El-Torito-La Fiesta Restaurants, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1987

284 N.L.R.B. 518 (N.L.R.B. 1987)

518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
El Torito-La Fiesta Restaurants, Inc. and Hotel Em-
ployees and Restaurant Employees Union, Local
100, of New York, New York and Vicinity,
AFL-CIO. Case 2-CA-21049
26 June 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 14 May 1986 Administrative Law Judge
Steven Davis issued the attached decision. The
General Counsel, the Charging Party, and the Re-
spondent filed exceptions and supporting briefs,
and the Respondent filed an answering briefl
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings, 2 and
conclusions only to the extent consistent with this
Decision and Order.
The General Counsel alleged in the complaint
That the Respondent unlawfully withdrew recogni-
tion from the Charging Party as the bargaining
representative of the Respondent's employees at its
Yonkers, New York restaurant and refused to
apply a collective-bargaining agreement at that site.
The Respondent admitted its refusal to recognize
the Charging Party and to apply the collective-bar-
gaining agreement, but argued that its conduct was
lawful for either of two reasons: (1) the Charging
Party had no right to represent the Yonkers em-
ployees because changes in the bargaining repre-
sentative had resulted in a lack of continuity of
representation, and (2) changes in operations and
the work force resulting from the shutdown, re-
modeling, and reopening of the Yonkers restaurant
amounted to unusual circumstances justifying with-
1 The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
The Charging Party appended to its brief two exhibits, neither of
which is part of the record in this case. Exhibit A is a Region 2 Regional
Director's report in another case involving the same union, and Exhibit B
is an excerpt from the transcnpt of a third case involving the same union.
The Charging Party has moved that Exhibit B be made part of the
record here We deny the motion, as it has not been shown that the infor-
mation contained in Exhibit B constitutes newly discovered or previously
unavailable evidence See Sec. 102.48 of the Board's Rules and Regula-
tions. For the same reason, we grant the Respondent's motion to strike
Exhibit A from the Charging Party's brief
2 The Respondent has excepted to some of the Judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
drawal of recognition. The judge, while finding the
changes due to shutdown and reopening insuffi-
cient to warrant withdrawal of recognition, found
that a lack of continuity of representation justified
the Respondent's conduct. We agree with the
former finding, but disagree, with the latter. We
therefore reverse and find that the Respondent's
withdrawal of recognition and refusal to apply the
collective-bargaining agreement violated Section
8(a)(5) and (1) of the Act.
I. FACTS
Until 1982 the Howard Johnson Company ran
the Red Coach Grill, a restaurant serving primarily
American cuisine, in Yonkers, New York. On 15
May 1981 Howard Johnson entered into a collec-
tive-bargaining agreement with Hotel, Restaurant
and Club Employees and Bartenders Union Local
6 affiliated with Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO
(Local 6), covering dining room, bar, and kitchen
employees at the restaurant. 3 The contract was ef-
fective from 16 May 1981 to 15 January 1986.
In the late fall of 1982 Howard Johnson sold the
Red Coach Grill to Exeter Equities. Exeter agreed
to assume the Local 6 bargaining agreement, and
Exeter thereafter honored the agreement.
Effective 1 January 1983 Local 6 was restruc-
tured. Local 6 continued to represent hotel indus-
try employees, while a new entity, Local 100, op-
erating under a trusteeship imposed by the Interna-
tional, was formed to represent restaurant employ-
ees formerly represented by Local 6.
On 6 May 1983 Exeter sold the Red Coach Grill
to El Torito. Though El Torito continued to oper-
ate the restaurant as the Red Coach Grill, from the
date of its purchase El Torito intended to convert
the restaurant into an El Torito restaurant serving
Mexican cuisine.
In May 1983 Local 100 sought and obtained El
Torito's signature on the following two documents:
WHEREAS, the parties hereto desire to co-
operate to stabilize labor relations by establish-
ing and maintaining general standards of
wages, hours of service, and other conditions
of employment, and BE IT HEREBY
KNOWN that the EMPLOYER and the
UNION enter into the following:
1. THE EMPLOYER agrees to assume and
adopt the present collective-bargaining
agreement existing between
Howard Johnson Company d/b/a Red Coach
Grill
3 The Red Coach Gnll employed 80 to 90 unit employees.
284 NLRB No. 66
EL TORITO-LA FIESTA RESTAURANTS 519
and
Local 6 of the Hotel Employees and Restau-
rant Employees International Union
2. The EMPLOYER hereby recognizes the
UNION as the successor in interest to Local
6 of the Hotel Employees and Restaurant
Employees International Union.
3. This Agreement is effective as of the date
of its making and expires on the same date
as the collective bargaining agreement
which the EMPLOYER hereby assumes.
The second agreement read as follows:
This is an Amendment to the present Collec-
five Bargaining Agreement existing between
El Torito-La Fiesta Restaurants, Inc. d/b/a
Red Coach Grill and Local 6, Hotel, Restau-
rant & Club Employees and Bartenders Union,
AFL-CIO;
1. The Company hereby recognizes Hotel
Employees and Restaurant Employees
Union Local 100, AFL-CIO New York
City, New York and Vicinity, as the succes-
sor to the above stated local and further, as
the Collective Bargaining Agent for its em-
ployees in the contract referred to above.
2. HERE Local 100 agrees to honor and
adopt the Collective Bargaining Agreement
in its entirety.
3. This Amendment is effective January 1st,
1983 and expires on the same date as the un-
derlying Collective Bargaining Agreement.
El Torito continued to operate the restaurant as
the Red Coach Grill and honored the collective-
bargaining agreement from 6 May until 31 Decem-
ber 1983, when it closed the facility for remodeling
into an El Torito Mexican food restaurant. Before
31 December El Torito informed Local 100 of the
planned closing and remodeling, and announced
that all employees who were being laid off would
be notified that they could reapply for and return
to their jobs when the restaurant reopened. 4 On 31
December El Torito closed the restaurant and laid
off all 72 employees.
