Players Restaurant

National Labor Relations Board - Board Decisions

Dec 7, 1979

246 N.L.R.B. 863 (N.L.R.B. 1979)

THE PLAYERS RESTAURANT
Thomas Hoover and Dennis Loy d/b/a The Players
Restaurant and Culinary Workers, Bartenders and
Hotel Service Employees, Local 535, Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO. Cases 31-CA-7467 and 31-CA-
8083
December 7, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY. AND TRUESDAIE
On May 2, 1979, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, Respondents filed excep-
tions and a supporting brief, and the General Counsel
filed limited exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified below.
1. While we agree with the Administrative Law
Judge that Respondents violated Section 8(a)(5) and
(I) of the Act by, inter alia, refusing to abide by the
terms of the 1978-83 Council-Union contract, we find
it unnecessary to pass on his rationale for so conclud-
ing. Rather, we find that, whatever the effect of Re-
spondent's notice of withdrawal to the multiemployer
Council, Respondents' notice to the Union prior to
the commencement of negotiations did not constitute
an effective withdrawal under Retail Associates, Inc.,
120 NLRB 388 (1958), and its progeny. The Board, in
this regard, has consistently held that notice of with-
drawal from multiemployer bargaining must be clear
and unequivocal. It appears from the record that Re-
spondents' letter to the Union on January 26, 1978,
did not meet this standard. The letter simply in-
formed the Union that Respondents wished to termi-
nate the then-existing Council-Union contract upon
its expiration date, March 15, 1978. The letter did not
indicate an intention to withdraw from the multiem-
ployer unit or to act contrary to the multiemployer
Council. In fact, Respondents' desire to terminate the
then-existing contract was arguably consistent with
the multiemployer bargaining which ensued between
the Council and the Union. In this regard, as a result
of these multiemployer negotiations, the Council and
the Union allowed the then-existing contract to ex-
pire on March 15-as Respondents desired-and ex-
ecuted a new Council-Union contract which went
into effect immediately thereafter. This new agree-
ment runs until 1983. Accordingly, as we find that
Respondents did not give the Union a clear and un-
equivocal notice of its intention to withdraw from the
multiemployer unit, Respondents were bound by the
terms of the 1978-83 Council-Union contract. By re-
fusing to abide by this contract, Respondents thereby
violated Section 8(a)(5) and (1) of the Act.
2. In his limited exceptions, the General Counsel
contends, inter alia, that, while the Administrative
Law Judge properly found that Respondents violated
Section 8(a)(5) of the Act by failing to provide holi-
day pay for May 30, 1977, as required by the then-
governing contract, he failed to consider and find that
Respondents similarly violated the Act by not provid-
ing holiday pay for the Fourth of July 1977, Labor
Day 1977, Thanksgiving Day 1977, Christmas Day
1977, and New Year's Day 1978, also required by the
contract. We find merit in this exception. At the hear-
ing, Respondents stipulated that, from on and after
May 4, 1977, they refused to abide by certain provi-
sions of the contract then in effect, including the pro-
visions providing for holiday pay. This provision (art.
5) not only provided holiday pay for Memorial Day,
it also provided such pay for the Fourth of July, La-
bor Day, Thanksgiving Day, Christmas Day, and
New Year's Day. As this contract did not expire until
March 15, 1978, Respondents have admitted that
they failed to provide the required holiday pay for
those additional days set forth in the General Coun-
sel's exception. Accordingly, by this conduct, Respon-
dents violated Section 8(a)(5) of the Act.
3. The General Counsel also excepts to the Admin-
istrative Law Judge's failure to consider and find that
Respondent violated Section 8(a)(5) of the Act on or
about April 25, 1978, when they unlawfully withdrew
recognition from the Union. We find merit in this
exception. The Administrative Law Judge properly
found that Respondents violated Section 8(a)(5) of
the Act by refusing to abide by certain terms in their
contract with the Union which ran until March 15,
1978, and by refusing to abide by the successor con-
tract which runs until 1983. Clearly, therefore, Re-
spondent had an obligation to recognize and bargain
with the Union on April 25, 1978. As Respondents
stipulated that they did, in fact, withdraw recognition
from the Union on that date, we find that Respon-
dents' withdrawal of recognition, in these circum-
stances, violated Section 8(a)(5) of the Act.
