Remo's Pizza

National Labor Relations Board - Board DecisionsNov 30, 1970

186 N.L.R.B. 897 (N.L.R.B. 1970)

REMO'S PIZZA 897 Remo 's Pizza and Hotel and Restaurant Employees and Bartenders International Union Local No. 510, AFLr-CIO. Cases 19-CA-4586 and 19-CA-4587 November 30, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On July 24, 1970, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceeding, recommending dismissal of the complaint filed therein, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision with a supporting brief, and the Respondent filed a brief in opposition to exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions of the General Counsel and the supporting brief, the Respondent's opposing brief, and the entire record in the case, and hereby adopts the findings, conclusions,' and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. referred to as the Respondent, engaged in conduct violative of Section 8(a)(5) and (1) of the Act. Respondent, by its answer, denies that it committed the unfair labor practices alleged in the complaint. In addition, Respondent denies the allegations in the complaint upon which the General Counsel predicates his contention that the jurisdictional standards set by the Board are met in this proceeding. Pursuant to notice, a hearing was held in Pocatello, Idaho, on April 23, 1970, before me. Appearances were entered on behalf of all the parties. Briefs were received from the General Counsel and the Respondent within the time designated therefor. Upon the entire record in this proceeding and my observation of the witnesses as they testified, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Respondent is a partnership, owned by James H. Grayson and Ray Colaianni, engaged in Pocatello, Idaho, in the operation of a restaurant dispensing food products and alcoholic beverages for consumption on the premises. It is alleged in the complaint that Respondent is a member of Hotel and Restaurant Employers Association of Pocatello, Idaho, hereinafter referred to as the Association, and that the Association "was formed and exists for the purpose, among others, of representing its members in collective bargaining with labor organizations including the Union." Respondent denies, in its answer, that it is or ever was a member of said Association and further denies the existence of said Association. It is clear from the record that, in order for the Board's jurisdictional standards to be met, it is necessary to find that Respondent was at the time material herein a member of a multiemployer bargaining unit consisting of, inter alia, the Holiday Inn of Pocatello. General Counsel conceded on the record that, if he has failed to prove Respondent's membership in said multiem- ployer bargaining unit, the Board's jurisdictional standards will not have been met. As set forth hereinbelow in the section of this decision entitled "Alleged Membership in a Multiemployer Bargaining Unit," the Trial Examiner is of the opinion that the General Counsel has failed to sustain said burden of proof. I In adopting the Trial Examiner's Decision, we find it unnecessary to consider, and do not pass on, the Trial Examiner's conclusion that no multiemployer bargaining unit existed at the times material herein, as we find that Respondent was not a member of such a multiemployer bargaining unit even if it existed TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE STANLEY GILBERT, Trial Examiner: Based on charges filed in the above cases on December 8, 1969, by Hotel and Restaurant Employees and Bartenders International Union Local No 510, AFL-CIO, hereinafter referred to as the Union, the consolidated complaint herein was issued on February 3, 1970. The complaint alleges that Remo's Pizza, hereinafter H. THE LABOR ORGANIZATION INVOLVED Hotel and Restaurant Employees and Bartenders Inter- national Union Local No. 510, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 1111. ALLEGED MEMBERSHIP IN A MULTIEMPLOYER BARGAINING UNIT It is the opinion of the Trial Examiner that General Counsel has failed to sustain the burden of proof of the existence at the time material herein of an association which constituted a multiemployer bargaining unit and also has failed to sustain the burden of proof that Respondent was at the time material herein a member of such association, even if it were assumed to exist. 186 NLRB No. 112 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has stated in its decision in South Florida Taxi Association, 182 NLRB No. 146, as follows: In assessing the status of an association as a multiemployer bargaining group , the Board examines its organic agreement as well as the conduct of its members to determine whether the members have demonstrated an unequivocal intention to be bound in their collective bargaining by group rather than by individual action.2 Van Eerden Company , etc 154 NLRB 496 , The Kroger Co, 148 NLRB 569 In its decision in The Kroger Co., 148 NLRB 569, 573, the Board stated: What is essential [to prove membership in a multiem- ployer bargaining unit] is that the employer member has indicated from the outset an intention to be bound in collective bargaining by group rather than by individual action. The findings of material facts in this proceeding are set forth herembelow and examined in light of the above principles enunciated by the Board. In August 1954, a group of hotel and restaurant employers formed an Idaho corporation with the name of Hotel and Restaurant Employers Association of Pocatello, Idaho. One of the purposes of the corporation, according to its bylaws , was "to negotiate with and enter into contracts with employees or their authorized representatives concern- ing wages , hours and conditions of employment," ostensi- bly on behalf of its members. (It is noted that the proprietor of the restaurant from whom the Respondent purchased the restaurant involved herein was among the group of hotel and restaurant owners who signified their adoption of the bylaws on August 