Ridgewell's, Inc.

National Labor Relations Board - Board Decisions

May 18, 2001

334 N.L.R.B. 37 (N.L.R.B. 2001)

RIDGEWELL’S, INC. 37
Ridgewell’s, Inc. and Hotel & Restaurant Employees
Union, Local 25, AFL–CIO. Case 5–CA–27800
May 18, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On June 26, 2000, Administrative Law Judge Jerry M.
Hermele issued the attached decision. Both the Respon-
dent and the General Counsel filed exceptions, support-
ing briefs, and answering briefs.
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 briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order as modified and set
forth in full below.
In exceptions, the General Counsel argues that the
judge erred in failing to find that Respondent violated
Section 8(a)(5) of the Act by discontinuing fringe benefit
contributions for employees after it took over the after-
noon and evening catering functions at the United States
House of Representatives in January 1998 from the
predecessor contractor. In essence, the General Counsel
contends that the Respondent was not free, as a successor
employer, to establish initial terms and conditions of
employment without first bargaining with the Union.4
For the reasons set forth below, we reject the General
Counsel’s contention, and affirm the judge’s dismissal of
this allegation.
Under NLRB v. Burns Security Services, 406 U.S. 272,
294–295 (1972), a successor employer is generally free
to establish initial terms and conditions of employment
without bargaining, except where it is “perfectly clear”
that the employer will retain the employees under their
prior conditions. See Spruce Up Corp., 209 NLRB 194
(1974), enfd. per curiam 529 F.2d 516 (4th Cir. 1975).
In Spruce Up, the Board held that a successor employer
meets the “perfectly clear” exception if it “actively or, by
tacit inference” misleads employees into believing at the
time of hiring that employment conditions will not
change, or if it “failed to clearly announce its intent to
establish a new set of conditions prior to inviting former
employees to accept employment.” 209 NLRB at 195.
Here, however, the Respondent contends that its an-
nouncement of the intent to employ the predecessor’s
employees as independent contractors was both timely,
coming before operations or hiring began in January
1998, and substantive, putting the Union on notice that a
new set of employment conditions would be in effect.
We agree with the Respondent.5

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 In finding the Respondent to be a successor, Member Hurtgen
notes that the Respondent focuses primarily on the assertion that the
predecessor employees were changed into independent contractors.
Member Hurtgen rejects that contention.
4 References to “the Union” in this decision encompass both Hotel
and Restaurant Employees Union Local 32 and its successor, Local 25.
The Respondent met with the Union on January 9,
1998. During that meeting, the Respondent’s president,
Thomas Keon, announced that it would utilize the previ-
ous catering employees on an independent contractor
basis. At that time, the Respondent had not yet begun
operations at the House of Representatives, and actually
had not yet finalized its subcontract with the primary
contractor, GSI.
We find that Keon’s announcement, made prior to hir-
ing or finalization of the catering subcontract, clearly
signaled that the Respondent’s initial terms and condi-
tions of employment would differ from those in the Un-
ion’s previous collective-bargaining agreement with the
prior contractor. The testimony of Minor Christian,
president of Local 32 before its merger with Local 25,
supports this view. Christian acknowledged that it was
“always the position of the company” that the workers
had to be independent contractors, and he indicated his
understanding that such an arrangement would differ
from past employment practice with the predecessor.
Our adoption of the judge’s finding that the predeces-
sor’s employees continued to work for Ridgewell’s as
employees within the meaning of the Act, rather than as
independent contractors, does not alter the fact that
Keon’s announcement portended employment under dif-
ferent terms and conditions. Since the Respondent an-
5 Although the judge correctly found that the Respondent is a Burns
successor and violated Sec. 8(a)(5) by refusing to bargain with the
Union, he did not directly address the “perfectly clear” issue in dismiss-
ing the additional allegation that the Respondent failed to continue
making fringe benefit contributions. As discussed infra, however,
based on our review of the record we find that the Respondent made
clear from the outset of its negotiations to take over the catering con-
tract that it did not intend to operate under the same terms and condi-
tions of employment as the predecessor. We note that the General
Counsel does not contend that the Respondent’s plan to use the prede-
cessor’s employees as independent contractors was an unlawful attempt
to avoid having to recognize and bargain with the Union.
334 NLRB No. 9
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 38
nounced its clear intention before any hiring, it is not a
“perfectly clear” successor under Burns and Spruce Up.
Consequently, the Respondent did not violate the Act in
January 1998 by establishing initial terms and conditions
of employment without first bargaining with the Union.
These terms did not include continuation of fringe bene-
fit payments made under the predecessor employer’s
collective-bargaining agreement.
The judge further found, however, that the Respondent
made certain unilateral changes subsequent to its com-
mencement of operations. These changes, announced on
July 21, 1998,6 and implemented on August 1 by the Re-
spondent without bargaining with the Union did violate
Section 8(a)(5) and are to be remedied as set forth in the
judge’s recommended Order, as modified here.7
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Ridgewell’s Inc., Bethesda, Maryland, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified and set forth in
full below.
1. Cease and desist from
(a) Refusing to recognize and bargain collectively
with the Hotel & Restaurant Employees Union, Local
25, AFL–CIO (the Union), as the exclusive collective-
bargaining representative of its employees in the fol-
lowing appropriate unit:

