Gerrino Restaurant

National Labor Relations Board - Board Decisions

Jan 21, 1992

306 N.L.R.B. 86 (N.L.R.B. 1992)

86
306 NLRB No. 21
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The case number which appeared on the judge’s decision was in
error. The correct number is reflected in the caption of this decision.
2 We agree with the judge’s finding that the Respondent violated
Sec. 8(a)(5) and (1) of the Act by withdrawing recognition and re-
fusing to bargain with the Union before a reasonable period for bar-
gaining had elapsed. In light of that finding, we do not pass on the
judge’s ‘‘arguendo’’ analysis concerning the Respondent’s basis for
doubting the Union’s majority status.
Gerrino, Inc. d/b/a Gerrino Restaurant and Hotel
Employees and Restaurant Employees Union,
Local 69, AFL–CIO. Case 22–CA–174601
January 21, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On October 17, 1991, Administrative Law Judge
Steven Davis issued the attached decision. The General
Counsel filed exceptions and a supporting brief and the
Respondent’s counsel filed a letter in response to the
General Counsel’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Gerrino, Inc. d/b/a Gerrino
Restaurant, Hoboken, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Julie L. Kaufman, Esq., for the General Counsel.
D. Gayle Loftis, Esq., of Hackensack, New Jersey, for the
Respondent.
Larry M. Cole, Esq. (Cole & Cole, Esqs.), of Jersey City,
New Jersey, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant to a
charge filed by Hotel Employees and Restaurant Employees
Union, Local 69, AFL–CIO (Union) on January 17, 1991, a
complaint was issued against Gerrino, Inc. d/b/a Gerrino
Restaurant (Respondent) on March 1, 1991. The complaint
alleges that Respondent unlawfully refused to bargain with
the Union by withdrawing recognition from the Union at a
time when it did not have a good-faith doubt, based on ob-
jective considerations, as to the Union’s majority status. Re-
spondent’s answer denied the material allegations of the
complaint, and set forth certain affirmative defenses, which
will be discussed, infra. On May 20, 1991, a hearing was
held before me in Newark, New Jersey.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by General Counsel and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New Jersey corporation having its office
and place of business in Hoboken, New Jersey, has been en-
gaged in the operation of a public restaurant selling food and
beverages.
During the past 12 months, Respondent derived gross rev-
enues in excess of $500,000 from its operations, and it pur-
chased goods and materials valued in excess of $5000 di-
rectly from suppliers located outside New Jersey. 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.
Respondent also admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE UNFAIR LABOR PRACTICES
The parties have had no prior collective-bargaining rela-
tionship. In settlement of a prior unfair labor practice case,
Respondent agreed to bargain collectively, in good faith with
the Union, as the exclusive collective-bargaining agent in the
following collective-bargaining unit:
All full time employees including kitchen employees,
chef, bartenders, waiters, waitresses, bus boys, cooks
and dishwashers, employed at its Hoboken, New Jersey
facility, but excluding all office clerical employees, pro-
fessional employees, guards, and supervisors as defined
in the Act, and any individuals employed by parent or
spouse.
Respondent, in its answer, admits that on April 28, 1990,
it agreed to recognize and bargain with the Union in that
unit, pursuant to an informal settlement agreement. It should
be noted that that settlement agreement also settled certain
allegations of 8(a)(1) conduct allegedly committed by Re-
spondent.
In June 1990, Union Attorney Sheldon Cohen spoke to Pa-
tricia Burke, the secretary of Respondent’s attorney, D.
Gayle Loftis. Cohen suggested certain dates for bargaining
sessions, but Burke told him that Loftis was unavailable on
those dates. Nevertheless, Cohen sent a letter to Respond-
ent’s attorney on June 27, 1990. The letter, which was sent
by telecopier and mail, stated Cohen’s intent to begin nego-
tiations. He suggested meeting on July 2, 5, 6, or 9, dates
which he had already been told were unacceptable. The letter
invited Loftis to offer alternative dates if those were not ac-
ceptable.
