2-RC-18100 and its presi-
dent, as discussed above, approved the contention urged
by DAKA then as to the unit placement of the residents
then. To hold now that IH can still rely on the fact that
no formal amendment was ever made to add its name as
a joint employer in that representation proceeding would
emphasize form over substance. I find that IH and
DAKA refused to bargain collectively with the Union
by insisting that there could be no negotiations for the
" Mobil Oil Corporation, 219 NLRB 511 (1975).
residents employed in the cafeteria. As DAKA had
agreed, with the "blessing" of IH to include the residents
in the unit and as no policy of the Act was contravened
thereby, 2 the residents were properly in the unit for
which the Union was certified.
I find merit in IH's contention that it did not refuse to
sign a contract with the Union as the evidence is clear
that it was never asked to do so. I find also that there
was no agreement reached respecting the unit employees
as DAKA and the Union had agreed to withhold negoti-
ating, as to the special concerns of the residents, until IH
withdrew its objections to the inclusion of the residents
in the overall unit. Further and as noted earlier, the
agreement, prepared by the Union's contract department
based on the notes of its vice president who handled the
negotiations with DAKA, contains a union-security
clause admittedly invalid on its face. The General Coun-
sel asserts that that clause must be corrected. It is the
Board's function in appropriate cases to order parties to
cease giving effect to such a clause but the Board does
not insist that parties substitute a valid clause. The latter
matter is one reserved for further bargaining. For all the
foregoing reasons, IH did not unlawfully refuse a request
by the Union to sign that contract. For most of those
same reasons, DAKA too did not unlawfully refuse such
request; in DAKA's case, I note that the Union did ask it
to sign and DAKA refused. Such refusal was not unlaw-
ful as no agreement was reached on the employment
terms and conditions for the residents and in view of the
fact that further negotiations were needed to correct the
language of the union-security clause.
The last bargaining issue involves the allegation that
IH had a duty to bargain as to its decision to terminate
DAKA's contract and unlawfully failed to do so. If its
decision were based on economic considerations, I would
agree, as Mobil Oil teaches. I have found, however, that
IH's decision was based upon unlawful discriminatory
motives. I also note that there was no probative evidence
to indicate that IH acted because of any economic con-
sideration. It would clearly be contrary to the policies of
the Act were I to suggest to IH, much less require, that
it bargain respecting a decision to cancel a contract for
unlawful reasons. In any event, the record testimony dis-
closes that the Union had been notified in July 1979 that
DAKA's contract was to end in a month and it never
requested bargaining. In those circumstances, and assum-
ing arguendo, that the decision was economically moti-
vated, it is obvious that the Union's failure to exercise its
right to demand bargaining would have been fatal to its
claim that there was an unlawful refusal. 13
CONCLUSIONS OF LAW
1. Respondent IH and Respondent DAKA are em-
ployers engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
2 The Tribune Company. 190 NLRB 398 (1971).
' Citizetnv National Bantk of I'i/anor, 245 NLRB 389 (1979).
333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The employees in the bargaining unit described in
the certification of representative in Case 2-RC-18100
constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act; and the
residents of Respondent IH who work in its cafeteria on
a full-time or regular part-time basis are properly part of
that unit, and are employees as defined in the Act.
4. Respondent IH and Respondent DAKA are the
joint employers of the employees in that unit.
5. The Union at all times material herein has been the
exclusive collective-bargaining representative of the em-
ployees in that unit within the meaning of Section 9(a) of
the Act.
6. By terminating its contract with Respondent
DAKA because the Union would not agree to a modifi-
cation of the composition of the certified unit so as to ex-
clude residents of Respondent IH and because the em-
ployees in that unit had selected the Union as their col-
lective-bargaining representative, Respondent IH has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
7. By having insisted that the Union surrender its right
and forgo its duty to represent the residents who were
properly included in the above unit and by having re-
fused to bargain as to their terms and conditions of em-
ployment, Respondent IH and Respondent DAKA have
engaged in, and are engaging in, unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. Respondent IH and Respondent DAKA did not vio-
late the Act by failing to execute a collective-bargaining
agreement with the Union or by not having bargained
with it respecting the cancellation of Respondent
DAKA's contract with Respondent IH.