12, 1954.) However, there is nothing in the record to indicate that the corporation ever took any action to carry out the purposes for which it was chartered. On the contrary, it appears that its charter was permitted to lapse some time in the 1950 's. Furthermore , the record is devoid of any evidence that the Union, or any other labor organization , had any dealings with the corporation. Prior to Respondent's purchase of the restaurant it was named Gil's Pizzeria. In November 1962, the owners of the Respondent purchased the restaurant and thereafter changed its name to Remo's Pizza.' It appears that the Union had a contract with Gil's Pizzeria at the time of the aforesaid purchase by Respondent It further appears that Rose Riedel, a representative of the Union, approached the new owners in January 1963 and requested that they sign a contract with the Union to represent the employees. On January 9, 1963 , the new owners signed the contract which was presented to them. The agreement signed by Respon- dent in January 1963 provided that it would terminate on the last day of June 1962, but that it would continue thereafter from year to year unless either party gave notice of its intention to propose changes. It appears reasonable to assume that said contract signed by Respondent was similar to the contracts signed by other employers in the area in 1961 , at least insofar as the provisions for its termination or continuation. The record indicates that in 1963, 1966, and 1969 the 1 It is noted that there is nothing in the record to show that Respondent was a "successor" to the previous owner or that Respondent had any knowledge of what relationship , if any , the previous owner had to the so- Union sent timely notices prior to July 1 of each of said years that it wished to negotiate changes in the then existing contracts . The record is silent as to whether or not Respondent received such notice in 1963 . According to Riedel 's testimony , the Union did negotiate in 1963 for new contracts . The record is devoid of any evidence that Respondent signed any further agreements with the Union other than the one it signed in January 1963. Riedel was the only witness called by General Counsel to testify with respect to the Union 's actions in negotiating contracts prior to 1966. Her testimony is somewhat confused and is unclear as to what the relationship was, if any, between the Union and Respondent from July 1, 1963, to the middle of 1966. The record discloses that the practice of negotiating contracts between the Union and the various hotel and restaurant employers in the Pocatello area was as follows: At the time prescribed in the existing contract the Union would send notices to various employers with whom it had contracts that it proposed to negotiate changes in the existing contracts and would notify them of the time, date, and place of a "negotiating meeting." There would be a series of meetings for the purpose of negotiations, which meetings were attended by some of the employers whose attendance would vary from one session to the other. Usually one of the employers would act as spokesman for the group of employers present . After agreement was reached , the Union would have contract agreements printed with the Union named as one party and a blank space in which to write the name of the individual employer as the other party It appears that at no time was there an agreement prepared in which the Union and the Associa- tion appeared as parties . The Union then contacted the individual employers and over a period of time would endeavor to obtain their signatures on a copy of the agreement. It appears that the individual employers were privileged to negotiate modifications of the printed agreement . However, it does not appear that this privilege was widely exercised. General Counsel called two witnesses to testify as to negotiations in 1966 , Donald Young , general manager of Holiday Inn of Pocatello, and Riedel . It appears that Respondent received notice of the meeting for negotiations in 1966 and the two owners attended the first meeting. There is a conflict in the testimony of Riedel and Young as to Respondent 's attendance at the 1966 negotiations. Riedel testified that there were four to six meetings and that Respondent attended all but one. On the other hand, Young testified that at the first meeting one of the owners of the Respondent stated that "they saw no reason for themselves to be there and left." He further testified as follows: A. They dust didn ' t seem-didn't feel that they should be related with us, and there was some inference about the Union, and they didn't consider themselves part of the Union. TRIAL ExAMINER: This is what they told you? A. Yes, sir. It further appears from Young 's testimony that neither of called Association The corporation had ceased to exist long before the purchase by Respondent REMO'S PIZZA 899 the owners of Respondent appeared at the subsequent negotiating sessions . Riedel was not an impressive witness in contrast with Young and the latter's testimony is credited with respect to Respondent's attendance and conduct at the 1966 negotiations. It is concluded from this credited testimony that Respondent gave notice that it did not consider itself related to the group present to negotiate with the Union and thus gave timely notice that it would not be bound by their actions. Young further testified with respect to the effect of the negotiations for 1966 upon the various employers in the area including the so-called members of the Association His testimony, upon direct examination by General Counsel, is as follows: Q. Did you consider an association of employers to exist during those 19 meetings? A. I brought up the question, "What am I doing here," and "What exactly is going on," and I was told it was the easiest means of negotiating a contract for the Union. Instead of having some 40 organizations, restaurants or bars or what not, from the City attend these meetings and try to negotiate a contract, it