4. The General Counsel further excepts to the in-
clusion of certain language in paragraph 2(e) in the
Administrative Law Judge's recommended Order
pertaining to the Union's trust fund. This paragraph
ordered Respondents to make whole the Union as
well as the Union's trust fund for any losses suffered
because of Respondents' unlawful conduct. Accord-
246 NLRB No. 120
863
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to the General Counsel, Respondents' unlawful
failure to make payments into the trust fund as re-
quired by the contract is adequately remedied by
paragraph 2(d), which orders Respondents to make
the employees whole for any losses suffered. We agree
with the General Counsel. Under the circumstances,
that portion of paragraph 2(e) dealing with the
Union's trust fund is unnecessary and likely inappro-
priate since the trust fund itself was not joined as a
party. The Order has been modified accordingly.'
AMENDED CONCLUSIONS OF L.AW
Based on the foregoing, the Board adopts the Ad-
ministrative Law Judge's Conclusions of' Law, as
modified below:
1. Add the following as paragraphs 5(f) and 5(g):
"(f) Failing to comply with article 5 of the 1973-
78 contract by refusing to provide holiday pay for the
Fourth of July 1977, Labor Day 1977, Thanksgiving
Day 1977, Christmas Day 1977, and New Year's Day
1978.
"(g) Withdrawing recognition from the Union as
the exclusive collective-bargaining representative of
its employees on April 25, 1978."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified and
set out in full below, and hereby orders that the Re-
spondents, Thomas Hoover and Dennis Loy d/b/a
The Players Restaurant, San Bernardino, California,
their agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with the
Union through Respondents' bargaining representa-
tive, Hotel and Restaurant Employers Council of San
Bernardino, California.
(b) Failing or refusing to comply with all the terms
and conditions of the 1973-78 and 1978 83 Council-
Union agreements from and after May 4, 1977.
(c) Failing or refusing to bargain with the Union at
its request, either directly or through the Council,
over the current bonus plan covering Respondents'
employees within the coverage of the currently effec-
tive Council-Union agreement.
I The General Counsel also excepts to the Administrative Law Judge's
failure to include in his recommended Order and notice certain provisions
necessary to fully remedy the unfair labor practices found. We find merit in
this exception. Additionally, we note that the Administrative Law Judge
inadvertently failed to include in his recommended Order and notice lan-
guage requiring Respondents to cease and desist from "in any like or related
manner" interfering with, restraining, or coercing employees in the exercise
of the rights guaranteed them by Sec. 7 of the Act. Accordingly. we have
modified the recommended Order and notice in these respects.
(d) Failing or refusing to supply the Union at its
request with the names of all employees of Respon-
dents in job classifications covered by the 1973-78
and 1978-83 Council-Union agreements.
(e) Unilaterally changing the terms and conditions
of employment of Respondents' employees in the
classifications covered by the 1973 78 and 1978 83
Council-Union agreements.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to effectu-
ate the purposes and policies of the Act:
(a) Honor, enforce, maintain, and give retroactive
effect to March 15, 1978, to all the terms and condi-
tions of the 1978-83 Council-Union agreement.
(b) Meet and bargain with the Union at its request
concerning the current employee bonus plan.
(c) Provide the Union at its request with the names
of all employees of Respondents in job classifications
covered by the 1973-78 and 1978 83 Council-Union
agreements since May 4, 1977.
(d) Make whole any of Respondents' employees in
the unit covered by the 1973 78 and 1978-83 Coun-
cil-Union agreements for any losses they have suf-
fered by virtue of Respondents' failure and refusal to
comply with the terms and conditions of the two
agreements since May 4, 1977, with the losses and
interest thereon computed in the manner prescribed
in F. . Woolworth (ompan, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651 (1977). 2
(e) Make whole the Union for any losses it may
have suffered because of Respondents' failure and re-
fusal to comply with the terms of 1973 78 and 1978
83 Council-Union agreements, with the sums due and
interest thereon calculated in the same manner set out
in (d) above.