By letter dated June 29, Burke offered five dates in mid-
July for bargaining. The letter also stated that Loftis ‘‘has
been waiting for an initial proposal from the Union since
May 24, 1990,’’ but has not received such a proposal.
87GERRINO RESTAURANT
Cohen stated that when he received that letter, he phoned
Loftis’ office and told her secretary that the dates were ac-
ceptable, and he asked her to get back to him. He did not
send a letter confirming that phone call. Cohen further stated
that he received no return phone call or letter from Respond-
ent attorney’s office confirming any of those dates.
Burke, on the other hand, testified that after sending her
letter of June 29, she received no communication from
Cohen.
The mid-July dates came and went, with no communica-
tion from either side. Cohen, although allegedly having told
Loftis’ secretary that the dates were acceptable, did not fol-
low the matter up until September 10. Respondent’s attorney,
allegedly not hearing from Cohen, was content to let the
matter ride until she heard again from Cohen.
On September 10, Cohen sent a letter to Loftis, suggesting
dates in early October. Included in the letter was a proposed
collective-bargaining agreement.
On September 11, Loftis called Cohen and left word that
she would be out of town during the period that Cohen sug-
gested for bargaining.
On September 25, Loftis sent a letter to Cohen, which stat-
ed that she was available on 6 days in mid-October. Loftis’
letter also noted that no reply was received to Burke’s letter
of June 29.
Cohen called Loftis’ office and a first bargaining meeting
was arranged for October 19.
On October 19, Loftis appeared at the meeting and pre-
sented the following letter to Cohen and the union officials
who were present:
My client has received unsolicited information which
serves to indicate that the majority of its employees do
not desire to be represented by Local 69, H.E.R.E.
This information, in combination with the inability of
the Union to arrange or respond to the restaurant’s ear-
lier requests to schedule negotiation dates, appears to
indicate that the basis for bargaining is no longer via-
ble. Consequently, the company does not wish to bar-
gain at this time. Quite obviously, we anticipate that the
NLRB will wish to inquire further. We welcome such
action.
Cohen told Loftis that her client was playing a ‘‘game,’’
and attempted to have her bargain, but Loftis refused, saying
that she had no authority to negotiate, and could not and
would not do so.
Thereafter, no bargaining sessions were scheduled or held.
A. Respondent’s Defenses
Respondent argues that it had a good-faith doubt that the
Union represented a majority of its employees. It obtained
such a doubt when a majority of its employees told its vice
president, Angelica Cerrone, that they did not wish to be rep-
resented by the Union. Respondent also argues that the
Union was not diligent in seeking bargaining. Accordingly,
Respondent contends that it properly refused to bargain with
the Union on October 19.
Cerrone testified that on about April 28, 1990, at about the
time she agreed to bargain with the Union, a fire destroyed
part of the restaurant. The establishment was closed until
May 13, when the first level was reopened. Thereafter, the
entire restaurant was reopened for business on July 1.
Cerrone testified that on July 28, 1990, when she posted
the Board notice pursuant to the settlement agreement, em-
ployees asked her questions about it. She explained that the
notice was sent by the Board, and that Respondent was re-
quired to bargain with the Union. She advised them that if
they had other questions, they should contact the Board. She
testified generally that they said they were not interested in
the Union and they would have nothing to do with it. She
told them that it was not up to her, and that they should con-
tact the Board.
Eight unit employees testified.
Ricardo Hernandez and Jose Chavez both testified that
they did not speak to any Respondent official concerning
whether they wanted the Union to represent them.
Felieb Fouaud: Fouaud testified that when the notice was
posted in July, he approached Cerrone and asked her what
it was. She said that it was related to the Union. Fouaud re-
plied that he did not want it, he believed that there was no
need for it, and that she could consider him out of it.
Cerrone testified that when she posted the notice, Fouaud
told her that he did not want to be involved in this ‘‘non-
sense,’’ and wanted nothing to do with it. Cerrone told him
that it was out of her hands, and they should contact the
Board if they had a problem. Fouaud replied that he would
not cooperate and did not want the Union.
