Mingtree Restaurant, Inc. d/b/a Forbidden City Restaurant

National Labor Relations Board - Board Decisions

Nov 16, 1982

265 N.L.R.B. 409 (N.L.R.B. 1982)

FORBIDDEN CITY RESTAURANT
Mingtree Restaurant, Inc. d/b/a Forbidden City
Restaurant and Hotel, Motel, Restaurant Em-
ployees and Bartenders International Union,
Local 20, AFL-CIO. Case 19-CA-13092
November 16, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 29, 1982, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. The General Coun-
sel filed a brief in opposition thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Mingtree Restaurant, Inc. d/b/a Forbidden City
Restaurant, Puyallup, Washington, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph 1(a) and re-
letter the subsequent paragraphs accordingly:
"(a) Polling or otherwise interrogating its em-
ployees to ascertain their union views in the ab-
I Respondent has requested oral argument. This request a hereby
denied as the record, the exceptions, and the briefs adequately present the
ums and the positions of the parties.
a The Administrative Law Judge correctly placed primary reliance on
Jacksxom Sportsear Corpoaton, 211 NLRB S91, fn. 3 (1974) for his find-
ing that Respondent violated Sec. 8(aXI) and (5) by polling its employees
at a time when it did not posse sufficient objective evidence to support
a reasonble doubt of the incumbent Union's majority status. Tbe Admin-
istrative Law Judge, however, also cites Taft Bradcarg WDAF-TEV
AM-FM, 201 NLRB s01 (1973), to support a proposition analogous to the
contrary of his finding. We distinguish Taft. There the outcome of an em-
ployee poll was but one factor underlying the Boud's finding that the
employer had a sufficient bami for doubt of the union's majority status at
the time recognition was withdrawn. Here, the factorn relied on by Re-
spondent as indicatin · lack of majority support are insufficient to justify
the taking of the poll itself in the first instance.
· We shall modify the provisions of the Administrative Law Judge's
recommended Order to provide a cease-and-desit remedy for the 8(aXl)
and (5) violations found by him with respect to Respondent's polling of
its employees.
265 NLRB No. 52
sence of objective considerations warranting a rea-
sonable doubt of the Union's continuing status as
the collective-bargaining representative of the ma-
jority of its employees."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT poll our employees or other-
wise ask them about their union views in the
absence of objective considerations warranting
a reasonable doubt of the Union's continuing
status as the collective-bargaining representa-
tive of the majority of our employees.
WE WILL, upon request, bargain collectively
concerning rates of pay, wages, hours of em-
ployment, and other terms and conditions of
employment with Hotel, Motel, Restaurant
Employees and Bartenders International
Union, Local 20, AFL-CIO, as the exclusive
representative of all the employees in the ap-
propriate unit described below. If an agree-
ment is reached, we will, on request, sign such
an agreement. The appropriate unit is:
All employees at our Puyallup, Washington,
restaurant but excluding clericals, janitors,
managers, owners, supervisors and guards as
defined in the Act.
MINGTREE RESTAURANT, INC. D/B/A
FORBIDDEN CITY RESTAURANT
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge:
On December 22, 1981, the parties jointly served upon
the Deputy Chief Administrative Law Judge a motion
for transfer and stipulation of facts. Thereafter, on Janu-
ary 14, 1982, an order granting the motion was issued by
me, and a date for the filing of briefs was set. Pursuant
to the foregoing motion and order, this matter was sub-
mitted to me for decision, the parties having waived a
hearing.
The charge was filed on December 29, 1980, by Hotel,
Motel, Restaurant Employees and Bartenders Interna-
tional Union, Local 20, AFL-CIO (herein called the
Union). Thereafter, on April 8, 1981, the Acting Region-
al Director for Region 19 of the National Labor Rela-
tions Board (herein called the Board) issued a complaint
and notice of hearing alleging a violation by Mingtree
Restaurant, Inc. d/b/a Forbidden City Restaurant
409
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(herein called Respondent), of Section 8(a)(l) and (5) of
the National Labor Relations Act, as amended (herein
called the Act).
Following the submission of this matter to me, both
counsel for the General Counsel and counsel for Re-
spondent, on February 25, 1982, filed briefs in support of
their respective positions.