(f) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amounts due
under the terms of this Order.
(g) Post at Respondents' place of business in San
Bernardino, California, copies of the attached notice
marked "Appendix."3 Copies of said notice, on forms
provided by the Regional Director for Region 31, af-
ter being duly signed by Respondents' representative,
shall be posted by Respondents immediately upon re-
ceipt thereof; and be maintained by them for 60 con-
2 See, generally, Isis Plumbing & tirating Co.. 138 NI.RB 716 (1962).
In the event that this Order is enforced by a Judgment ofa United States
Court of Appeals. the words in the notice reading "Posted by Order of the
National l.abor 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."
864
tIlE PL.AYERS RS'IAt RANT8
secutive days thereafter. in Conspicuous places. in-
cluding all places where notices to emploxees are
customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not
altered, defaced. or covered bh an' other material.
(h) Notify the Regional Director ftir Region 31. in
writing, within 20 days from the date of this Order.
what steps Respondents have taken to comply here-
with.
APPEN I)X
Not) ( o EM PI.oYiI.s
PostIII) BY ORI)IER () 111i.
NAIIONAI. LAB()R Rll Ali()NS BOA.RD
An Agency of the United States (Government
After a hearing at which all parties had an opportuni-
ty to present evidence and cross-examinte witnesses
the National Labor Relations Board has foiund that
we, Thomas Hoover and Dennis Loy d/b/a The
Players Restaurant. violated the National labor Re-
lations Act, as amended, and has ordered us to post
this notice. We intend to abide by the following:
Wli wl.i. N()I refuse to recognize or bargain
with the Union through our bargaining repre-
sentative. Hotel and Restuarant Employers
Council of San Barnardino. California.
WE WILI. NOI fail or refuse to comply with all
the terms and conditions of the 1973 78 and
1978 83 Council-Union agreements from and af-
ter May 4, 1977.
WE WIl.t. NO' unilaterally change the terms
and conditions of employment of our employees
in job classifications covered by the 1973 78 and
1978-83 Council-Union agreements. The appro-
priate bargaining unit is:
All employees employed by the employer-
members of the Council in the job classifica-
tions set forth in "Exhibit A" of the 1973-78
and 1978-83 Council-Union agreements.
WE WIll NOT fail or refuse to bargain with the
Union at its request, either directly or through
the Council, over the current bonus plan for our
employees in the job classifications covered by
the currently effective Council-Union agreement.
WF WIl.l. NOT fail or refuse to supply the
Union at its request with the names of our em-
ployees in job classifications covered by the
1973 78 and 1978-83 Council-Union agree-
ments.
WE Wil.l. 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.
Wl: \i.i. supply the Union with the names of
our employees in job classifications covered by
the 1973 78 and 1978 83 (ouncil-Union agree-
menlts since May 14. 1977.
Wlv 'l.l. meet and bargain with the Union at
its request concerning the current employee bo-
n1LIS plan.
Wtl w\t.i honor. enforce. maintain. and give
eflect to the 1973 78 and 1978 83 C(ouncil-
Union agreements and give retroactive effect to
all the terms of said agreements. includling, but
not limited to. the provisions relating to wuages
and other benefits, and \it wil make whole our
employees for any losses the) may have suttered
by reason of our alleged failure and refusal to
honor and abide b\ said agreements. with inter-
est on the sums due.
Wik lt.i. make the Union whole for all losses
it ma) have suffered b virtue of our failure and
refusal to compl with the terms of two agree-
ments, with interest on the sum due.
ItO()MAS HI( )i) R ANDI) DINNIS IA)Y I)/B/ A
THi P AYIRS Risl tAt RAN I
DI('ISION
si AI I1 s1: t1 I Ili (\SI:
GIOR( ('IRISINSINs. Administrative Law Judge: On
September 28. 1978. conducted a hearing in San Bernar-
dino, California. to trs issues raised h a consolidated com-
plaint issued on Jul' 27. 1978, on the basis of charges filed
by Culinary Workers. Bartenders and H1otel Service Em-
ployees, Local 535. Ilotel and Restaurant Emplosees and
Bartenders International Union. AFL-CIO' in Case 31
CA 7467 on October 25. 1977., and in Case 31 CA 8083
on May 30. 1978, against Thomas Hoover and Dennis Loy.
d/b/a The Players Restaurant.'