Rinaldo Hernandez: Hernandez testified that when the no-
tice was posted, he approached Cerrone and asked what it re-
lated to. She said it concerned the Union. He stated that he
did not understand it. He told Cerrone that he did not want
the Union, adding that he did not want to be involved with
any problems.
Sammy Mahmoud: Mahmoud, employed by Respondent
for about 11 years, testified that some time after the fire in
April 1990, he initiated a conversation with Cerrone, and told
her that he did not want the Union to represent him, which
was his own decision. Mahmoud further stated that he re-
ceived three to four phone calls from the Board. The Board
agent asked him to appear at the Board’s offices to give tes-
timony. Since his wife does not speak English well, he put
his telephone answering machine on because he did not wish
to be bothered, and told Cerrone that he did not want to ‘‘go
ahead with this thing.’’ He also told the Board agent that he
did not want the Union. He received one phone call from
Union Business Agent Ray Marten.
Cerrone testified that Mahmoud spoke to her when the no-
tice was posted in July, and again in September. In Sep-
tember, Mahmoud called her at home and told her that he
told Marten that he was not interested and would not cooper-
ate. Marten testified that in September, he phoned Mahmoud
to inform them of the upcoming negotiation, and to inquire
about employee morale. Mahmoud told him that some of the
employees were afraid.
David Marroquin: Marroquin, a waiter, testified that fol-
lowing the fire, he spoke to Gerrino Razza, Respondent’s
president, and told him he wanted nothing to do with the
Union. Marroquin stated that he did not want the Union be-
cause he did not understand the benefits that were available
from the Union, and he wished to work in peace with Re-
spondent and his friends at work. He further stated that the
Union phoned him once. He told Cerrone and Razza, twice,
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that he did not want the Union, the last conversations being
after the fire. One of the conversations occurred when the
notice was posted.
Trancito Marroquin: Trancito Marroquin testified that after
the notice was posted in July 1990, he initiated a conversa-
tion with Cerrone, and told her that all the employees, in-
cluding him, did not want the Union in the restaurant. In Oc-
tober 1990, he told Cerrone that all the employees had
agreed that they were not interested in having the Union
come into the restaurant. Cerrone testified that Marroquin
told her that he changed his phone number because he want-
ed to have privacy, and did not want any calls from the
Union because he was not interested in the Union.
Miguel Orantez: Orantez, a waiter, testified that after the
restaurant reopened subsequent to the fire, he approached
Cerrone and told her that he did not want the Union.
B. Respondent’s Payroll and Further Events
In the week ending October 19, when Respondent refused
to bargain with the Union, it employed 11 employees, 8 of
whom testified here. The other three employees are John
Campoverde, Freddy Galaia, and Ciro Guzman, as to whom
there was no testimony concerning their union sentiments.
The 8 employees are part of the 14 employees who were em-
ployed in about August 1989, when the prior charge was
filed.
It should be noted that 12 employees were employed im-
mediately before the fire, which occurred on April 28, 1990.
Cerrone testified that after she posted the notice on July
28, all the waiters approached her within the next few days
and asked her what it was about. She told them that as part
of a settlement agreement, Respondent was required to bar-
gain with the Union. She testified generally that the waiters
responded that they were not interested, and would have
nothing to do with it. She replied that it was not up to her,
and that they should contact the Board if they had any ques-
tions.
Cerrone testified specifically about Marcos Jimenez, a bar-
tender, who left Respondent’s employ in late September
1990. She stated that he told her that the Union called him
several times, and that he did not need the ‘‘pressure.’’ He
also told her that he did not want to get involved and was
not interested in what was happening.
Cerrone also testified generally that waiter Tito Freier was
part of the group of waiters, as was Jose Chavez, who said
that they did not want the Union. However, in view of Cha-
vez’ definite testimony that he had no discussion with any
Respondent official concerning the Union, I do not credit
Cerrone’s testimony concerning Chavez.