was easier for a small group to do it. Q. Did you consider this- TRiAL EXAMINER: This was to suit the convenience of the Union instead of bargaining individually. Is that it? A. Yes, sir. Q. Were there any other purposes for negotiating jointly with the Union? A. -No. It was just the ease of a few people-is why there was a group to negotiate with the Union. Q. Was there any advantage for the employers to negotiate on this basis? A -Uh-None, really, outside of their time. TRIAL EXAMINER. Let me ask you a question. Did you consider that any of the people who were not attending the meetings would be bound by any agreement you entered into? A. No. This was one of the things 1-uh-tried to make a point of and get clear in my mind-was as to what the results would be, and-it was my understand- ing that after we reached a partial agreement, that it would be put into letter form or a contract form, and people on an individual basis would agree to it. When the 1966 negotiations were concluded, the Union had the contract printed and then approached the various members to obtain their signatures. Young testified that when he was approached in 1966, he negotiated some "oral" modifications of the 1966 contract before he signed it. When Respondent was requested to sign the 1966 agreement, it refused to do so. Riedel testified that Colaianni stated that he would sign the contract if the Union obtained contracts from all the root beer stands. She further testified as follows- A. Well, all he said-that he would live up to the contract, pay the wage raise and vacation pay. Whatever they negotiated in 1966, that he would live up to the contract. She also testified that on subsequent occasions she attempted to get Respondent to sign the 1966 agreement, but the owners refused to do so. Colaianni was not called as a witness by Respondent, but Grayson was called. Counsel for Respondent evidently understood that Riedel testified that Grayson made the above-described statements to her with respect to signing the 1966 agreement. Since his testimony as to what he said to her does not constitute a denial of what Colaianni said to her, her testimony with respect to Colaianni's statements remains uncontradicted and is, therefore, credited. In 1969, the Union apparently sent notices to employers with whom it had contracts that it proposed to negotiate changes in the 1966 contracts. Respondent also received such a notice. Three of General Counsel's witnesses testified to matters relating to the 1969 negotiations: Robert Guffy, who succeeded Riedel as financial secretary of the Union on June 1, 1969; Young, formerly identified as general manager of Holiday Inn of Pocatello; and Robert Stauffer, owner of Stauffer's Cafe of Pocatello. Guffy testified that the negotiations commenced on June 15, 1969. He was asked who participated in the negotiations and testified as follows: A. It was different. Don Young of the Holiday Inn, and Robert Stauffer from Stauffer's Cafe, and Danny Hong from the Hong Kong Cuisine attended all meetings, but at different times, it was different people,-at the meeting-at different places. Q. Did Remo's Pizza attend the 1969 negotiating sessions9 A. No. Q. Did you think that Remo's Pizza was a member of the association, even though they didn't attend negotiating sessions? A. Well, I had a list of names that was given to me-that said they represented these people-on the list. Guffy further testified that, on June 26, 1969, he asked Young for a list of the people he was representing at the negotiations, and that Young handed him the list to which he referred in his testimony. The name of the Respondent was included in the list. It further appears from Guffy's testimony that the names of a number of employers whom Guffy did not consider to be members of the so-called Association were also included. On cross-examination, Young testified with respect to the list (which Guffy testified Young had given to him) as follows: A. I copied it from a Union letter, which is a page and a half long. The Union-I assumed at the time-in a phone conversation-uh- that they were asking me for a list of the Union houses, or the people that belonged to the supposed association of which I was a member. In an attempt-uh-I couldn't recall all the names. They couldn't secure a list or anything, so I merely copied a list that in 1965, I had secured from the Union. I had my secretary retype this, and I either mailed it or gave it to Mr. Guffy in person. Q. Did you ever represent to Mr. Guffy that these were the members of a Pocatello Restaurant Associa- tion? 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. No. That wasn't my intention at all I-merely gave him the list as an aid to who had been, to my-I'm guessing-I, assumed this list, which I had received in '65-to be the association. I would also assume, from the back of my contract, that you have to divorce yourself from this organization-uh-in due course of time-some period of time-so they were supposed to know who has quit the association by notifying the Union. Uh-I typed this up, just as-from my records-as to what I had, and resubmitted to him. I thought his records were poor-or assumed them to be poor-excuse me-and he was in need of my help. Q. You subsequently learned that several of these persons or businesses listed on this Exhibit [the list] were not a part of any group, or any informal group ever Isn't that a fact? A. -Later I found this out. Yes. Young was a disinterested witness and his testimony is credited. Therefore, it is concluded that he did not state to Guffy that in the negotiations with the Union he was representing Respondent, among others, whose name appeared in the aforementioned list. It is noted at this point that Respondent did not attend any of the 1969 negotiating sessions. Stauffer testified with respect to the 1969 negotiations as follows: Q. Now, at the last negotiating session at which an agreement was reached, were all the restaurants in attendance? A No. Q. The members of the Association. A. No. MR. OLSON: Your Honor- A. There's no Association members. MR. OLSON: I would object- TRIAL EXAMINER: Just a moment. There were no Association members? Is that what you said?