The consolidated complaint alleges that Respondents
violated Section 8(a)( I) and (5) of the National Labor Rela-
tions Act. as amended, when, without prior notice to or
bargaining with the Union, Respondents made changes in.
discontinued, and instituted rates of pay. wages. hours. and
working conditions other than those specified in the 1973-
78 and 1978-83 contracts between the Union and the Hotel
and Restaurant Employers Council of San Bernardino,4
and by refusing to supply information requested by the
Union to aid its administration of those contracts.
Hereafter called the Union.
2 That charge led toi the issuance of a complaint against Respondents on
December 23. 1977. On March 17. 1978 the Regional Director approved an
informal settlement agreement executed hb the parties disposing of the issues
raised by that complaint. On July 10, 1978. however in lew of Respondents'
failure or refusal to comply with the terms of the settlement agreement, the
Regional Director withdrew his approsal of the agreement and on July 27.
1978, issued a single. consolidated complaint incorporating (ases 31 CA
7467 and 31 ('A 80)83 for hearing and dsposition in stew of the common
parties, issues and to aoid duplication
3Hereafter called HIoover. I.oy, and Players respectively, and Respondents
collectively
4 ereafter called the ('Council
865
D)ECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
Respondents admitted they joined the Council in 1977
and refused thereafter to comply with terms of the Council-
Union 1973 78 contract and admitted they refused to sup-
ply the Union with requested information, hut took the po-
sition they were not legally obligated to comply with the
terms of the Council-Union 1978 83 contract because they
were not a member of the Council at the time the Council
and the Union commenced the negotiations which led to
the execution of that contract.
The issues before me are whether Respondents efl`ectivel
withdrew from the Council prior to the commencement of
the negotiation of the 1978-83 contract and were therehy
released from any obligation to comply with its terms and
the devising of an appropriate remedy for its admitted 1977
violations and, in the event I find they violated the Act hby
refusing to honor the 1978 83 contract, the appropriate
remedy therefor.
The parties appeared by counsel at the hearing and were
afiorded full opportunity to produce evidence, to examine
and cross-examine witnesses, to argue. and to file riefs.
Briefs have been filed by Respondents and counsel for the
General Counsel.
Based upon my review of the entire record, observation
of the witnesses, perusal of the brietf and research, I enter
the following:
FINI)IN(;S I' IA( I
1. JURISI)l('lION AND I.ABOR OR(GANAII()ON
The consolidated complaint alleges, the answer admits
and I find Hoover and Loy, at times material, were partners
operating a restaurant in San Bernardino, California, called
The Players; that on May 4, 1977, they joined the Council;
that the Council is a voluntary association of employers
engaged in the operation of hotels and restaurants in the
San Bernardino and Riverside, California, areas and exists
primarily for the purpose of negotiating, executing, and ad-
ministering, on behalf of its members, collective-bargaining
agreements with labor organizations representing its mem-
bers' culinary and/or bartender employees; that the Coun-
cil's members annually purchase and receive goods or ser-
vices valued in excess of $50,000 from sellers or suppliers in
California who receive same from outside of the State of
California; that the Council's members annually derive
gross revenues valued in excess of $500,000: that the Coun-
cil's members constitute a single employer for purposes of
the Act; and that the Council's members, including Re-
spondents, was an employer engaged in commerce in a
business affecting commerce and the Union was a labor
organization within the meaning of Section 2(2)., (5)., (6).
and (7) of the Act.
1I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Unit and the Union's Representative Status
In March 1973 the Union and the Council executed a
contract covering the rates of pay, wages, hours. and work-
ing conditions of culinary workers and bartenders em-
ployed by the Council's members and represented by the
Union for a term extending from March 15. 1973, through
March 15, 1978.