All regular full-time and regular part-time employees
and regularly scheduled catering employees at the
House of Representatives system, excluding students,
casual employees, office clerical employees, guards,
watchpersons, professional employees, management
trainees, and supervisors as defined in the Act.

(b) Unilaterally changing wages, hours, and other
terms and conditions of employment of the employees in
the above-described bargaining unit without first notify-
ing and bargaining with the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

6 See GC Exh. 16.
7 We shall modify the recommended Order to accord with the tradi-
tional Board format and to include specific cease-and-desist provisions
for the Respondent’s unlawful conduct. In addition, we shall provide
that the Respondent make unit employees whole for any monetary
losses they may have suffered from the Respondent’s unlawful unilat-
eral changes, in the manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively
with the Union, as the exclusive representative of em-
ployees in the above-described unit, with respect to rates
of pay, wages, hours, and other terms and conditions of
employment and, if an agreement is reached, embody it
in a signed contract.
(b) Rescind, on request by the Union, changes unilat-
erally made in the terms and conditions of employment
of employees in the above-described unit on August 1,
1998.
(c) Make bargaining unit employees whole, with in-
terest, for any monetary losses suffered as the result of
the Respondent’s unlawful unilateral changes.
(d) Within 14 days after service by the Region, post at
its facilities in Bethesda, Maryland, and at the U.S.
House of Representatives in Washington, D.C., copies of
the attached notice marked “Appendix.”8 Copies of the
notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
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 al-
tered, defaced, or covered by any other material. In the
event that during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 15,
1998.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
8 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

RIDGEWELL’S, INC. 39
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights:

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to recognize and bargain with
the Hotel & Restaurant Employees Union, Local 25,
AFL–CIO as the exclusive collective-bargaining repre-
sentative of our employees in the following appropriate
unit:

All regular full-time and regular part-time employees
and regularly scheduled catering employees at the
House of Representatives system, excluding students,
casual employees, office clerical employees, guards,
watchpersons, professional employees, management
trainees, and supervisors as defined in the Act.

WE WILL NOT unilaterally change wages, hours, and
other terms and conditions of employment of our em-
ployees in the above-described bargaining unit without
first notifying and bargaining with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL recognize and, on request, bargain collec-
tively with the Union, as the exclusive representative of
our employees in the above-described unit, with respect
to rates of pay, wages, hours, and other terms and condi-
tions of employment and, if an agreement is reached,
embody it in a signed contract.
WE WILL rescind, on request by the Union, changes
unilaterally made in the terms and conditions of em-
ployment of our employees in the above-described unit
on August 1, 1998.
WE WILL make our employees whole, with interest,
for any monetary losses suffered as the result of our
unlawful unilateral changes.