Upon the entire stipulated record, and consideration of
the briefs submitted, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Washington corporation engaged in
the restaurant business in Puyallup, Washington. In the
course and conduct of its business operations, Respond-
ent has annual gross sales in excess of $500,000, and an-
nually purchases goods and materials in excess of $50,000
directly from sources outside the State of Washington, or
from suppliers within said State which in turn obtained
such goods and materials directly from sources outside
the State. It is admitted, and I find, that Respondent is,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The principal issue raised by the pleadings is whether
Respondent has violated Section 8(a)(l) and (5) of the
Act by withdrawing recognition from the Union, con-
ducting a private poll of its employees' desire for contin-
ued union representation, and thereafter refusing to bar-
gain with the Union as the exclusive collective-bargain-
ing representative of its employees.
B. The Facts
The stipulated facts herein are, in pertinent part, as fol-
lows:
The Union was voluntarily recognized by Respondent
at one of its Chinese restaurants known as the Forbidden
City Restaurant in Puyallup, Pierce County, Washington.
Prior to this voluntary recognition in 1971 and thereaf-
ter, the employees of the Forbidden City Restaurant had
never expressed a desire to be represented by the Union,
no election was ever held to determine whether the
Union would be the representative of the employees, no
request to bargain was received, and no authorization
cards were signed.
After initial recognition in 1971, Respondent became a
"me-too" signer of successive collective-bargaining
agreements negotiated by the Union and the Pierce
County Restaurant Owners Association. These succes-
sive agreements contained union-security clauses requir-
ing compulsory union membership or discharge, together
with provisions for various pension and health and wel-
fare trusts funded by per-hour contributions by Respond-
ent. The most recent agreement expired on August 1,
1980.
In late July or early August 1980, O. W. Hollowell
was retained as labor counsel for Respondent. On
August 13, 1980, Hollowell met with representatives of
the Union and informed the Union of his authorization to
negotiate for Respondent as well as another restaurant
operated by the Great Orient West Corporation, not in-
volved herein. The parties exchanged proposals and
agreed to meet again on September 8, 1980.
On September 5, 1980, an RM petition was filed on
behalf of the Great Orient West Corporation (Case 19-
RM-1664). At the meeting on September 8, 1980, the
parties agreed to further suspend negotiations pending
resolution of the Great Orient West Corporation's RM
petition. On October 24, 1980, an RM petition was filed
on behalf of Respondent (Case 19-RM-1668).
In early November 1980, Respondent was informed by
Regional Office that its RM petition was going to be dis-
missed for insufficient objective considerations. This peti-
tion was subsequently withdrawn by Respondent.The in-
sufficient objective considerations submitted by Respond-
ent included affidavits of the manager and floor manager
of the restaurant stating in essence that:
(1) Only 20%-30% of the employees were
union members;
(2) Eight (8) cooks and six (6) waitresses, out of a
work force of about 28 employees, expressed strong
anti-union sentiments;
(3) Increased reports of anti-union sentiments;
(4) High employee turnover;
(5) No grievance history.
On November 9, 1980, the Union made a written re-
quest to Respondent for a renewal of bargaining. On De-
cember 5, Respondent caused a secret-ballot election to
be conducted at Respondent's premises by the Certified
Public Accounting firm of Hubbard & O'Connor. There
were 26 employees eligible to vote; 8 voted for the
Union, 14 voted against the Union, and 4 did not vote.
There is no contention of impropriety regarding the
manner in which the employees were apprised of the
election, or in the conduct of the election or tally of bal-
lots.
On December 8, 1980, Hollowell informed the Union
that bargaining would proceed on behalf of the Great
Orient West Corporation but that Respondent herein re-
fused to bargain further with the Union because the
above poll indicated the Union failed to represent a ma-
jority of its employees. At all times since, Respondent
has refused to bargain with the Union for a contract cov-
ering its employees.