The remodeling, though expected to take only 5
or 6 Months, was not completed for 114 months. In
August 1984 El Torito sent letters to the laid-off
employees explaining the reason for the delay and
stating, "We will keep you informed of our
4 In January 1984, at a meeting between El Torito Employee Relations
Manager David Villareal and Local 100 officials Michael Campbell and
Anthony Amodeo, Amodeo asked Villareal for an agreement to cover all
El Torito restaurants. Villareal replied that he could not commit himself
to such an agreement at that time, but told the union officials that "you
have the El Torito in Yonkers," and that El Torito would continue to
recognize the Yonkers contract with Local 100.
progress as we near completion and will give you
details as to your recall procedures." In December
1984 El Torito again sent letters to the laid-off em-
ployees stating that it planned to reopen the restau-
rant in early 1985 and soliciting individuals interest-
ed in working at the reopened restaurant. Of the 72
laid-off employees, 45 expressed interest in reem-
ployment. Of those 45, 32 showed up for inter-
views in early February 1985 when El Torito was
selecting its work force, and 14 accepted offers of
reemployment.° Only 8 of the 14 began work at
the restaurant when it reopened as an El Torito
Mexican food restaurant on 4 March 1985.6
On 5 March 1985 Local 100 demanded that El
Torito continue to recognize it as the bargaining
representative of its dining room, bar, and kitchen
employees and to apply the collective-bargaining
agreement. El Torito refused.
II. CONTINUITY OF REPRESENTATIVE
The judge found that there was no continuity of
representation between Local 6 in its capacity as
bargaining representative of the Red Coach Grill
employees before 1 January 1983 and Local 100 as
the successor bargaining representative. 7 The judge
also found that El Torito had not, by its May 1983
agreements with Local 100, waived its right to
challenge Local 100's assumption of Local 6's bar-
gaining rights at the Yonkers restaurant and was
not estopped from raising the continuity of repre-
sentation issue in the instant proceedings. The
judge relied on testimony by El Torito Executive
Vice President and Chief Financial Officer Martin
Casey that he signed the recognition agreement at
the request of Employee Relations Manager David
Villareal who told Casey that the agreement was
merely "paperwork" reflecting a "transfer in
name," and Casey's testimony that he was unaware
until the instant proceeding that a question would
be raised concerning continuity of representation
between Locals 6 and 100. The judge therefore
found El Torito had not intentionally relinquished
a known right, and without such a relinquishment
there could be no waiver or estoppel.
We do not agree that El Torito is free to raise
the continuity of representation issue as a defense
5 There is no allegation that El Torito discriminated against former
Red Coach Grill employees in its selection of employees for the reopened
facility. Indeed, though El Torito claims that all those interviewed in
February 1985, including the laid-off employees, were considered new
applicants, El Torito began interviewing potential new hires only after
completing interviews with the laid-off employees.
The El Torito restaurant employed 180 to 200 employees.
7 The judge based his finding on the Board's decision in Charlie
Brown's, 271 NLRB 378 (1984), and the fact that here, as in Charlie
Brown's, there is no evidence the employees were given a chance to vote
on the change in representative. In view of our resolution of this case, we
need not pass on the judge's finding and do not rely on Charlie Brown's.
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to the instant unfair labor practice charge. Unlike
the judge, we are not swayed by Casey's asserted
ignorance about the recognition documents he
signed. It is clear from the face of the May 1983
agreements that Local 100's substitution for Local
6 involved a change in representative. The agree-
ments refer to Local 100 as the "successor in inter-
est" to Local 6. Nowhere in the agreements is
there any suggestion that the change from Local 6
to Local 100 involved only a change in names, nor
is there any evidence Local 100 made any such
representation to El Torito. If El Torito had
doubts about Local 100's status it could have raised
them when Local 100 presented the recognition
documents to El Torito for its signature in May
1983. Instead, when El Torito signed the May 1983
agreements recognizing Local 100, it induced
Local 100 to believe that El Torito had waived
any objections to Local 100's assumption of Local
6's representational rights. El Torito clearly intend-
ed Local 100 to rely on the recognition, for it
thereafter dealt with Local 100 as the employees'
bargaining representative, forwarding dues pay-
ments to Local 100 and honoring the collective-
bargaining agreement. Local 100 relied to its detri-
ment on the recognition, i.e., Local 100 took no
action during the 8-month period while the Red
Coach Grill was still operating to reestablish its
status by, for example, obtaining authorization
cards or petitioning for an election. When El
Torito finally challenged the manner in which
Local 100 was created, raising the issue for the first
time nearly 2 years after recognition, the Red
Coach Grill had been closed for 14 months, and
the restaurant had reopened with only 8 former
Red Coach Grill employees out of a total work
force of 180 to 200. On these facts we find that all
the elements of estoppel have been satisfied. Knapp-
Sherrill Co., 261 NLRB 396, 398 (1982); Ventura
County Star-Free Press, 279 NLRB 412 fn, 1(1986).
We conclude that El Torito is estopped from chal-
lenging Local 100's assumption of Local 6's right
to represent the Yonkers restaurant employees.
III. CHANGE IN OPERATIONS
We agree with the judge that the closing of the
Red Coach Grill and the reopening of the facility
as an El Torito restaurant provided no justification
for the Respondent's withdrawal of recognition.
Despite the different menu and atmosphere, the ex-
pansion in the work force, and the change in style
and method of work, the nature of the business and
the function of the employees remained essentially
the same. Nor did the hiatus in operations provide
El Torito any grounds for its conduct. When El
Torito took over the restaurant in May 1983 and
agreed with Local 100 on a collective-bargaining
agreement covering the restaurant employees until
January 1986, El Torito already knew it was going
to remodel the facility into an El Torito restaurant.
All parties understood that the shutdown was to be
temporary, rather than an indefinite cessation of
operations. Indeed, when remodeling began the
restaurant was expected to reopen within 5 or 6
months. El Torito repeatedly assured the former
Red Coach Grill employees, before and during the
shutdown, that El Torito would be seeking their
services when the restaurant reopened, and El
Torito let Local 100 know that it would continue
to honor the contract. During the shutdown the
laid-off employees thus retained a reasonable ex-
pectation of reemployment and the bargaining unit
remained intact. The hiatus therefore did not serve
to break the continuity of the enterprise or affect
El Torito's bargaining obligation to its work force.
See Schmutz Foundry & Co., 251 NLRB 1494,
1495-1497 (1980), enfd. 678 F.2d 657 (6th Cir.
1982).
Finally, El Torito can draw no support for its
conduct from the fact that only 8 employees work-
ing at the restaurant after it reopened in March
1984 had been working at the restaurant in Decem-
ber 1983, that the work force expanded from 80 to
90 employees at the Red Coach Grill to between
180 and 200 employees at the El T'orito restaurant,
or that the record lacks affirmative evidence of
union support among the work force at the re-
opened restaurant. The mere occurrence of work
force expansion and turnover does not rebut the
presumption of continuing union majority. Ocean
Systems, 227 NLRB 1593, 1595 (1977), enfd. mem.
571 F.2d 859 (5th Cir. 1978). Further, as El Tori-
to's contract with Local 100 did not expire until
January 1986, Local 100 enjoyed an irrebuttable
presumption of majority status at the time of El
Torito's withdrawal of recognition. Hexton Furni-
ture Co., 111 NLRB 342 (1955).