On May 4. 1977. Respondents. by Hoover. applied for
membership in the Council. In the formal membership ap-
plication. Respondents agreed, in the event the application
was accepted, to be hound by the terms of the currently
effective (1973 78) ('ouncil-Union agreement.' Respon-
dents' application was accepted and approved by the Coun-
cil immediately upon its submission.'
Under the terms of the 1973 78 contract, the C(ouncil
recognized the Union as the exclusive collective-bargaining
representative of the classifications of culinary workers and
bartenders employed by its members.
On the basis of' the foregoing. I find that a unit consisting
of' culinars workers and bartenders employed bh members
of' the ('ouncil in classifications set out in the Council-
Union 1973-78 contract at times material was an appropri-
ate unit for collective-bargaining purposes within the mean-
ing of' Section 9 of' the Act and that at times material the
Uinion represented a majorit, of the employees within that
unit.
B. 711( l ',/llhions o' the 97.- 78 (Contlrac
Respondents admitted following their May 4, 1977, ac-
ceptance as members of the Council they failed or refused
to:
1. Either provide and clean or launder uniforms for their
waitresses or pay the waitresses 50 cents per day in lieu
thereof (art. 7, 1973 78 Council-Union contract).
2. Make payments to the Hotel & Restaurant Insurance
Trust Fund on behalf of their employees in classifications
covered by the aforesaid contract in order to provide those
employees with hospital and surgical and pension plan cov-
erage (art. 9, 1973 78 (ouncil-Union contract).
3. Comply with the terms of the union-security provision
of the contract (art. 3, 1973 78 Council-Union contract).
4. Pay employees covered by the contract who worked
on May 30, 1977, at the premium rate set out in the con-
tract for all hours worked that day. pay covered employees
scheduled to work that day but were given the day off pay
for the hours they normally would have worked and grant
to employees normally scheduled to be off work that day an
extra day off within 2 weeks of May 30. 1977 (art. 5. F,
1973 78 Council-Union contract).
5. Grant the wage increases to covered employees sched-
uled for September 1, 1977 (art. 6 and Exh. A (Wage
Schedule), 1973-78 Council-Union contract).
C. Inslitution ofJ'a New Wage Plan
Respondents also admitted they instituted an employee
bonus plan on or about September 1, 1977, covering em-
plovees within the coverage of the Council-Union 1973 78
contract without prior notice to or bargaining with the
Union.
'The 1973 78 (ouncill-Union contract also contained a provision stating
any hotel or restaurant joining the Council during the term of the contract
thereupon became a part) to and bound bh the contract's terms.
6 the uncontradicted testimony of Council President James Goldberg to
that effect is credited.
866
Till PI.AYERS RSTAI:RANI
D. The 1977 Direct Rcfisctal T;, Bart(i,
Respondents further admitted the advised the Inion on
or about October 31, 1977. they would persist in their re-
fusal to comply with the terms of the 1973 78. Council-
Union contract set out above and continue in effect their
unilaterally instituted bonus plan set out above unless the
Union would negotiate a "side deal" with them.
F. The 197X N''gotialloi.
Pursuant to the provisions of the 1973 78 ('ouncil-[ nimon
contract (art. 15, Duration), on Janilar 4. 1978. the U nion
notified the Council it wished to negotiate certain modifica-
tions of the 1973 78 contract. Pursulant to that notice. rep-
resentatives of the Council and the I nion met on Februar,
28 and March 7. 1978; on the latter date. they reached
agreement on terms for a new 5-3ear agreemenit extending
from March 15. 1978. through March IS. 1983. subject to
employee ratification thereof I he terms of the new agree-
ment were presented b the Union to its members on
March 8 1978. and ratified b vote of the membership that
date. On March 9. 1978. the linio notified the Council of
the results of the contract ratitication vote.'