C. Analysis and Conclusions
The applicable law governing an employer's with-
drawal of recognition is succinctly summarized in United
Supermarkets, Inc., 214 NLRB 958 (1974), enfd. 524 F.2d
239 (5th Cir. 1975). There, the Board states:
410
FORBIDDEN CITY RESTAURANT
On the basis of well-established law, the Union's
contractual relations give rise to a presumption of
majority status that continues after the expiration of
the contract. In the face of this presumption, Re-
spondent's withdrawal of recognition must be found
unlawful unless (1) competent evidence established
that the Union no longer commanded a majority as
of date of Respondent's refusal to bargain, or (2)
Respondent had a reasonable doubt based on objec-
tive facts as to the Union's continuing majority
status. A showing of such doubt requires more than
an employer's mere assertion of it, and more than
proof of the employer's subjective frame of mind.
The assertion must be supported by objective con-
siderations, that is, some substantial and reasonable
grounds for believing the union has lost its majority
status.
The crucial question is whether a majority of em-
ployees have expressed dissatisfaction with the
Union as their collective-bargaining representative
The thrust of Respondent's defense is predicated upon
its initial recognition of the Union in 1971 and the simul-
taneous entering into a contract containing a union-secu-
rity clause. Thus, Respondent, contending that the Union
was unlawfully recognized in 1971, argues that the main-
taining of a contract with a minority union which con-
tains a union-security clause constitutes a continuing vio-
lation of the Act and creates a presumption that any sub-
sequent acquisition of majority status is attributable to
the earlier improper recognition.
This precise argument has been clearly rejected, and it
has been consistently held that an employer may not
withdraw recognition from a union based on an unlawful
recognition which occurred outside the 6-month statute-
of-limitations period as set forth in Section 10(b) of the
Act. Local Lodge No. 1424, International Association of
Machinists, AFL-CIO [Bryan Manufacturing Co.] v.
N.LR.B., 362 U.S. 411 (1960); North Bros Ford, Inc.,
220 NLRB 1021 (1975), and cases cited therein; Tahoe
Nugget, Inc. d/b/a Jim Kelley's Tahoe's Nugget, 227
NLRB 357 (1976), enfd. 584 F.2d 293 (9th Cir. 1978);
Morse Shoe. Inc., 231 NLRB 13 (1977), enfd. 591 F.2d
542 (9th Cir. 1979). Thus, Respondent's argument is
clearly without merit.
Respondent does not contend in its brief that the ob-
jective considerations enumerated in the above stipula-
tion of facts were legally sufficient to support a reason-
able doubt as to the Union's continuing majority status,
or that the Regional Director erred in concluding that
the RM petition should be dismissed because of a defi-
ciency in Respondent's proffered objective consider-
ations. Indeed, Respondent elected not to except to the
Regional Director's determination, and withdrew its peti-
tion upon being advised that, absent withdrawal, the pe-
tition would be dismissed.
Moreover, clear case precedent establishes that certain
factors relied on by Respondent to show loss of union
majority are insufficient to warrant the withdrawal of
recognition. Thus, neither a showing that less than a ma-
jority of employees are members of an incumbent
union,' high employee turnover, 2 or the mere fact that
there has been "no grievance histroy,"3 provides the
necessary degree of evidence.
The stipulation of facts includes the following:
The insufficient objective considerations submitted
by the Employer included affidavits of the manager
and floor manager of the restaurant stating in es-
sence that:
(2) Eight (8) cooks and six (6) waitresses, out of a
work force of about 28 employees, expressed strong
anti-union sentiments;
(3) Increased reports of anti-union sentiments;
Regarding the foregoing stipulation, counsel for the
General Counsel states in his brief:
. . . Although the affidavits of Respondent's man-
ager and floor manager indicate that eight cooks
and six waitresses expressed strong anti-union senti-
ments, their affidavits did not state what those state-
ments were. Accordingly, the Regional Director
was correct in determining that such self serving
statements by Respondent's supervisory personnel
were insufficient to support a good faith doubt of
the Union's majority status.
It appears that under the present state of Board law,
an employer has sufficient objective considerations to
withdraw recognition from a union when at least 50 per-
cent of the unit employees have voluntarily expressed
antiunion sentiments which, collectively, may be deemed
to raise a reasonable doubt regarding the Union's con-
tinuing majority status. White Castle System, Inc., 224
NLRB 1089 (1976); Faye Nursing Home, Inc., d/b/a
Green Oak Manor, 215 NLRB 658, 664 (1974); Sierra De-
velopment Company d/b/a Club Cal-Neva, supra.