CONCLUSIONS OF LAW
1. All full-time and regular part-time dining
room, bar, and kitchen employees of the Respond-
ent, employed at its Yonkers, New York restaurant,
excluding all other employees, guards, and supervi-
sors as defmed in the Act, constitute an appropriate
unit for the purposes of collective bargaining.8
8 The Respondent refused to admit to the appropriateness of this unit
as alleged in the complaint and the judge made no findmg as to the ap-
propriate unit.
According to the 1981 contract between Howard Johnson and Local 6,
adopted by El Tonto and Local 100 in May 1983, the Union was recog-
nized as the exclusive bargammg agent "for all full-time and regular part-
time employees employed m the classifications set forth in SCHEDULE
Continued
EL TORITO-LA FIESTA RESTAURANTS

521
2. By refusing on and after 5 March 1985 to rec-
ognize and bargain with the Union as exclusive
representative of the employees in the appropriate
unit described above, and by refusing to apply the
collective-bargaining agreement in effect, the Re-
spondent violated Section 8(a)(5) and (1) of the
Act.
REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, we shall order that
it cease and desist therefrom, and take certain af-
firmative action designed to effectuate the policies
of the Act.
Having found that the Respondent has unlawful-
ly refused to recognize the Union, we shall order
that it recognize the Union and, on request, bargain
collectively with the Union as the exclusive bar-
gaining representative of the employees in the ap-
propriate unit described above.
Having further found that the Respondent un-
lawfully refused to apply the terms and conditions
of its collective-bargaining agreement with the
Union to its employees at its Yonkers, New York
restaurant, we shall order the Respondent to make
its employees whole for any loss in wages or other
benefits due to the Respondent's refusal to apply
the terms of the collective-bargaining agreement, as
prescribed in Ogle Protection Service, 183 NLRB
682 (19'70), with interest as prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).9
'A' . . , at the Employer's Yonkers, New York, restaurant located in the
Cross County Shopping Center; but excluding office clerical employees,
executive hostess, chefs, guards, watchmen and supervisors as defmed by
the Act." Schedule "A" listed a number of classifications, and according
to the record, all employees in these classifications worked in the dining
area, bar, or kitchen. As of 31 December 1983 the Red Coach Grill em-
ployed, in addition to the employees in the contract classifications, two
department managers, the chef, and a bookkeeper (none of whom were
included in the unit), a cleaning person and a maintenance person (both
of whom were considered to be unit employees)
When the El Tonto restaurant opened on 4 March 1985, the job classi-
fications for nonsupervisory personnel at the restaurant were somewhat
different from those that existed at the Red Coach Grill, but it is clear
from the record that all employees in the new classifications, with the
exception of the employee classified as "office clerk," were dining room,
bar, or kitchen employees. (No El Tonto employees currently perform
the duties previously performed by the Red Coach Grill cleaning person
and maintenance person.) Further, as the judge found, the functions of
the dining room, bar, and kitchen employees at the El Torito restaurant
remain essentially the same as those of the dmmg room, bar, and kitchen
employees at the Red Coach Grill who comprised the contractually rec-
ognized eniployee unit.
We conlude the record supports finding that the unit described above
constitutes an appropriate unit at the Respondent's restaurant.
9 Further, under Menyweather Optical, 240 NLRB 1213 (1979), we
leave the determination of interest on employee benefit funds, if any, to
the compliance stage, where any additional amounts will be determined.
ORDER
The National Labor Relations Board orders that
the Respondent, El Torito-La Fiesta Restaurants,
Inc., Yonkers, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Hotel
Employees and Restaurant Employees Union,
Local 100, of New York, New York and Vicinity,
AFL-CIO as the exclusive bargaining representa-
tive of the employees in the following appropriate
unit:
All full-time and regular part-time dining
room, bar, and kitchen employees of the Re-
spondent, employed at its Yonkers, New York
restaurant, excluding all other employees,
guards, and supervisors as defined in the Act.
(b) Refusing to apply the terms of a collective-
bargaining contract with the Union.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the
Union as the exclusive representative of the em-
ployees in the appropriate unit described above on
terms and conditions of employment.
(b) Make the employees whole for any loss of
wages or employment benefits, with interest, due
to the Respondent's failure to apply the terms of its
collective-bargaining contract with the Union
which the Respondent assumed and adopted in
May 1983.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its facility in Yonkers, New York,
copies of the attached notice marked "Appen-
dix." Copies of the notice, on forms provided by
the Regional Director for Region 2, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain
with Hotel Employees and Restaurant Employees
Union, Local 100, of New York, New York and
Vicinity, AFL-CIO as the exclusive bargaining
representative of the employees in the following
appropriate unit:
All full-time and regular part-time dining
room, bar, and kitchen employees employed
by us at our Yonkers, New York restaurant,
excluding all other employees, guards, and su-
pervisors as defmed in the Act.
WE WILL NOT refuse to apply the terms of a col-
lective-bargaining contract with the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and, on request, bargain
with the Union as the exclusive representative of
the employees in the appropriate unit described
above on terms and conditions of employment.
WE WILL make the employees whole for any
loss of wages or employment benefits, with inter-
est, due to our failure to apply the terms of our
collective-bargaining contract with the Union
which we assumed and adopted in May 1983.
EL TORITO-LA FIESTA RESTAU-
RANTS, INC.
James Wasserman, Esq., for the General Counsel.
H. Reed Ellis, Esq. (De Maria, Ellis & Hunt, Esqs.), of
Newark, New Jersey, and Patrick M. Stanton, Esq.
(W.R. Grace & Co.), New York, New York, for the
Respondent.
Harold Ickes Esq. (Suozzi, English & Klein, P.C.), of Min-
cola, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. On 14
May 1985 Hotel Employees and Restaurant Employees
Union, Local 100, of New York, New York and Vicini-
ty, AFL-CIO (Local 100 or the Union) filed a charge
against El Torito-La Fiesta Restaurants, Inc. (Respond-
ent), 1 and on 29 August, the Regional Director for
Region 2 of the National Labor Relations Board issued a
complaint against Respondent that alleged it violated
Section 8(a)(1) and (5) of the Act by failing and refusing
to recognize the Union as the exclusive representative of
its employees at its Yonkers, New York location, and
failing and refusing to apply and enforce a collective-bar-
gaining contract at that site.
Respondent's answer denied the material allegations of
the complaint and set forth certain affirmative defenses.