F. Respondents' Purported Wiihdral od u Ituhoil,tv a,
Council To Represent Them
The Council's bxlaws authorize the Council to act as the
exclusive representative of its members for collective-bar-
gaining purposes. including authority to bargain with the
Union over union proposals for new or changed rates of
pay, wages, hours, and working conditions of culinary
workers and bartenders employed by its members and au-
thority to execute a contract with the Union incorporating
agreements reached with respect to those subjects: the by-
laws also limit its members' right to withdraw such author-
ity by providing such withdrawal may occur only in con-
junction with the explanation of a currently effective
collective-bargaining agreement by written notice ad-
dressed to the Council at least 30 days prior to the expira-
tion of such agreement (bylaws art. I. IV, and VI).
Respondents noted at the hearing they only paid dues to
the Council covering their membership therein for the quar-
ter during which they joined the Council, i.e.. from May 4,
1977. through June 30. 1977. and contend by their failure to
tender council dues thereafter the Council ceased to consti-
tute their duly authorized exclusive representative for the
purpose of bargaining collectively with the Union on and
after July 1, 1977. Council President Goldberg. however
testified without contradiction many of the Council's mem-
bers have been delinquent in their dues payments and dues
delinquency is a problem which warrants greater collection
efforts, but went on to state the Council continues to repre-
sent dues delinquents during such delinquency and follows
the policy of continuing such representation until and un-
less a member timely withdraws such authority in accord-
7According to the uncontradicted testimonn of Council President (iold-
berg and Union Secretary-Treasurer Thomas S Jones. which is credited
ance sith the procedures set out in the Council's blaws
(art. 6: b notice 30 da;y prior to the expiration date of a
current Council-Union contract). (Goldberg's testimony is
credited.
I therefore find and conclude Respondents' dues delin-
quency to the Council neither caused Respondents' niem-
bership in the Council to lapse nor rescinded the Council's
aluthorization to act as Respondents' exclusive representa-
tive for collective-bargaining vis--i. the lJnion.
While Respondents notified the Ulnion b a letter mailed
on January 26. 1978, and received by the Union on January
27, 1978, that Respondents wished to terminate the 1973 78
Council-Union contract at its March 15, 1978. expiration
Respondents did not notify the Council that Respondents
wished to withdraw from the Council and cantcel their
membership therein until March 13. 1978. hb aletter dated
March 9 1978.'
The Council as unaware of any desire on the part of
Respondents to withdraw the ('ouncil's authority to repre-
sent and bind Respondents in the 1978 negotiations until its
March 13. 1978. receipt (of Respondents' letter of with-
drawal: in fact, Goldberg assured Jones in the 1978 nego-
tiations the Council was acting on Respondents' behalf.'
It is clear under the Council's bylaws referred to above
that Respondents' withdrawal was untimely tiled with the
Council and that, under the provisions of those bylaws and
the 1978 83 ('ouncil-Union contract Respondents are
bound by the contract and may not withdraw authority
trom the (ouncil to represent them nor a,,oid cmpliance
with the terms of the 1978 83 contract until its expiration.'
On March 15, 1978. the Union forwarded to Respon-
dents the new wage schedules and increases in the trust
tund remittances agreed upon by the Council and the
Union on March 7 1978. for compliance by Respondents.
On that same date Respondents sent identical notices to
the (Council and the Union stating Respondents were termi-
nating the 1973 78 Council-Union contract.
G(. Respondents' Reusal To ('ontlv UWith the 1V78 3
Council- L nion (Contract
Respondents admitted since March 15, 1978. they have
refused to honor and comply with the terms of the 1978 -83
Council-Union contract.
H. The Respondents' Reisal To Supply Information
Respondents admitted they' refused to comply with the
Union's April 25, 1978. request for a list of the names of its
employees within the unit specified in the 1978-83 Council-
Union contract.
A companion and duplicate letter to the letter it mailed to the Union on
Januars 26. 1978. was addressed to the Council and mailed that day, but
returned to Respondents undelivcred and unopened on January 31, 1978
with the notation "unknown" despite the faci it was correctly addressed;
Respondents made no etffor t effect delivery thereof thereafter.