RIDGEWELL’S, INC.

Elicia Marsh and Eileen Conway, Esqs., Baltimore, Maryland,
for the General Counsel.
Celeste M. Wasielewski and Marnie W. Zebreck, Esqs. (Verner,
Liipert, Bernhard, McPherson & Hand), Washington, D.C.,
for the Respondent.
DECISION1
I. INTRODUCTION
JERRY M. HERMELE, Administrative Law Judge. Since
1998, Ridgewell’s, Inc. (Ridgewell’s), has assuaged the after-
noon and evening hunger and thirst of the United States House
of Representatives by catering events at the U.S. Capitol. In a
December 22, 1999 complaint, the General Counsel alleged
that Ridgewell’s has violated Section 8(a)(1) and (5) of the
National Labor Relations Act since 1998 by refusing to bargain
with the Hotel & Restaurant Employees Union, Local 25, AFL–
CIO, and its predecessor, Food & Beverage Workers Union,
Local 32, AFL–CIO, which represent catering and cafeteria
workers.2 Ridgewell’s primary defense is that the caterers are
independent contractors and thus are not covered by the Act.
This case was tried on April 6, 2000 in Washington, D.C.,3
during which the General Counsel called three witnesses and
the Respondent called two witnesses. Then, both parties filed
briefs on May 11, 2000.
II. FINDINGS OF FACT
The U.S. House of Representatives in Washington, D.C. oc-
cupies the U.S. Capitol, the Rayburn Building, the Longworth
Building and the Cannon Building, all of which have at least
one cafeteria, coffee shop or snack bar. Special events which
are catered are also held elsewhere in these buildings. In 1987,
the Union organized the cafeteria workers and caterers, which
was at about the same time Congress privatized the food ser-
vice operation for the U.S. House. Bids were solicited and
Service America was awarded the contract, with which the
Union negotiated a contract. However, three years later Con-
gress took back control of the House’s food service operation.
That changed again in 1994 when Marriott Corporate Ser-
vices/Thompson Hospitality L.P. (Marriott) was awarded the
contract. And the Union negotiated a collective-bargaining
agreement with Marriott as well, which ran until December 31,
1997 (G.C. Ex. 5; Tr. 49–50, 53). Guest Services, Inc. (GSI), a
Fairfax, Virginia company, succeeded Marriott on January 15,
1998 (Tr. 5, 68–69, 75–76). GSI only wanted the cafeteria
operation, however, which consisted of about 130 employees.
GSI then reached a collective-bargaining agreement with the
Union (G.C. Ex. 7). The catering operation, which consisted of
30 workers, was then subcontracted out by GSI to two other
companies: UCW, Inc. (Uptown Catering) and Ridgewell’s, a