The case was heard before me in New York City on
15 and 16 January 1986.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, having its office
and place of business in Yonkers, New York, has been
engaged in the operation of a restaurant selling food and
beverages to the public. Annually, in the course and con-
duct of its business operations, Respondent derives gross
revenues in excess of $500,000, and also purchases food
and beverages valued in excess of $50,000 directly from
suppliers located outside New York State. Respondent
admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Howard Johnson Company d/b/a Red Coach
Grill operated a restaurant known as the Red Coach
Grill in Yonkers, New York, which served American
cuisine.
On 15 May 1981 that company entered into a collec-
tive-bargaining agreement with Hotel, Restaurant and
Club Employees and Bartenders Union Local 6 affiliated
with Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO (Local 6), covering cer-
tain employees. 2 The contract, effective from 16 May
1 Martin Casey, Respondent's executive vice president and chief finan-
cial officer, testified without contradiction that in October 1983, the name
of Respondent was changed to El Tonto Restaurants, Inc. Because there
was no motion to amend the name as set forth in the complaint, I have
not done so.
2 The Job classifications covered by the contract are: host/waitress;
waiter/waitress; bus person; bartender; cashier/checker; cook; broiler-
Continued
EL TORITO-LA FIESTA RESTAURANTS

523
1981 to 15 January 1986, was by its terms "binding upon
the successors and assigns of the parties."
About October 1982, the Red Coach Grill was pur-
chased by Exeter Equities. One provision of the contract
of sale was that Exeter agreed to assume the Local 6
contract. Exeter operated the Red Coach Grill and ap-
parently honored the Local 6 agreement.
Effective in January 1983 the Hotel Employees and
Restaurant Employees International Union imposed a
trusteeship on Local 6. The trusteeship was to operate
under the name Hotel and Restaurant Employees Union
Local 100, which was created in January 1983.
Accordingly, at that time, as stipulated at the hearing,
Local 100 succeeded to the representation rights of
Local 6 with respect to the unit employees at the Red
Coach Grill.
On 6 May 1983, Exeter Equities, which had been oper-
ating the Red Coach Grill, sold it to Respondent.
B. Respondent's Operation of the Red Coach Grill
Respondent operated the Red Coach Grill as the Red
Coach Grill, but from the date of its purchase it intended
to convert it to an El Torito restaurant.
In May 1983, Respondent and Local 100 entered into
the following agreement:
WHEREAS, the parties hereto desire to cooper-
ate to stabilize labor relations by establishing and
maintaining general standards of wages, hours of
service, and other conditions of employment, and
BE IT HEREBY KNOWN that the EMPLOY-
ER and the UNION enter into the following:
1. THE EMPLOYER agrees to assume and
adopt the present collective- bargaining agree-
ment existing between
Howard Johnson Company d/b/a Red Coach
Grill
and
Local 6 of the Hotel Employees and Restaurant
Employees International Union
2. The EMPLOYER hereby recognizes the
UNION as the successor in interest to Local 6 of
the Hotel Employees and Restaurant Employees
International Union.
3. This Agreement is effective as of the date of
its making and expires on the same date as the
collective bargaining agreement which the EM-
PLOYER hereby assumes.
Another document entitled "Amendment To Collective
Bargaining Agreement," was signed on the same date
and stated:
This is an Amendment to the present Collective
Bargaining Agreement existing between El Torito-
La Fiesta Restaurants, Inc. d/b/a Red Coach Grill
and Local 6, Hotel, Restaurant & Club Employees
and Bartenders Union, AFL-CIO;
man/relief cook, fry cook; salad/pantry preparation; floor steward; utili-
ty; and banquet waiter/waitress.
I. The Company hereby recognizes Hotel Em-
ployees and Restaurant Employees Union Local
100, AFL-CIO New York City, New York and
Vicinity, as the successor to the above stated
local and further, as the Collective Bargaining
Agent for its employees in the contract referred
to above.
2 HERE Local 100 agrees to honor and adopt
the Collective Bargaining Agreement in its en-
tirety.
3. This Amendment is effective January 1st, 1983
and expires on the same date as the underlying Col-
lective Bargaining Agreement.
Martin Casey, Respondent's executive vice president
and chief financial officer, testified that he signed the (a)
first agreement at the request of David Villareal, Re-
spondent's employee relations manager, who told him
that it represented "paperwork" to confirm a name
change from one union to another, and (b) amendment to
collective-bargaining agreement because he believed that
he was obligated to do so because of his understanding
that the purchase of the Red Coach Grill carried with it
the duty to assume the union contract during the time
that the Respondent operated the Red Coach thin.
In his letter to Local 100 transmitting the two execut-
ed agreements, Villareal stated that he declined to exe-
cute a third document—a recognition agreement. The
recognition agreement provided, inter alia, that the par-
ties agreed that (a) the Union demanded the Employer
recognize it as the exclusive bargaining agent of the em-
ployees and (b) the Employer
has conducted an independent investigation into the
Union's claimed majority status and has determined
that the Union has been designated by a majority of
its employees in an appropriate bargaining unit, and
that (c) on the basis of its independent investigation
and confirmation of the Union's majority status, the
Employer recognizes the Union as the . . . exclu-
sive bargaining agent . . . and agrees (within 30
days to) enter into collective bargaining negotia-
tions with the Union with the intent . . of con-
cluding a collective bargaining agreement. . . .
Villareal's reason for refusing to execute the recogni-
tion agreement was that "we have by virtue of [signing
the two agreements] acknowledged the necessary ele-
ments in conducting a working relationship via the exist-
ing labor agreement."
Respondent continued to operate the restaurant as a
Red Coach Grill, and honored the collective-bargaining
agreement, from the date of its purchase on 6 May 1983
until 31 December 1983, when Respondent closed the
restaurant. The purpose of closing was to renovate the
facility and transform it into an El Torito restaurant. It
was believed that the metamorphosis could be completed
within 5 or 6 months, but the opening of El Torito actu-
ally did not occur until 4 March 1985, which was 14
months after the close of the Red Coach Grill. The delay
was caused by the (a) extensive nature of the renovation
including a complete gutting of the interior of the struc-
524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ture, (b) delays in obtaining inspections and permits, and
(c) a late change in concept for the restaurant—eliminat-
ing a planned dance floor.5
On 9 December 1983 David Villareal, Respondent's
director of labor relations, sent a letter to Local 100 in
which he notified it of the intended closing of the Red
Coach Grill on 31 December. He stated that "by virtue
of this closure, the Red Coach Grill will close as an
operational entity, and the physical location will undergo
major renovation." Thereafter, Kevin Conley, the man-
ager of the Red Coach Grill, told the employees that the
restaurant would be permanently closed on 31 Decem-
ber, that they would be laid off, and that a new Mexican
restaurant would open at the site sometime in 1984.