'This finding is hsed on the uncontradicited testimony of Goldberg,
which i. credited
' Cf Reil. 4ss.,,lacs,. In,-. 120 NI.RB 3889 (19): Paint Poner. Incr. 230
NL.RB 758 (1977). and cases cited therein
867
I)i CISIO()NS (I N\ I I()NAI I. ,\BiO()R RII AIIO()NS 3BONRI)
I .t1 tal i/lid ( o I('/[ t. ion)t
Respondents havilg admitted they secured melllhersillp
in tile ('CouLcil on Ma 4 1977, and terealtelr. despite their
agreeient to coimply with tile blaws ('of the ('ouncil and
honor he terms of' tile ('ouncil-lUnion contract then ill et-
feit covering their culinary uiorkers anl harteldtcrs i the
classifications listed in that contract. refusilng to comipl?
with pro\ isions of' that conltract specifieud aboLe llor the hbal-
ance of' that conltract's term, I finld and conclude Respon-
dents therehb violated Section 8(a)(l) and (5) of the .Act.
Respondents having further adilitted the! unllatcrall\
ilistitutel ;I bonus plan 1or their CemInpl es ul(llln the nIIlit
cosered h\ the 1973 78 ('ouncil-l'nion conir;act \tiltout
prior otice t te C(ouncil, their dul, autilori/Cd rplresent-
atise tfor the purpose of hbargaining collectiel wilth tile
ULin. nolr prior notice to tile tInion, and itllhout halitl-
ing with respect thereto, I ind and conclude Respondentsc
therebs \iolated Section 8(a)( I) ant () of the Act.
Since I have enletled findilngs, Respondents' attlelpted
withdrawal of' authoritst fOr the ('unclil to act as their ex-
clusive represenltati\ e 1or te purpose of' brgailning collec-
tivcly witih the I ion over the rates of pa;\, ages hours,
and working conditions of' their emplosees wilhill tile Ullit
,ias served on tile ('outllil a'ter negotiationis for the 1978
83 (ouncil-t nion conlitract were ci)lncltded nl;tl. ill aili-
trin, was utimely under the ('ouncil'hs laN s. I further
find and conclude Respondents iwere and are hbollnd h the
terms of' the 1978 83 contract and thus Respondents vio-
lated Seetion 8(a)(1) and (5) of the Act bh their eonltinllued
refusal to honor and compl willth te termtis oi tlit conltract
since its effective date.
InasTIuch as I have entered findiigs above Respondents
and Respondents' employees within the Linit encompassed
hby the 1978 83 ('ouncil-Ullnion contract continue to he cy-
ered by that contract I further find Respondents violated
Section 8(a)(1) anld (5) of' the Act h their April 25. 1978.
refusal to comply with the I nilon's request for a list coln-
taining the names o' Respondents' employees within the
unit.
C( tNS( tSI)NS (t) lAN
I. At all pertinent times the members of the (Council con-
stituted an employer engaged in commerce in a business
aff'ecting commerce and the UJnion was a labor organization
within the meaning of' Section 2(2). (5). (6), ad (7) of' the
Act.
2. Since May 4, 1977. Respondents hate been a member
of the Council and the Council has been authorized to act
as their exclusive representative for the purpose of' bargain-
ing collectively with the Union concerning the rates of pa,
wages. hours. and working conditions of Respondents' em-
ployees in job classifications set out in the 1973 78 and
1978 83 ( ouncil- nion onitracts.
3. 'The employees of the (Council's melhbers i job classi-
fications enumnerated in the 1973 78 aind 1978 83 ('ouncil-
Union contracts conistitute anl appropriate unit for collec-
live-bargaining purposes within the mea;ninilg of Section 9 of
thile ct.
4. Since March 15, 1973. the lnionil lhas represenlted a
majority o the emploees of the (uolni's melmbers withili
tlhe i;i resaid unit including, since MaN 4. 1977. Respon-
dlills' enlploNecs in tile a;lor-enitione d job classifications.
5. Respondents lolated Section (;a)( I ) and (5) of the
Acl bs:
(a) i:aiilig o)r rel'tlsing to appl to hei elplobces in jh
classifications set out i the 1973 78 (Council-tllnion con-
tract al'ter Ma 4 1977. all t leCrms and conditions set out
ill tha; contract ftor thu hll;lnce of tie term o that contract
including, but not limitel to. the saltrless unitorm provision
(art. 71, te health nd siella]re anld pension pro ision (art.