-What did you just say? A. I said, "There were no Association members." There was no existing Association. There were three of us that were more or less delegated-It was left up to-The business end was left up to three of us, and we continued on it. We weren't elected on it or anything. TRIAL EXAMINER: Who delegated you? A. Well, we weren't actually delegated. TRIAL EXAMINER: You weren't actually delegated. A. We just-No, sir. We weren't. Uh-It was just left up to us, and we just went on ahead and no one said anything, so we kept on with the negotiations. TRIAL EXAMINER: Who are "we"? Who are the "we" you refer to? A. I refer to Don Young, Jimmy Hong and myself. TRIAL EXAMINER: Identify those people, please. A. Don Young is with the Holiday Inn.-And it was Danny Hong instead of Jimmy Hong, and It's the Hong Kong Cuisine. And Robert Stauffer with Stauffer's Cafe. General Counsel asked Stauffer whether he considered the agreement reached in the 1969 negotiations to be binding on the restaurants that were not present at the final meeting. Stauffer's response to that question was as follows: A. Well, mainly the three of us were looking out for our three establishments, and as in the previous times, the smaller places and people who weren't there would follow along with what we decided on.-Or would accept the Union contract when it was presented to them. TRIAL EXAMINER: In other words, is it your understanding that the three of you negotiated a contract, and then it was up to the other restaurant owners to determine whether they wanted to accept it or not? A. Yes, sir. In a way. Yes. TRIAL EXAMINER: Did you feel that they had to accept it? A. No. I didn't feel that they had to accept it. The above testimony of Stauffer is credited. Based on the credited testimony and findings of fact hereinabove set forth, it is concluded that the General Counsel has failed to establish that the so-called Associa- tion was a multiemployer bargaining unit at the time material herein. It is also concluded that, even if it were to be assumed that it was a multiemployer bargaining unit, the General Counsel has failed to establish that Respondent was a member thereof. The Trial Examiner is of the opinion that the record discloses that the so-called Association was no more than a grouping of those employers in the Pocatello area with whom the Union had contracts and that the Union grouped them together to facilitate bargaining with them. The Trial Examiner is of the further opinion that the mere fact that it was convenient for the Union to bargain with some of the employers of the group and convenient for the employers who were not present at the negotiations to accept the results is not sufficient to establish that a multiemployer bargaining unit existed of the employers in the area whose employees were represented by the Union. Bennett Stone Company, 139 NLRB 1422, 1425. There is no showing in the record that such employers "demonstrated an unequivocal intention to be bound in their collective bargaining by group rather than by individual action." South Florida Taxi Association, supra. The Trial Examiner is also of the opinion that, in 1966 at the outset of the first negotiating meeting, Respondent clearly indicated that it did not wish to be considered as a member of the group negotiating with the Union and thereby withdrew from any relationship it might have had with the bargaining group of employers. The fact that subsequent to the negotiations Respondent, although refusing to sign the agreement which was negotiated in 1966, stated that it would pay the wages and grant the same fringe benefits as were provided in the agreement cannot be construed as a declaration that it considered itself a member of the so-called Association ( assuming that the Association did constitute a multiemployer bargaining unit). The record clearly discloses that the General Counsel has failed to sustain the burden of proof that Respondent "indicated from the outset an intention to be bound in collective bargaining by group rather than by individual action." The Kroger Co., supra. To state it succinctly, what REMO'S PIZZA the General Counsel proved by his own witnesses is that, in January 1963, the Respondent signed a contract which had been prepared in 1961, a year and a half before it entered into business ; it signed no further agreements with the Union thereafter; in 1966 at the outset of negotiations the Respondent indicated that it did not wish to be considered to be related to the group entering upon negotiations and did not attend any negotiation meetings ; subsequently in 1966 it refused to sign the contract which had been negotiated by the group, but stated that it would pay the wages and grant the fringe benefits provided in the negotiated contract; and it did not attend any of the 1969 negotiating sessions and refused to sign the contract negotiated in 1969. In addition, General Counsel's witnesses testified that when they, as employers, negotiated with the Union as a group in 1966 and 1969 they did not consider other employers were bound by their action. 901 There is no showing in the record that the Respondent herein meets the Board 's jurisdictional standards, but rather the General Counsel conceded that , in the event he has failed to prove that Respondent was a member of a multiemployer bargaining unit (the Association), the Board 's jurisdictional standards have not been met. Since General Counsel has failed to meet such burden of proof, it is concluded that the Board 's jurisdictional standards have not been met in this proceeding and it will be recommended that the complaint be dismissed in its entirety. RECOMMENDED ORDER The Board's jurisdictional standards have not been met in this proceeding and, therefore, the complaint herein should be, and it is hereby, dismissed in its entirety.