1 Upon any publication of this Decision by the National Labor Rela-
tions Board, changes may have been made by the Board’s Executive
Secretary to the original Decision of the Presiding Judge.
2 The General Counsel’s original August 26, 1999 complaint and
December 22, 1999 amended complaint alleged other violations of the
Act which were settled on March 17, 2000, with the withdrawal of the
underlying charge in Case 5–CA–28329 (G.C. Ex. 1(0)).
3 Tr. 1 is hereby corrected to reflect the trial location.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 40
Bethesda, Maryland business which provides services exceed-
ing $50,000 yearly outside of Maryland and Washington, D.C.
(G.C. Ex. 1(L); Tr. 52, 77, 84–85). Ridgewell’s agreed to cater
House events after 2 p.m., such as dinners and cocktail recep-
tions. Ridgewell’s typically prepares its food in Bethesda,
which is then eaten at various events in the Washington, D.C.
area, including private homes, foreign embassies, and the White
House (Tr. 228, 240–41).
On January 10, 1998, Local 32 reached a collective-
bargaining agreement with Uptown, which catered morning and
lunchtime events at the U.S. House (G.C. Ex. 8; Tr. 161). Up-
town had previously worked with Marriott, utilizing the Un-
ion’s cafeteria workers to prepare the food used for catering on
the House premises (Tr. 85–86). Local 32’s President, Minor
Christian, asked Ridgewell’s to bargain as well in early January
1998. On January 15, 1998, Ridgewell’s President, Thomas
Keon, wrote to Christian saying that he was “willing to bargain
in good faith” but that could not “enter into any further discus-
sions with you” until Ridgewell’s contract with GSI was final-
ized (G.C. Ex. 9; Tr. 44, 96–99, 107, 140, 239). In the mean-
time, Keon wanted to use the Union’s workers to staff various
events at the House. And the Union agreed to provide 30 wait-
ers, bartenders and carvers from existing “A” and “B” lists
(G.C. Exs. 11–12; Tr. 101–06, 141–42, 242–44). Those on the
“A” list received various benefits under Marriott’s contract, but
those on the “B” list did not (Tr. 65–67). According to Keon,
he discussed the possibility of using these workers permanently
as independent contractors in early January, and Christian
stated that this arrangement “may work.” But Christian denied
ever saying any such thing (R. Ex. 5; Tr. 247, 266–67). Upon
learning that Ridgewell’s reached final agreement with GSI,
Christian called Keon in February. But Keon said that Ridge-
well’s would continue to prepare the food in Bethesda and
would use the Union’s people only as independent contractors,
as it so used other workers at other venues in the Washington
area (G.C. Ex. 13; Tr. 99–100, 108–09, 240). But the Union
was concerned that, as independent contractors, the workers
would be unable to collect unemployment benefits during the
five-to-six months a year when they were not working because
of Congressional recesses (Tr. 116, 158–59). Christian told the
workers that the Union would not accept Ridgewell’s offer that
they work as independent contractors (Tr. 146). And on April
17, Christian requested in writing that Keon bargain, but Keon
responded on April 20 that these workers were not Ridgewell’s
employees (G.C. Exs. 14–15). So, Christian filed an unfair
labor practice charge against Ridgewell’s on June 29, 1998
(G.C. Ex. 1–I; Tr. 112).
On May 1, 1998, Local 32 was absorbed into Local 25. Be-
fore the merger, Local 25 had over 5000 members in the Wash-
ington, D.C. area. By contrast, Local 32 had about 1700 mem-
bers in the Washington area and throughout the Commonwealth
of Virginia (G.C. Ex. 4; Tr. 18–19, 32–33). Two or three
weeks before the merger, notices were mailed to the last known
addresses of each member of both locals, in English and Span-
ish, announcing that the Executive Boards of Local 25 and
Local 32 had voted to merge (G.C. Ex. 2, pp. 2–5; Tr. 17, 31–
32). The rank-and-file of Local 25 met on April 15, at a regu-
larly scheduled meeting in a church, and voted via paper ballots
in the church pews, 157 to 4, to approve the merger (G.C. Ex.
2, p. 1; Tr. 34). Notices of the meeting were posted before
April 15 in various locations where Local 25 members worked
(Tr. 31). Local 32 members voted on April 18, 23, 27 and 30,
in Richmond, Washington, Norfolk, and Williamsburg, respec-
tively. These votes also approved the merger as follows:

Richmond 26–0
Washington 178–51
Norfolk 12–1
Williamsburg 43–0

(G.C. Ex. 2, p. 1)
Since early 1998, the Union’s wait staff has continued to
work for Ridgewell’s afternoon events at the House (Tr. 249–
53). Most of this staff have worked catered events at the House
for many years, and many are at least 60 years old (Tr. 54, 66).
Many of these workers would also perform breakfast and lunch
events for Uptown and then work afternoon and evening events
for Ridgewell’s. For example, a waiter or bartender would
wear his own tuxedo for the whole day and use his own bar-
tending tools for both employers (Tr. 164, 188–89, 194–96).
Ridgewell’s used some union “A” and “B" list caterers at
House events not covered by its contract with GSI, and some-
times used nonunion workers at GSI House events when it
needed more people than the “A” and “B” lists would provide
(R. Ex. 4; Tr. 135–36, 222–27, 254, 258).
On July 21, Keon informed Christian that pay rates, gratuity
practice, and seniority would be maintained from the Marriott
contract. But he added that each catering staff member would
be required to complete a Form W-9 for tax purposes, sign
“acknowledgement of Ridgewells rules and regulation of con-
duct,” and undergo orientation. Also, Ridgewell’s would
schedule the catering staff itself (G.C. Ex. 16). But in a July
29, 1998 letter, Christian reiterated his demand that Ridge-
well’s “negotiate over the broad range of issues found under the
general heading of wages, hours and working conditions” (G.C.
Ex. 17). But Ridgewell’s did not respond. Instead, on August
1, it implemented various changes. The catering staff would
call Ridgewell’s on Fridays to receive their assignments for the
following week (Tr. 166–67). Although Ridgewell’s conducted
a general orientation program for the workers, attendance was
not compulsory (Tr. 209–10). Ridgewell’s paid the workers
every two weeks, either by mail or in person at Bethesda. By
contrast, Uptown and Marriott paid the workers at the House
(Tr. 186–87). If a worker went to Bethesda, he would not have
access to the lunch room or locker room there, which were
reserved for hourly or salaried employees (Tr. 197, 221). But
no worker was required to come to Bethesda (Tr. 200). No
worker would wear a Ridgewell’s logo on his tuxedo (Tr. 214).
A worker could decline to work a House event (Tr. 221). Fur-
ther, Ridgewell’s did not evaluate a worker’s performance,
although one Ridgewell’s supervisor would be present at each
House event (Tr. 180, 220–21, 242). That supervisor could
issue discipline for tardiness or a rules violation (Tr. 260).
Indeed, two workers were not used again by Ridgewell’s after
May 26, 1998 when they were caught taking equipment or food
from a House event (G.C. Ex. 21). Thereafter, each worker
received written company “service standards” (G.C. Ex. 20).