According to Union Agent Michael Campbell, Conley
told him, before 31 December, that the Red Coach Grill
was closing for renovations, and that all the employees
who were being laid off would be notified that they
could reapply for and return to their jobs when the res-
taurant opened.4
As of the date of the closing of the Red Coach Grill,
the 72 unit employees were laid off, and of those, 41 had
dues checked off by Respondent and sent to Local 100.
Respondent's official testified that 19 dues-deduction
authorizations were in its possession. Those cards were
signed by employees who were employed from May to
December 1983 when Respondent operated the Red
Coach Grill.
On the closing of the Red Coach Grill, Respondent
paid the employees for all the hours they worked and for
accrued vacation. The International Union terminated
Respondent's health, welfare, and pension account for
the Red Coach Grill, effective 31 December 1983.
In January 1984, a meeting was held between Villar-
eal, Michael Campbell, and Anthony Amodeo, the busi-
ness agent and president, respectively, of Local 100.
Amodeo asked Villareal for an "International" agree-
ment to cover all El Torito restaurants. Villareal replied
that he had to get back to him regarding that, but "you
have the El Torito in Yonkers, and we're recognizing
that contract. 5 Villareal did not testify.
C. Notification and Hiring of Employees
On 23 August 1984 Donna Davies, Respondent's di-
rector of personnel, sent the following letter to the laid-
off employees:
The purpose of this letter is to advise you of the
status of the Yonkers Red Coach Grill , conversion
to that of an El Torito Mexican dinnerhouse.
The remodeling work necessary for the conver-
sion is proving to be quite extensive. It now appears
that, due to delays in deliveries of construction ma-
3 It has not been alleged that the delay in opening the El Torito restau-
rant was motivated by antiunion considerations.
4 I credit Campbell's testimony in this regard. Respondent's later noti-
fication to laid-off employees that they could apply for jobs, and the pref-
erence shown them in being given interviews before other candidates,
supports his testimony.
5 Campbell was not certain whether Villareal said that "we are recog-
nized in that contract," "we are recognizing that contract," or "we will
recognize the contract"
terials, the restaurant's reopening will be delayed
beyond the originally projected date of September
1984.
We are using this additional time to evaluate the
benefits we might realize from the addition of a
dance floor/disco operation. If we decide to go for-
ward with addition of such an operation, we would
do so prior to the reopening so that we can be
ready with a complete format when the El Torito
concept becomes a reality.
We will keep you informed of our progress as we
near completion and will give you details as to your
recall procedures.
On 11 December 1984, Davies sent the employees the
following letter:
Barring any other unforeseen problems, we are
planning on opening the all-new El Torito Mexican
Restaurant in Yonkers on February 1.
We hope you are looking forward to the intro-
duction of our exciting Mexican food dinnerhouse
concept into the Yonkers area. We expect that the
informal fast-paced atmosphere and the affordably-
priced menu will result in a high volume of guests
coming into the restaurant during all hours of oper-
ation.
Since many of you have not had the chance to
visit an El Torito, we are enclosing a sample menu,
photographs and promotional material to help you
understand the concept. El Torito offers a wide va-
riety of Mexican Food in a fun and festive atmos-
phere. Of course, our employees are a vital part of
our upbeat, friendly and lively environment.
In addition, we also are enclosing a reply card
for you to use to let us know your interest in work-
ing with us and how to contact you in connection
with our staffmg of the new El Torito. Please take
the time to complete the card and return it to us. If
we do not hear from you, we'll assume you are not
interested.
We look forward to February when El Torito
excitement comes to Yonkers.
Enclosed with that letter was a preprinted reply card
that stated, "Yes! I am interested in working at the new
El Torito in Yonkers. Please contact me when more in-
formation is available."
On 29 January 1985 Davies sent letters to employees,
which stated, in part, that
As you may see from the ads in your local newspa-
per, interviews for applicants will begin. . . Febru-
ary 5th. However, in view of your experience and
interest we would like to meet with you prior to
that date. If you are still interested in working at
the El Torito-Yonkers, please come to the restau-
rant. . . on February 4th. . . .6
6 Davies stated that all those interviewed, including the laid-off Red
Coach Grill employees, were considered as "new applicants."
EL TORITO-LA FIESTA RESTAURANTS

525
Of the 72 employees on the payroll as of 31 December
1983, 45 returned reply cards in response to the 11 De-
cember letter, or otherwise applied for a position. Of
those 45, 32 were interviewed and 14 accepted positions
that were offered.7
However, only 8 of the 14 actually began work at El
Torito on 4 March 1985.
D. The Opening of El Torito
About 5 March, Local 100 demanded that Respondent
continue to recognize it as the exclusive bargaining rep-
resentative of its dining room, bar, and kitchen employ-
ees, and to apply and enforce the collective-bargaining
agreement previously assumed and adopted by Respond-
ent.
Respondent admits that on that date it refused to rec-
ognize Local 100 and also refused to apply and enforce
the collective-bargaining agreement.
E. The Nature of the Restaurant
There was extensive testimony concerning the differ-
ences between the Red Coach Grill and the El Torito
restaurant. The major differences are that (a) the Red
Coach Grill served an American cuisine in a leisurely,
club atmosphere, catering to an older clientele consisting
of business people, whereas the El Torito restaurant
served a Mexican cuisine in a bright, light, tropical motif
to a younger and family clientele who spent less time
eating; (b) local decision making at the Red Coach Grill
resided in the manager, while headquarters in Massachu-
setts exercised control generally, whereas the general
manager and the department managers at El Torito were
responsible for decisions at the location; (c) more exten-
sive training was given to El Torito supervisors and em-
ployees; (d) the Red Coach Grill employed a full com-
plement of 80 to 90 employees and 3 supervisors, where-
as the El Torito employed 180 to 200 workers and 10 su-
pervisors; (e) there were differences in job classifications
between the two operations; (f) there are some slight dif-
ferences in the rate of pay for employees; $ (g) the ratio
of full-time to part-time employees is different—the Red
Coach Grill employed 11 part-time and 61 full-time
workers; on 5 March 1985, El Torito employed 52 part-
time and 139 full-time employees; and (h) the job func-
tions of the various employees differ somewhat between
the two operations.
7 Interviews of the former Red Coach Grill employees, which were
concluded about 9 February, thus were given priority over interviews
with employees who had not been employed there. The interviews with
new employees were held after 9 February.
8 For the period 5 March 1985, the host/hostess, server, server assist-
ant, bartender, cook, and prep cook at El Torito received $4-4.50; $2.35
(including tip credit), $3.35; $3.50; $4.50-5.50, and 54-4.25 per hour re-
spectively.