THE REMEDY
Having found that Respondent IH discriminatorily ter-
minated its contract with Respondent DAKA, I shall
order that the employment status of the unit employees
then be restored to what it would have been but for the
discrimination against them, and that Respondent IH
offer them immediate and full reinstatement to their
former jobs, or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority or other rights and privileges previously enjoyed,
discharging, if necessary, employees hired as their re-
placements and make them whole for any loss of earn-
ings that they may have suffered due to the discrimina-
tion practiced against them, as prescribed in F W. Wool-
worth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977).'4
Further, I shall order that Respondent IH bargain col-
lectively with the Union, upon request, concerning all
terms and conditions of employment of all the employ-
ees, including residents, employed in the certified unit. In
" See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
Backpay is to be based on either the rate structure prevailing under
DAKA or the new rate structure established by IH, whichever results in
the higher backpay to the individual employees. In this regard, see Karl
Karlmann, spra.
addition, I shall order that Respondent IH cancel, upon
request by the Union, changes in rates of pay and bene-
fits unilaterally effectuated and make the employees
whole by remitting all wages and benefits that would
have been paid absent Respondent IH's unlawful conduct
as found herein from August 23, 1979, and until Re-
spondent IH negotiates in good faith with the Union to
agreement or to impasse. 5
As no purpose of the Act would be effectuated by re-
quiring that Respondent DAKA be reinstated to manage
the IH cafeteria, I shall not recommend such action to-
wards restoring as far as practicable the status quo ante.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 16
A. The Respondent, International House, New York,
New York, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Insisting to the Union that it agree to exclude resi-
dents of International House from inclusion in the unit,
as described below, while working there on a full-time
or regular part-time basis.
(b) Canceling its contract with any catering firm to
bring about the termination of employment of cafeteria
employees or otherwise to discharge cafeteria employees
because the Union refuses to exclude such residents from
contract negotiations or because the cafeteria employees
have selected the Union as their collective-bargaining
representative.
(c) Refusing to bargain collectively with the Union as
the exclusive representative of, inter alia, residents of In-
ternational House employed as full-time or regular part-
time kitchen and dining room employees at International
House.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act:
(a) Offer immediate and full reinstatement to all full-
time and regular part-time employees employed as dining
room and kitchen employees at International House on
or about August 23, 1979, to their former jobs, or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority and other
rights and privileges previously enjoyed, discharging, if
necessary, employees hired as their replacements and
make them whole for any loss of earnings they may have
suffered as a result of the discrimination against them, in
the manner set forth in the section of this Decision enti-
tled "The Remedy."
'S The remission of wages is to be applied consistently with the make-
whole remedy set forth above with respect to the discriminatees.
'' In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
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DINING AND KITCHEN ADMINISTRATION
(b) Upon request, bargain with the above Union as the
exclusive representative of all the employees in the
above unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody it in a
signed contract if asked to do so.
(c) Upon request of the above Union, cancel any
changes from the rates of pay and benefits that existed
immediately before the takeover by International House
of DAKA's contract to manage the cafeteria, and make
the employees whole by remitting all wages and benefits
that would have been paid absent such changes from
August 23, 1979, until it negotiates in good faith with the
Union to agreement or to impasse, in the manner set
forth in the section of this Decision entitled "The
Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order and to enable Respondent
DAKA to mail notices as provided for below.
(e) Post at its New York facility copies of the attached
notice marked "Appendix A.""' Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being duly signed by Respondent IH's authorized
representative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees and residents are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent IH to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent IH has taken to comply herewith.
B. The Respondent, Dining and Kitchen Administra-
tion, d/b/a DAKA, New York, New York, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Insisting to the Union that it agree to exclude resi-
dents of International House from inclusion in the unit
for which it was certified in Case 2-RC-18100 while
they are working in said unit on a full-time or regular
part-time basis.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act:
(a) Mail to each of its employees employed on August
23, 1979, in the unit found appropriate in Case 2-RC-
18100, including those who resided at International
House, a copy of the notice annexed as "Appendix B."'
'1 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
"'The provisions of fn. 17 shall also apply to this notice.
Copies of the notice, on forms to be provided by the Re-
gional Director for Region 2, after being duly signed by
Respondent DAKA's authorized representative, shall be
so mailed by it via certified mail, immediately upon re-
ceipt thereof, to the respective home addresses of those
employees.
(b) Mail to the Union a signed copy of that notice.
(c) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent DAKA has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations in the
complaint that Respondents International House and
DAKA unlawfully failed to honor the Union's request to
sign an agreed-upon contract or to afford the Union a
reasonable opportunity to bargain collectively respecting
an economic basis for the cancellation of Respondent
DAKA's contract with Respondent IH be, and they are,
dismissed.
APPENDIX B
NOTICE To EMPLOYEES
MAItED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
of their choice
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities,
except to the extent that the employees' bargain-
ing representative and employer have a collec-
tive-bargaining agreement which imposes a
lawful requirement that employees become union
members.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
District 1199, National Union of Hospital and
Health Care Employees, a/w Retail, Wholesale,
Department Store Union, AFL-CIO, as the exclu-
sive representative of all full-time and regular part-
time kitchen and dining room employees, including
residents of International House, employed in the
cafeteria at International House, by failing and re-
fusing to negotiate with it respecting the terms and
conditions of employment of those residents.
WE WILL. NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the Act.
DINING AND KITCHEN ADMINISTRATION,
D/B/A DAKA
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