RIDGEWELL’S, INC. 41
And the workers all received Form 1099 tax forms for 1998 and
1999 (R. Exs. 2–3). In that connection, Ridgewell’s paid no
benefits and no deductions were made from compensation (Tr.
187–88, 216, 218, 250). Finally, Ridgewell’s carried insurance
for the workers (Tr. 232).
III. ANALYSIS
A. The Section 8(a)(5) Allegations
The General Counsel alleges that since January 1998 Ridge-
well’s has violated its statutory duty to bargain with the Union
over the terms and conditions of employment of the wait staff
working afternoon and evening events at the U.S. House.
Ridgewell’s offers four defenses to the alleged violation of
Section 8(a)(5) of the Act: (a) the wait staff are independent
contractors, which are specifically exempted from the Act’s
coverage by Section 2(3); (b) Ridgewell’s operation is signifi-
cantly different from the predecessor employer’s (Marriott)
business, thus exempting it from any duty to bargain; (c) the
Union’s tardy bargaining demand estops it from asserting any
bargaining obligation against Ridgewell’s; and (d) the merger
between Locals 25 and 32 in May 1998 was invalid, thus
relieving the Respondent of any duty to bargain with the
surviving entity, Local 25. As discussed infra, however, the
Presiding Judge rejects all of these defenses.
Following the expiration of an old employer’s collective-
bargaining agreement, a successor employer must bargain with
the incumbent union if the new employer’s operation is similar
to the old employer’s and if the new employer hires a majority
of the existing bargaining unit. NLRB v. Burns Security Ser-
vices, 406 U.S. 272 (1972); J. P. Mascaro & Sons, 313 NLRB
385 (1993). Ridgewell’s first defense is that there is a major
difference between the Marriott wait staff and the Ridgewell’s
wait staff because the former were “employees” and the latter
are “independent contractors.” But this simplistic argument
ignores the fact that Ridgewell’s has used the vast majority of
the approximately 30-member Marriott wait staff from January
1998 to the present. Further, Ridgewell’s unilateral labeling of
this wait staff as independent contractors does not make them
so. Rather, the wait staff possesses most of the well-established
indicia of employee status. For example, Ridgewell’s sched-
ules the House catering events and the wait staff’s hours at
these events. It also posts a supervisor at each event. Although
the experienced staff is not closely supervised, it is significant
that the Ridgewell’s supervisor possesses, and uses, the ulti-
mate disciplinary power of termination. To be sure, there are
some indicia of independent contractor status, such as the wait
staff’s use of their own bartending tools, wearing their own
tuxedos lacking a Ridgewell’s logo, and their ability to work
other House events. And Ridgewell’s treats them different
from their own employees by issuing Tax Form 1099s to the
wait staff and generally isolating them from the Bethesda-based
employees. But the wait staff used their own tools and non-
logoed tuxedos for Marriott and Uptown, which both treated
them as employees. And the evidence shows very little outside
work by the wait staff, which is kept very busy by Ridgewell’s
and Uptown when Congress is in session, and is drawing un-
employment compensation when Congress is away. In sum,
the indicia of independent contractor status are minor when
compared to the aforementioned factors establishing that the
wait staff have “no significant entrepreneurial opportunity” for
gain or loss. NLRB v. United Insurance Co., 390 U.S. 254
(1968); Roadway Package System, Inc., 326 NLRB 842 (1998).
Compare Dial-A-Mattress Operating Corp., 326 NLRB 884
(1998) (owner-operator truck drivers hire their own employees
and form their own companies, showing independent contractor
status). Therefore, it is concluded that since 1998 Ridgewell’s
continued to use substantially the same wait staff employees in
catering events at the House.
Ridgewell’s second defense is that there is no substantial
continuity of Marriott’s pre-1998 business because Ridgewell’s
only caters afternoon and evening House events, bringing in the
food from Bethesda. By contrast, Marriott provided day-long
cafeteria service on the House premises in addition to operating
the catering service. But it is well-settled that a successor em-
ployer is still required to bargain even if only “a mere portion
of the predecessor’s operation” has been acquired. Tree-Free
Fiber Co., 328 NLRB 389 (1999); Phoenix Pipe & Tube Co.,
302 NLRB 122 (1991). Further, the business of Marriott and
Ridgewell’s is essentially the same, the House wait staff per-
forms exactly the same jobs in the same working conditions for
both employers, and both employers have the same customer
base: the House of Representatives. Thus, it is concluded that
there is substantial continuity between the Marriott and Ridge-
well operations. Fall River Dyeing Corp. v. NLRB, 482 U.S. 27
(1987). And because there is also substantial continuity of
employees, as discussed supra, it is further concluded that
Ridgewell’s is a successor employer, subject to the duty to
bargain with the Union, within the meaning of Burns.
Ridgewell’s third defense is that the Union is estopped from