Cerrone testified that after July 1990, every employee ap-
proached her, and spoke to her as set forth above. Following
those conversations, she believed that a majority of employ-
ees no longer wished to be represented by the Union. She
waited until late September, when her father, Gerrino Razza,
Respondent’s president, returned from Italy where he was va-
cationing, to discuss this matter with him. In addition, al-
though she was aware of the employees’ disinterest in the
Union she did not mention this to her attorney until early
October, after she spoke to her father, although she spoke to
counsel weekly during that period, and knew that her attor-
ney was arranging bargaining meetings with the Union.
On September 25, Respondent Attorney Loftis sent a letter
to Union Attorney Cohen suggesting various bargaining
dates.
In the first week in October, Cerrone told Loftis that she
believed that she should not have to bargain with the Union
because all Respondent’s employees told her that they were
not interested in the Union. They determined that Respondent
would refuse to bargain with the Union.
On October 15, Cohen called Loftis’ office, and a bar-
gaining session for October 19 was agreed on.
As set forth above, on October 19, Loftis appeared at the
meeting, and presented a letter which stated that Respondent
refused to bargain with the Union because it had received in-
formation which indicated that a majority of its employees
do not wish to be represented by the Union, and for the fur-
ther reason that the Union had been unable to arrange or to
respond to the Respondent’s previous requests to schedule
negotiation dates.
C. Analysis and Discussion
The complaint alleges that Respondent refused to bargain
by withdrawing recognition from the Union at a time when
it did not have a good-faith doubt as to the Union’s majority
status based on objective considerations.
In Poole Foundry & Machine Co., 95 NLRB 34, 36
(1951), the Board considered this issue and stated:
It is well settled that after the Board finds that an em-
ployer has failed in his statutory duty to bargain with
a union, and orders the employer to bargain, such an
order must be carried out for a reasonable time there-
after without regard to whether or not there are fluctua-
tions in the majority status of the union during that pe-
riod. Such a rule has been considered necessary to give
the order to bargain its fullest effect, i.e., to give the
parties to the controversy a reasonable time in which to
conclude a contract. Similarly, a settlement agreement
containing a bargaining provision, if it is to achieve its
purpose must be treated as giving the parties thereto a
reasonable time in which to conclude a contract. We
therefore hold that after providing in the settlement
agreement that it would bargain with the Union, the Re-
spondent was under an obligation to honor that agree-
ment for a reasonable time after its execution without
questioning the representative status of the Union.
Respondent admits that on April 28, 1990, it agreed to rec-
ognize and bargain with the Union. The settlement agreement
requiring bargaining between the parties was approved by the
Regional Director on July 25, 1990, and Respondent with-
drew recognition on October 19, 1990.
‘‘It is well settled that a settlement agreement containing
bargaining provisions must be complied with for a reason-
able time. The test for determining what is and what is not
a reasonable period of time is ‘what transpires during the
time period under scrutiny rather than the length of time
elapsed.’’’ King Soopers, Inc., 295 NLRB 35 at 37 (1989).
The factors the Board considers in determining what con-
stitutes a reasonable period of time for bargaining include
whether (a) the parties are bargaining for a first contract; (b)
the employer engaged in meaningful good-faith negotiations
over a substantial period of time; and (c) an impasse in nego-
89GERRINO RESTAURANT
tiations had been reached. VIP Limousine, 276 NLRB 871,
877 (1985).
Based on the facts, I must conclude that a reasonable pe-
riod of time for bargaining had not elapsed when Respondent
withdrew recognition and refused to bargain with the Union.
The period of time to be calculated has been held to be
the time between which the settlement agreement was ap-
proved and the withdrawal of recognition, because the obli-
gation to bargain formally arose only when the settlement
agreement was approved. King Soopers, supra. Here, nearly
3 months elapsed between the time the settlement agreement
was approved and Respondent’s withdrawal of recognition.
Even if the earliest possible time that Respondent could be
deemed to have an obligation to bargain with the Union—
from April 28, 1990, when it agreed to recognize and bar-
gain—to October 19 when it withdrew recognition, a period
of 6 months, it cannot be said that a reasonable period of
time for bargaining had elapsed.
Here, the parties attempted negotiations toward a first con-
tract. The only negotiations which may be said to have oc-
curred were the Union’s transmittal of its proposed contract
to Respondent. No meaningful negotiations took place at all.