In that period the host/hostess, waiter/waitress, bus person, bartender,
cook and preparation person at the Red Coach Grill received $4.47,
$3.02, $3.02, $4.07, $5.47, and $4.72, per hour, respectively.
Both operations gave 1-week vacation after 1-year employment and 2
weeks after 2 years; El Torito gave four paid holidays Red Coach Grill
gave nine paid holidays.
III. ANALYSIS AND DISCUSSION
A. Continuity of Representation
Respondent relies heavily on Charlie Brown's', 271
NLRB 378 (1984), in arguing that there has been no con-
tinuity of representation between Local 6, which repre-
sented the Red Coach Grill employees and had a con-
tract covering them, and Local 100, the successor in in-
terest to Local 6, put in place as a trustee by the Interna-
tional Union.
Charlie Brown's supports Respondent's position. The
Board there stated explicitly that:
Where a . . . recognized representative changes
its organizational structure, the Board must deter-
mine—to issue . . . a bargaining order—whether
the altered organization is still the employees' repre-
sentative. Our primary concern in such cases is,
whether the change in structure reflected the em-
ployees' desires. [Supra at 378.]
The Board, in dismissing the election petition, found that
(a) the election occurred before the division of Local 6
into Locals 6 and 100; (b) no employee had an opportu-
nity to participate in the decision to divide the Unions;
and (c) the showing of interest in the pre-1983 Local 6
did not demonstrate employee interest in the present, di-
vided Local 6. The Board cited Newspapers, Inc., 210
NLRB 8 (1974), in support of its reasoning. In that case,
it found that a majority of the employees had voted in
favor of a merger and had later signed authorization
cards for the merged union. None of those facts are
present here. It was stipulated here that no election took
place among the employees to determine whether they
wished to be represented by the new Local 100, and
there was no affirmative evidence that any authorization
cards were signed in behalf of that Union.9
I am bound by the Board's decision in Charlie Brown's,
which addresses the identical unions and the same matter
raised here. Thus, the Board expressly found that the di-
vision of Local 6 was a structural change that (a) raises a
question about continuity of representation and (b) re-
quires a showing that it reflects the employees' desires.
The Board found that (a) no employee participated in
the decision to divide the Unions into Locals 6 and 100
and (b), moreover, a showing of interest in the prior
Local 6 did not demonstrate employee interest in the
present Local 6. The Board concluded that "since there
is no record of the employees' desires, we find [factors
concerning continuity of representation] immaterial to
the ultimate conclusion that there is no continuity."
The General Counsel does not directly address this
issue, and did not assert or attempt to prove that Local
100 possessed authorization cards from a majority of the
employees. Rather, the complaint alleges and the Gener-
al Counsel asserts that Local 100 is the exclusive, majori-
ty representative of the unit employees by virtue of Re-
spondent's May 1983 recognition of the Union and its
agreement to assume and adopt the collective-bargaining
9 See discussion, infra, of the stipulation concerning the procedure
used for dues-deduction authorizations.
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement. Although I find that Local 100 enjoyed an ir-
rebuttable presumption of majority status when Respond-
ent refused to bargain, this does not answer the question.
The Board in Charlie Brown's and in other cases has
placed primary importance—almost as a condition prece-
dent—on employee agreement with the change in repre-
sentation. See State Bank of India, 262 NLRB 1108
(1982). There is no evidence here that any employees
voted, at any time, to accept the change in structure.
Counsel for Local 100 and Respondent had an "under-
standing" that in May 1984, all members of then trusteed
Local 100 voted to elect officers and adopt the bylaws of
Local 100, and in June 1984, Local 100 came out of
trusteeship and became an independent local. This "un-
derstanding" does not prove that the May 1984 election
concerned the issue of the change in representation from
Local 6 to Local 100. The change in structure had al-
ready taken place, and the election of officers and adop-
tion of the bylaws were routine matters that were, in
effect, a fait accompli, to the original structural changes
in the Unions. Although the election and adoption might
be viewed as evidence that employees had an interest in
Local 100, there is no evidence as to whether the em-
ployees in this unit, all of whom had then been on layoff
for 5 months, voted."
The General Counsel asserts that employees' interest
in Local 100 is proven by the fact that authorization
cards were signed by a majority of employees. He uses
the following analysis
It was stipulated that the procedure in completing the
two-part dues-deduction and membership authorization
card is as follows:
The employee completes both parts of the card.
The card is then returned to the union. The Union
tears off the tissue of the dues checkoff authoriza-
tion card, transmits the document to the respondent
in this case and keeps the carbon copy from which
the tissue was removed plus the union membership
card. . . .
The document described above was a Local 100 card.
Therefore, 41 of the 72—a majority of the Red Coach
Grill unit employees—had dues checked off by Respond-
ent and transmitted to Local 100 on 31 December 1983,
when that restaurant closed. A finding could therefore
be made that, based on the stipulation, the 41 employees
who had dues deducted must have completed both parts,
which included the membership application, of the two-
part form and, accordingly, Local 100 had authorizations
from a majority of the unit employees when the Red
Coach Grill was closed. However, Respondent argues
that no such fmding may be made because (a) it pos-
sessed only 19 dues-deduction authorizations and there-
fore deducted dues from a majority of the unit in a "uni-
lateral and unauthorized" manner and (b) Local 100 did
not produce any membership application cards at the
hearing.
10 It should be noted that the Board has found a vote on the issue of a
merger appropriate and valid 2 years after the event Safeway Steel, 173
NLRB 311 (1968).
I am thus faced with the following: (a) The General
Counsel's argument that the stipulation implies that a ma-
jority of unit employees executed authorization cards and
therefore expressed an interest in being represented by
Local 100 after the iiriposition of the trusteeship; (b) Re-
spondent's admission that it deducted dues from a major-
ity of the unit without proper authorization notwith-
standing its (c) agreement set forth in the contract which
it assumed and adopted, that it could deduct dues "pro-
vided that each employee from whom such dues. . . are
deducted shall submit to the Employer a written authori-
zation"; and (d) the iionproduction of the authorization
cards.
In considering this issue, I have also considered the
facts that for a period of 1 year from January to Decem-
ber 1983, without apparent complaint" employees: (a)
dues were deducted; (b) received representation by
Local 100; and (c) received the contractual wages and
benefits. Moreover, Respondent, for a period of 8
months, from May to December 1983, (a) recognized
Local 100 as the successor in interest to Local 6 and as
the collective-bargaining agent for its employees, (b)
agreed to assume and adopt the contract, between the
Red Coach Grill and Local 6, (c) honored and applied
the terms of the contract, and (d) deducted dues from
the pay of its workers and transmitted them to Local
100.