As noted above, Respondent's brief is silent on this
matter, and offers no guidance regarding how the fore-
going stipulation should be interpreted or construed, or
its significance to Respondent's defense. Upon carefully
considering this particular matter, I conclude that the
statements contained in the managers' affidavits to the
effect that half the unit employees expressed strong an-
tiunion sentiments should be construed as tantamount to
allegations, but not proof, of the alleged facts contained
therein. I therefore conclude that Respondent has not
sustained its burden of proof in this regard.
I Petroleum Contractors Inc., 250 NLRB 604, 607 (1980), enfd. 659
F.2d 1069 (3d Cir. 1981); Terrell Machine Company., 173 NLRB 1480
(1969), enfd. 427 F.2d 1088 (4th Cir. 1970), cert. denied 398 U.S. 929;
United Aircraft, 169 NLRB 480 (1967).
2 Printers Service. Inc.. Photo-Composition Service. Inc., 175 NLRB 809
(1969), enfd. 434 F 2d 1049 (6th Cir. 1970).
' Sierra Development Company d/b/a Club Cal-Neva, 231 NLRB 22
(1977), enfd. 604 F.2d 606 (9th Cir. 1979).
411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having arrived at this conclusion, I therefore find that
the poll conducted by Respondent, albeit under the
guidelines of Struksnes Construction Company, Inc., 165
NLRB 1062 (1967), was unlawful, as Respondent did not
have sufficient objective considerations upon which to
base a reasonable doubt of the Union's majority status
prior to conducting the poll. See Jackson Sportswear Cor-
poration, 211 NLRB 891, fn. 3 (1974); Montgomery Ward
& Co., Incorporated, 210 NLRB 717 (1974); Mid-Conti-
nent Refrigerated Service Company, 228 NLRB 917, fn. 2
(1977). But cf. Taft Broadcasting WDAF-TVE AM-FM,
201 NLRB 801, 803 (1973).
Respondent, in its brief, does not take issue with the
appropriateness of the alleged bargaining unit. It is clear
and I find that the bargaining unit, composed of all em-
ployees at the restaurant but excluding clericals, janitors,
managers, owners, supervisors and guards as defined in
the Act, is appropriate for the purposes of collective bar-
gaining. Indeed, it has been recognized as such by Re-
spondent over a- 10-year period as reflected by a succes-
sion of collective-bargaining agreements.
On the basis of the foregoing, I find that the Respond-
ent has violated and is violating Section 8(a)(1) and (5) of
the Act, as alleged, by unlawfully conducting a poll of
its unit employees' desire for union representation, and
thereafter withdrawing recognition from the Union.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated and is violating Section
8(aXl) and (5) of the Act, as alleged.
THE REMEDY
Having found that Respondent violated and is violat-
ing Section 8(aX1) and (5) of the Act, I recommend that
it be required to cease and desist therefrom and that it
take certain affirmative action described below, designed
to effectuate the policies of the Act.
Based on the foregoing findings of fact, conclusions of
law, and the entire record herein, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 4
The Respondent, Mingtree Restaurant, Inc. d/b/a For-
bidden City Restaurant, Puyallup, Washington, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Hotel, Motel,
Restaurant Employees and Bartenders International
Union, Local 20, AFL-CIO, as exclusive bargaining rep-
resentative of all its employees at its Puyallup, Washing-
ton, restaurant, but excluding clericals, janitors, manag-
ers, owners, supervisors and guards as defined in the
Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively concerning rates
of pay, wages, hours of employment, and other terms
and conditions of employment with Hotel, Motel, Res-
taurant Employees and Bartenders International Union,
Local 20, AFL-CIO, as the exclusive representative of
all the employees in the appropriate unit described above
and, if an agreement is reached, embody it in a signed
contract.
(b) Post at its restaurant located in Puyallup, Washing-
ton, copies of the attached notice marked "Appendix."6
Copies of said notice, on forms provided by the Regional
Director for Region 19, after being duly signed by Re-
spondent's authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
B In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
412