9 tile ninl-securit, prov iion (art. 3), tile holida, pat
pI''lo\ isi \\it1 respect to Mla 3 1977 (art. 5). and the
plt)i sionl o;,r \\;age incruases elVcctl i Suptlemiber . 1977
(it. (6).
(b) I lilterals IIIStltllilil I ta lliS 1i;! ay p;il for its i-
,pl\ Ics il joh classilficatilons st out i thle 1973 78 and
1978 83 ( tincl- niion conitiacts on Septembher , 19. 177.
iilthout prior notice to the ('ouncil a;td the [ Ilion anld bar-
gai ilin \itlh l-rpcct to s;ilnle.
(c Refusing on Septellber 1. 1977. to compl with thle
ternims t the 1973 78 (Council- nion contract unless the
I nion neoti;tlled a "side deal \with Respondents.
(d) Faililng or refusing to apply to their emiployees in jobh
classifications set out ill the 1978 83 ('ti.ncil-U'nion con-
tract aftlr March 15. 1978. all the terms and conditions set
out in that contract rom and after \:;lrch 15 1978. to the
elirationl date ot that contract includilg, hut not limitcd
to. lihe icrea;le\ ii tage scales anld healthi and welfare and
pensioll tlild contributions set out in that colilict as ot
tillr fictl\ e dateits. thle v aitress uniorim plrol iioln, tile
unitltl-securit\ provision, the holidla pa provision. etc.
(e) Failinlg or rusing to conimpl with the Union's re-
quest lfr the na;iles of its eipl )es i the job classifica-
tions set out in te 173 78 and 1978 83 C'ouncil-4 nion
contracts.
6. The aoresai d unlfair labor practices aflect commerce
as defiled in the Act.
RI MI I)N
I laving touid Respondents engaged in unfair labor prac-
tices. it will he recommended they be directed to cease and
desist therefrom and take certain affirimative action de-
signed to effectuate the purposes of the Act.
Since findings hae been entered Respondents unlawfully
failed and refused to applN the terms of the 1973 78 and
1978 83 (Council-Union agreements to their employees rep-
resented b the Union in the unit described in the agree-
ments since May 4. 1977. I shall recommlllend the issuance of
an order directing Respondents to cease and desist from
their refusal to comply with the respective agreements, to
immediatels comply with the terms anld conditions o the
latter agreemilent, and to make its emploees w ithin the unit.
thile liotel and Restaurant Trust Funds and the :Union
whole or ans losses thes has e suffered since Mav 4 1977.
bh virtue of Respondents' noncolplialnce with the terms of
the respective agreetitents ronl andl ater Max 4. 1977. with
interest o thle SunMl due.
Iindirigs have been entered that Respondents addition-
all, iolated the Act h instiutilig a bonus plan, wilhout
868
I1HI 1'I,1 RS RI SI ' RAN I
prior nllotice and harrgainilg with the lllion either direcl
or through the ('ouncil. I shall recommend Respondlents he
directed to acqu;inl the Union ith the plan and contilnue
it in effect unless and until Respondents nd the I nion
reach mutual agreement on its ontinuance. m lodificaticn.
or cessation.
Additional findings have been entered that Respondents
on September 1. 1977. refused to cor1tpl with the (unclIl-
[Jnion agreement then in eflect unless the mnion agreed to
a "side deal": the recommended remiedN set out in the sec-
ond pa;ragraph ofI the relled. seetln of1 tlhis i)eclsill adcL-
u;ilcJl reildiees Illis iolation.
It has bheen ound Respolntlcls violated the Act bh rtclus-
ilg to supplN tilhe nlionl 'ithl tile Iamels of1 all of' Rscpon-
dentls' enlploes ill loh c;lsstitlonl set out ti ll tlie to
(' oilltcil-l lionl agreLilll'th: I shall recommend that Re-
slpotdents he directied to stlppl te 11, .1illCS all its Celllplo-
csh Ailill the unllit on and Lter M\1a; 4. 977. it the I. nlOil's
request therelor.
IRecommenll ded ()rd olillttd front publication.]