I have also considered the issue of estoppel and
waiver. In Jolie Belts Co., 265 NLRB 1130, 1136 (1982),
the Board, in concluding that the respondent violated
Section 8(a)(5) of the Act, found that although there was
no evidence that all eligible employees were properly
notified or provided an opportunity to vote on a merger
of the Los Angeles Joint Board (LAJB) into the District
Council
Respondent here cannot now attack the validity of
the merger because the evidence fully demonstrates
that, subsequent to the merger, Respondent entered
into a collective-bargaining relationship with Dis-
trict Council as the continuation of LAJB. Thus, on
August 8, 1979, Respondent and District Council
entered into a modification of a portion of the bene-
fit provisions of the LAJB agreement and, more im-
portantly, specifically agreed that the LAJB con-
tract, including the modification, would remain in
full force and effect between the parties. Therefore,
respondent recognized, at least at this point, the
District Council as the continuation of LAJB and
negotiated with it as such. Accordingly, I find, in
these circumstances, that District Council is a con-
tinuation of LAJB and is the successor to LAJB's
representational rights with Respondent.
Here, too, subsequent to the trusteeship, (a) Respond-
ent expressly recognized Local 100 as the successor in
interest to Local 6, (b) agreed that Local 100 succeeded
" There is no evidence that the employees did not wish to be repre-
sented by Local 100. Climax Molybdenum Co., 145 NLRB 508, 509 fn. 1
(1964), relied on by the Board in Charlie Brown's. There was testimony
that no grievances were filed from May to December 1983.
EL TORITO-LA FIESTA RESTAURANTS 527
to the representation rights of Local 6 with respect to
the unit employees at the Red Coach Grill, and (c)
amended the collective-bargaining agreement.
In Knapp-Sherrill Co., 263 NLRB 396 (1982), the
Board has also held that an employer may be estopped
from challenging the procedures employed in a merger,
and by recognizing the successor union, waived its right
to challenge such procedures. Here, as in that case, Re-
spondent had knowledge of the change in representation.
Martin Casey, Respondent's official, stated that when he
signed the agreement recognizing Local 100, he believed
that it was paperwork to reflect a transfer in name from
one union to another. He added, however, that he was
not aware that a question would be raised concerning
continuity of representation between Locals 6 and 100.
He first became aware of that at the hearing. Thus, it
cannot be said that Respondent "intentionally and volun-
tarily relinquished its rights" in this respect, which is
critical to finding estoppel and waiver. Respondent
thereafter dealt with Local 100 as its employees' bargain-
ing representative. It forwarded dues payments to Local
100 and honored the collective-bargaining agreement
that it assumed and adopted. Respondent refused to bar-
gain with Local 100 on 5 March 1985, when it demanded
that Respondent recognize and honor its contract that
was still in effect. Until that time, Local 100 apparently
had no indication that Respondent believed that it was
not the bargaining representative of its employees. 12
It is clear that Local 100 relied, to its detriment, on
Respondent's recognition. It took no apparent action
during the 8-month period until the Red Coach Grill was
closed, to establish its status as the collective-bargaining
representative of Respondent's employees. Had Respond-
ent earlier challenged the manner in which Local 100
was created, the Union could have obtained (a) the nec-
essary vote of the union members 13 and (b) authorization
cards from a majority of the employees. Rather, by chal-
lenging the creation of Local 100 after the 14-month clo-
sure of the Red Coach Grill, and when El Torito opened
with only 8 of the former Red Coach Grill workers out
of a total complement of 180 to 200, Respondent created
a barrier to Local 100's ability to take either of those ac-
tions.14
However, inasmuch as I have found that Respondent
did iiot intentionally and voluntarily relinquish its rights
to object to the change from Local 6 to Local 100, I
cannot find that it is estopped from challenging the trust-
eeship or has waived its rights to challenge it.
In sum, therefore, after careful consideration of all
these matters, I return to the Board's holding in Charlie
Brown's, about which I am bound, and about which I
must give overriding weight because of the identity of
unions in issue. The Board expressed its "primary con-
cern" as being "whether the change in structure reflect-
12 In this connection I credit the uncontradicted testimony of Union
Agent Campbell that in January 1984, after the close of the Red Coach
Grill, David Villareal, Respondent's director of labor relations, told him
and the union president that Respondent recognized the contract,
12 NLRB v. Financial Institution Employees, 475 U.S. 192 (1986).
14 On 29 April 1985 a Local 100 agent asked five or six nonsuperviso-
ry employees of Respondent if they were interested in being represented
by the Union.
ed the employees' desires." No such vote took place
there or here.
Moreover, I simply cannot find, based on the evidence
set forth above, that employees expressed an interest in
Local 100. As stated in State Bank of India, supra, 262
NLRB at 1118:
Unquestionably, proof of employee support for a
merger gathered after the effectuation of the merger
can be germane to the issue of what constitutes the
true desires of the employees, but such expressions,
whether by way of authorization cards or willing-
ness of employees to strike will only be considered
by the Board in cases in which the true desires of
the employees are ascertainable because all of the
important requirements of due process, such as
proper notice, adequate discussion of the issues and
voting by a proper and suitable method, were com-
plied with.
I accordingly must find that no continuity of represen-
tation between Locals 6 and 100 occurred, and that Re-
spondent did not unlawfully refuse to bargain with Local
100.1s
B. Continuity of the Unit
In the interest of completion, and in the event the
Board does not agree with me on the issue of continuity
of representation, I shall discuss the remaining issue.
The General Counsel asserts that the 31 December
1983 closing of the facility was temporary and not per-
manent and, accordingly, the bargaining unit remained
intact during the period of such closing for renovations.
The General Counsel defends the validity of the contract
on the ground that, although it was originally for a term
of 5 years, Respondent's adoption and assumption of it
was effective from 1 May 1983 to 15 January 1986, a
period of less than 3 years. He therefore contends that
during the period of that contract an irrebuttable pre-
15 have also considered the following:
(a) The International Union apparently followed its own constitution,
which does not require employee participation, in imposing the trustee-
ship.
(b) Although there is no evidence concerning why the trusteeship was
imposed, the International Union's constitution provides that a trustee
may be appointed when, inter &ha, "it is necessary for the purpose of cor-
recting corruption or financial malpractice, assuring the performance of
collective bargaining agreements or other duties of a bargaining repre-
sentative, restoring democratic procedures, or otherwise carrying out le-
gitimate objects."
If the purpose for imposing a trusteeship and creating Local 100 was to
implement one of those objectives, then it would seem to be in the na-
tional interest to encourage the imposition of trusteeships in appropriate
cases See the report of the President's Comnussion on Organized Crime,
issued on 14 January 1986.