In fact, at the first scheduled negotiating session on October
19, when the Union’s attorney and officials were present and
ready to bargain, Respondent appeared with a letter in which
it withdrew recognition and refused to bargain. In fact, Re-
spondent’s attorney stated at that meeting that she had no au-
thority to bargain and would not and could not do so. Obvi-
ously, no impasse in negotiations had been reached. In fact,
negotiations had not yet even begun.
Under these circumstances, considering what occurred dur-
ing the time in question, and not the mere lapse of time,
when even the first bargaining session was met by a with-
drawal of recognition, it must be concluded that a reasonable
period of time for bargaining had not elapsed.
Respondent argues that a reasonable period of time for
bargaining has elapsed. It contends that much of the delay
within the period of time at issue was caused by the Union,
which indicated an unwillingness or lack of interest in bar-
gaining. As proof of this, Respondent relies on its letter of
June 29, sent to Union Attorney Cohen, offering certain dates
for bargaining. Cohen testified that he phoned Respondent’s
attorney and advised its secretary that all such dates were
available to him. Burke denied that Loftis’ office received
such a call, and I credit Burke. The mid-July dates suggested
by Burke and admittedly accepted by Cohen went by without
any communication from Cohen. He sent no letter con-
firming the dates, and finally when Loftis sent a letter on
September 25 confirming new dates, she noted that Cohen
had not responded to the June 29 letter. That accusation went
without comment by Cohen which leads me to believe that
he did not respond to that letter. Respondent also contends
that Cohen’s earlier letter setting forth bargaining dates
which he knew were not acceptable to Respondent is further
evidence of the Union’s dilatory tactics which should lead to
the conclusion that a reasonable period of time for bargaining
has elapsed.
Nevertheless, I find that Cohen’s actions, including the 2-
1/2-month delay between Burke’s June 29 letter and Cohen’s
September 10 letter offering new dates for bargaining is not
fatal to General Counsel’s case. The setting of a bargaining
date was not unreasonably delayed by the Union. In fact,
Cohen’s first request for bargaining was sent 1 month before
the settlement agreement was approved by the Regional Di-
rector. Cohen did communicate with Loftis’ office as I have
found above, in an effort to reach a mutually agreeable first
bargaining date. The delay between June 29 and September
10 was unfortunate, but 10 delays of this type in agreeing
to a bargaining session are not uncommon in labor relations,
and there was no showing that Respondent was prejudiced
by this delay. Driftwood Convalescent Hospital, 302 NLRB
586 (1991). In fact, Loftis was unavailable at certain times
due to being out of State, and when her law offices were
moved.
I accordingly cannot find that the Union’s alleged delay in
seeking negotiations was unreasonable or that it relieved Re-
spondent of its obligations under Poole.
Respondent also argues that it properly withdrew recogni-
tion from and refused to bargain with the Union because it
had a good-faith doubt, based on objective considerations,
that the Union represented a majority of its employees.
The Board has held that before it may consider that issue,
a finding must first be made that a reasonable period of time
for bargaining has elapsed. Driftwood Convalescent Hospital,
302 NLRB 586 (1991).
We need not decide whether the employee petition
could support a good-faith doubt as to the Union’s ma-
jority status or a finding of no majority in fact. A rea-
sonable time for bargaining had not elapsed. Absent a
threshold finding that a reasonable time for bargaining
has elapsed, evidence of actual employee disaffection
with the Union is irrelevant. [Textron, Inc., 300 NLRB
1124 at 1133 (1990), citing Royal Coach Lines, 282
NLRB 1037, 1038 (1987).]
Inasmuch as I have found that a reasonable time for bar-
gaining has not elapsed, I therefore find and conclude that
Respondent was not privileged to question the Union’s ma-
jority status in October 1990, and its withdrawal of recogni-
tion and refusal to bargain violated Section 8(a)(5) and (1)
of the Act.