International unions would not be encouraged to impose a trusteeship
when, in cases such as tins, a consequence of the imposition of a trustee-
ship is the loss of bargaining rights, in which an employer recognized the
new local union and adopted, assumed, and honored its contract for 8
months until the facility was closed.
Of course the answer to this is that a proper vote could still be taken
prior to the imposition of such a trusteeship, and an informed electorate
could be expected to vote for such a structural change. But in cases of an
"emergency," in which the International constitution provides for the im-
position of a trusteeship, time for a vote that will meet the Board's stand-
ards of due process may not be available. State Bank of India, supra.
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sumption existed that Local 100 was the majority repre-
sentative of the employees, and Respondent violated the
Act by withdrawing recognition from Local 100 and re-
fusing to honor and apply the contract during its term.
Respondent argues that pursuant to the Board's con-
tract-bar rules it was justified in refusing to continue rec-
ognition of Local 100. It asserts that the changed nature
of operations, from a Red Coach Grill to an El Torito
restaurant, after an indefinite period of closing, and the
employment of new employees removed the contract as
a bar, and permitted Respondent to refuse to continue
recognizing the Union.
The Board has recently stated in Sisters of Mercy
Health Corp., 277 NLRB 1353, 1353-1354 (1985), that:
It is well established that a union enjoys an irre-
buttable presumption of majority status during the
term of a collective-bargaining agreement. An em-
ployer, therefore, does not have the right to with-
draw recognition of a union during this period on
the basis of a good-faith doubt, or even actual proof
of loss of a union's majority status. Inasmuch as the
contract between the Respondent and Local 417
had not expired, the Respondent's good-faith doubt
of Local 417's majority status was not a defense to
its refusal to recognize Local 417's representative
status.
I accordingly fmd that Respondent's assumption and
adoption of the collective-bargaining agreement effective
1 May 1983 created a new contract between the parties,
effective from 1 May 1983 to 15 January 1986. I further
find that until 15 January 1986, Local 100 enjoyed an is-
rebuttable presumption of majority status.
I also fmd that the bargaining unit remained intact
during the period of the closing of the facility, from 31
December 1983 to 5 March 1985:
(a) When Respondent assumed and adopted the collec-
tive-bargaining agreement, it agreed to recognize the
Union until its expiration on 15 January 1986, and at that
time it knew that it intended to close the Red Coach
Grill in December 1983 and open an El Torito restau-
rant. Respondent, therefore, was aware that continued
recognition of the agreement and employment of the bar-
gaining unit employees was expected.
(b) Red Coach Grill Manager Conley told Union
Agent Campbell that the laid-off employees could later
reapply for and return to their jobs when the El Torito
restaurant opened.
(c) In August and December 1984, and in January
1985, Respondent's director of personnel sent letters to
the laid-off employees concerning the new restaurant.
The letters advised the former workers of the progress
of the renovations of the new restaurant and in the
August letter advised them that they would be notified
as to their "recall procedures." The letters generally
sought to interest the employees in working for the El
Torito restaurant, or at least being interviewed for a po-
sition. Of It& 72 employees on the payroll on 31 Decem-
ber 1983, 1 45 returned reply cards (indicating an interest
in working at El Torito), or otherwise applied for a posi-
tion. Of those 45, 32 were interviewed, and 14 accepted
positions that were offered. Only 8 of the 14 actually
began work at El Torito on 4 March 1985.
I do not agree with the General Counsel that the
above procedure was a "recall." The laid-off employees
were not recalled to work. They were not told to report
to work on a specific date. Rather, they were all subject
to employment interviews by Respondent. Nevertheless,
the appropriate inquiry is whether the employee had a
reasonable expectancy of recall in the near future.
In Atlas Metal Spinning Co., 266 NLRB 180 (1983), the
Board stated that the factors used to determine whether
an employee possesses such an expectancy include the
employer's past experience and future plans, the circum-
stances of the layoffs, and what the employee was told
about the likelihood of recall. Here, there is no evidence
of the Respondent's past experience, but its future plans
included the opening of a restaurant 5 to 6 months after
the closure. In addition, the employees were told that
they could apply for jobs, and Respondent's official noti-
fied all of them during the layoff concerning jobs and
used the term "recall procedures." Under these circum-
stances, I fmd that all the laid-off employees had a rea-
sonable expectancy of recall.
Respondent argues, inter alia, that the substantial
change in operations from a Red Coach Grill to an El
Torito restaurant, the change and increase in size of the
employing unit, and the different job classifications
before and after the change, permitted it to refuse to rec-
ognize the Union or to honor the collective-bargaining
contract. I do not agree.
To be sure, there has been a change in the style of the
restaurant—from a traditional American-type diner to an
exotic, fast-paced Mexican restaurant. As stated in Rice
Food Markets, 255 NLRB 884, 886 (1981):
[W]hether Respondent should have continued to
recognize the Union depends on whether the
changes effected were sufficient to remove those
employees from the bargaining unit represented by
the union. . . .
Although the style and method of performing the
work has changed, the function of the employees in-
volved remains essentially the same. Bay Shipbuilding
Corp., 263 NLRB 1133, 1139 (1982).
The function of the workers was and is the efficient
service of food and drink to customers. Although addi-
tional training may be necessary for some of the job clas-
sifications, in terms of' the Respondent's marketing sales
approach, and use of different equipment, there was no
evidence that the Red Coach Grill employees could not
have been quickly and easily trained in the new proce-
dures. In fact, such laid-off workers were given prefer-
ence in receiving interviews before others because of
their "experience and interest."
In this case, there is no doubt that there have
been changes in the job duties and tasks of the af-
fected employees. Nevertheless, the similarities be-
tween the work performed by these employees
before and after the changes . . . far outweigh the
differences effected by those changes. The function
EL TORITO-LA FIESTA RESTAURANTS 529
of loftsmen in both manual and computer lofting is
identical and the differences arise only in the
manner in which this function is carried out. [Bay
Shipbuilding, supra at 1140.]
The fact that only 8 of the former Red Coach Grill
employees became employed in the 180-200 employee El
Torito unit is not sufficient to permit Respondent to
withdraw recognition from the Union and refuse to
honor its contract because Local 100 enjoyed an irrebut-
table presumption of majority status on 5 March 1985 by
virtue of its unexpired collective-bargaining contract.
Conclusion
In view of my findings that there was no continuity of
representation between Local 6 and Local 100, I must
conclude that Respondent did not refuse to bargain with
Local 100 in violation of the Act.
CONCLUSIONS OF LAW
Respondent has not violated the Act in any respect.
[Recommended Order for dismissal omitted from pub-
lication.]