Assuming arguendo, that in October 1990, when Respond-
ent withdrew recognition and refused to bargain with the
Union, the Union enjoyed only a rebuttable presumption of
majority support, such presumption can be rebutted if:
The employer affirmatively establishes either (1) that at
the time of the refusal the union in fact no longer en-
joyed majority representative status, or (2) that the em-
ployer’s refusal was predicated on a good-faith and rea-
sonably grounded doubt of the union’s continued ma-
jority status. As to the second of these, i.e., ‘‘good-faith
doubt,’’ two prerequisites for sustaining the defense are
that the asserted doubt must be based on objective con-
siderations and it must not have been advanced for the
purpose of gaining time in which to undermine the
union. [King Soopers, Inc., 295 NLRB 35 at 38 (1989),
citing Terrell Machine Co., 173 NLRB 1480, 1481
(1969).]
Respondent argues that it had an objectively based good-
faith doubt that the Union represented a majority of its em-
ployees when it withdrew recognition on October 19. It bases
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
its assertion on the conversations between Cerrone and Re-
spondent’s employees, as set forth above.
Some suspicion is raised as to why Cerrone did not imme-
diately contact her attorney and give her this information.
After all, Cerrone knew at that time that Loftis’ office was
arranging a first bargaining meeting. Nevertheless, Cerrone’s
explanation, that she was awaiting the return from Italy of
Respondent’s president, was reasonable. Shortly after his re-
turn and their discussion of what occurred that summer,
Cerrone contacted Loftis with the information she had con-
cerning the employees’ disinterest in the Union.
On October 19, the unit consisted of 11 employees. ‘‘The
relevant date at which to consider the bona fides of the em-
ployer’s doubts is the date that recognition is withdrawn.’’
NLRB v. Flex Plastics, 726 F.2d 272, 275 (6th Cir. 1984).
Accordingly, Cerrone’s testimony concerning Marcos Ji-
menez, who left Respondent’s employ in September 1990,
and Tito Freier, who was not employed at the time of with-
drawal of recognition, is irrelevant. Even if Cerrone’s testi-
mony concerning Jimenez should be considered, Jimenez did
not state unequivocally that he did not wish to be represented
by the Union. Rather, he told Cerrone that he did not need
the pressure, did not want to get involved, and was not inter-
ested. These vague comments do not amount to a desire not
to be represented by the Union. Similarly, there was no di-
rect testimony concerning what, if anything, Freier specifi-
cally told Cerrone.
Of the 11 employees, 8 testified here. Two, Chavez and
Ricardo Hernandez, testified that they spoke to no Respond-
ent official concerning the Union. Respondent relies on the
testimony of the remaining six to support its good-faith
doubt in the Union’s representational status. I find, in agree-
ment with Respondent, that on October 19, it had a good-
faith doubt as to whether the Union represented a majority
of its employees. Thus, six employees testified, as set forth
above, that each approached Cerrone shortly after the settle-
ment agreement was posted in late July 1990, and told her
that he did not want the Union. I am aware that Rinaldo Her-
nandez stated that he did not understand the notice, and
David Marroquin testified that he did not understand the
Union’s benefits, which may cast some doubt on their rea-
sons for not wanting the Union. However, it does not appear
that they expressed those reasons to Cerrone. Rather, they
unequivocally told her that they did not want the Union to
represent them. I accordingly find that such expressions
properly caused Cerrone to have a good-faith doubt that the
Union represented a majority of Respondent’s employees.
I do not regard as probative, the General Counsel’s sug-
gestion that prior to the settlement agreement, certain em-
ployees were allegedly subject to various interference with
their Section 7 rights. These matters were settled as set forth
in the settlement agreement, and no charge, other than the in-
stant refusal to bargain charge, had been filed thereafter.
CONCLUSIONS OF LAW
1. Respondent Gerrino, Inc. d/b/a Gerrino Restaurant is an
employer within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Hotel Employees and Restaurant Employees Union,
Local 69, AFL–CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining:
All full time employees including kitchen employees,
chef, bartenders, waiters, waitresses, bus boys, cooks
and dishwashers, employed at its Hoboken, New Jersey
facility, but excluding all office clerical employees, pro-
fessional employees, guards, and supervisors as defined
in the Act, and any individuals employed by parent or
spouse.
4. At all times since July 28, 1990, the Union has been
and is currently the exclusive collective-bargaining represent-
ative of the employees in the aforesaid appropriate unit for
the purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. Respondent, by withdrawing recognition from the Union
on October 19, 1990, and by failing and refusing to recog-
nize and bargain with the Union as the exclusive collective-
bargaining representative of the employees in the appropriate
unit since that date, has violated Section 8(a)(5) and (1) of
the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, it is recommended that it be
ordered to cease and desist therefrom, and take certain af-
firmative action which is necessary to effectuate the policies
of the Act.
Ordinarily, in cases of this type, Respondent is ordered to
bargain in good faith with the Union for a reasonable, but
unspecified time. However, the General Counsel amended
the complaint to set forth its request for an order requiring
Respondent to bargain in good faith with the Union, on re-
quest, for a reasonable period of time construed as at least
6 months.
I find this request to be proper under the circumstances of
this case. I have found that a reasonable period of time for
bargaining had not elapsed, notwithstanding that nearly 3
months had gone by from the time the settlement agreement
was approved until the withdrawal of recognition. Here, fol-
lowing Respondent’s agreement to bargain in good faith with
the Union, only one bargaining meeting was scheduled, and
at that meeting Respondent withdrew recognition from the
Union and refused to bargain with it. In this case, especially
where no bargaining at all has taken place, and inasmuch as
the parties will be attempting to arrive at a first contract, it
is imperative that a specific time be set forth in order to en-
able the parties to have the fullest opportunity to bargain in
good faith toward an initial agreement.
I will accordingly recommend that the parties be required
to bargain for a reasonable period of time to be construed
as at least 6 months.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
91GERRINO RESTAURANT
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Gerrino, Inc. d/b/a Gerrino Restaurant,
Hoboken, New Jersey, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Withdrawing recognition from and refusing to bargain
collectively in good faith concerning wages, hours, and other
terms and conditions of employment with Hotel Employees
and Restaurant Employees Union, Local 69, AFL–CIO as the
exclusive collective-bargaining representative of its employ-
ees in the following appropriate collective-bargaining unit:
All full time employees including kitchen employees,
chef, bartenders, waiters, waitresses, bus boys, cooks
and dishwashers, employed at its Hoboken, New Jersey
facility, but excluding all office clerical employees, pro-
fessional employees, guards, and supervisors as defined
in the Act, and any individuals employed by parent or
spouse.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, recognize and bargain collectively in good
faith with Hotel Employees and Restaurant Employees
Union, Local 69, AFL–CIO as the exclusive collective-bar-
gaining representative of the employees in the bargaining
unit found appropriate above, for a reasonable period of time
consisting of not less than 6 months, with respect to their
wages, hours of work, and other terms and conditions of em-
ployment, and if an agreement is reached, embody it in a
signed contract.
(b) Post at its facility copies of the attached notice marked
‘‘Appendix.’’2 Copies of the notice, on forms provided by
the Regional Director for Region 22, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places 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.
(c) 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT withdraw recognition from and refuse to
bargain collectively in good faith concerning wages, hours,
and other terms and conditions of employment with Hotel
Employees and Restaurant Employees Union, Local 69,
AFL–CIO as the exclusive collective-bargaining representa-
tive of our employees in the following appropriate collective-
bargaining unit:
All full time employees including kitchen employees,
chef, bartenders, waiters, waitresses, bus boys, cook and
dishwashers employed at our Hoboken, New Jersey fa-
cility, but excluding all office clerical employees, pro-
fessional employees, guards, and supervisors as defined
in the Act, and an individuals employed by parent or
spouse.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request, recognize and bargain collectively in
good faith with Hotel Employees and Restaurant Employees
Union, Local 69, AFL–CIO as the exclusive collective-bar-
gaining representative of the employees in the bargaining
unit found appropriate above, for a reasonable period of time
consisting of not less than 6 months, with respect to their
wages, hours of work, and other terms and conditions of em-
ployment and if an agreement is reached, embody it in a
signed contract.
GERRINO, INC. D/B/A GERRINO RESTAURANT