claiming its right to bargain because it waited until April 1998
to make a bargaining demand, which was three months after
Ridgewell’s assumed the House afternoon/evening catering
operation and used the wait staff therewith. The Presiding
Judge, however, accepts the credible testimony of Minor Chris-
tian, Local 32’s President, that he orally requested bargaining in
an early January 1998 meeting with Ridgewell’s President
Thomas Keon. Although the Respondent maintains that it al-
ways told the Union that the wait staff had to be independent
contractors, it is significant that at trial Keon did not refute
Christian’s testimony. Also, Keon wrote to Christian on Janu-
ary 15, 1998 that he was “willing to bargain in good faith” as
soon as Ridgewell’s finalized its subcontract with GSI. While
Christian made the wait staff available to Ridgewell’s starting
in January 1998, it is also clear that he never accepted Keon’s
position that the wait staff were independent contractors. In-
deed, Keon merely testified that Christian said that the inde-
pendent contractor issue “may” work, notwithstanding Chris-
tian’s denial of even conceding this possibility. More impor-
tantly though, Christian made a written bargaining demand in
April 1998 and, when that yielded no result, he filed an unfair
labor practice charge in June 1998. Thus, the Respondent is
wrong in contending that the Union “led the Company to rea-
sonably believe the independent contractor matter was accept-
able to the Union.” Accordingly, there is no equitable argu-
ment saving Ridgewell’s from its duty to bargain with the Un-
ion.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 42
Finally, Ridgewell’s questions the validity of the May 1,
1998 Local 32-Local 25 merger in an attempt to avoid its bar-
gaining obligation. At the outset, Ridgewell’s sudden concern
with the merger is ironic because of its lack of any timely pro-
tests in 1998. Nevertheless, its recent objections are irrelevant
concerning Local 32’s timely bargaining demands from January
to April 1998, which Ridgewell’s simply ignored by claiming
the wait staff were all independent contractors. As for claiming
that it had no duty to bargain with the merged entity, Local 25,
after May 1, 1998, internal union matters such as mergers are
generally not a subject for government oversight unless: (a) the
members were not afforded due process in voting on the
merger; or (b) the merged entity does not provide substantial
continuity of representation for the old union’s members.
NLRB v. Financial Institution Employees, 475 U.S. 192 (1986).
And the Respondent has the burden to prove either of these
negative factors. May Department Stores Co., 289 NLRB 661
(1988).
Regarding the due process factor, the Board focuses on
whether the members received adequate notice of the vote,
whether there was adequate opportunity for discussion before
the vote, and whether the vote was conducted by secret ballot.
May, supra at 665. Further, as Ridgewell’s recognizes, the
Board is mainly concerned with protecting the smaller union’s
procedural rights, which in this case was Local 32. See Amal-
gamated Industrial & Service Workers Local 6 (X-L Plastics),
324 NLRB 647, 650 (1997). But the evidence clearly shows
that notices of the proposed merger were mailed to all the
known addresses of Local 32 members two or three weeks
before the vote. Also, the 1700 or so members voted 259–52,
in four separate meetings throughout Virginia and Washington,
D.C., in favor of the merger. While the record is silent on the
opportunity for discussion before the four votes, or whether the
votes were held by secret ballot, Ridgewell’s faults the General
Counsel for failing to examine at trial Local 32’s President
Minor Christian about these matters and, further, requests that
an adverse inference be drawn regarding this failure. However,
such an inference is unwarranted because Ridgewell’s has the
burden of proof on this issue and still failed to call any wit-
nesses on its own to prove any lack of due process regarding
the merger vote. See Southern Container, Inc., 330 NLRB 400
(1999). Further, the fact that only 18% of Local 32 members
voted on the merger question does not raise an inference of a
due process violation. Central Washington Hospital, 303
NLRB 404, 414 (1991). Therefore, in the absence of any proof
of egregious violation, it cannot be concluded that the merger
vote was invalid. See News/Sun Sentinel Co., 290 NLRB 1171,
1175 (1988).
As for whether the merger was “sufficiently dramatic” to al-
ter Local 32’s identity,” NLRB v. Financial Institution Employ-
ees, 475 U.S. 192, 206 (1986), the Presiding Judge concludes
that the May 1, 1998 merger adequately protected the smaller
union. Minor Christian, Local 32’s President, retained a
prominent role in Local 25 and there is no evidence of any
onerous control of the old entity after the merger vote. Indeed,
Local 32 was originally part of Local 25 before declaring its
independence around 1988 and then deciding to reunite in 1998
(G.C. Ex. 2). In short, Ridgewell’s duty to bargain with Local
32 continued with Local 25.
B. Other Matters
At trial, we left open the matter of the admissibiity of Gen-
eral Counsel Exhibit 6, which is a list of “A” and “B” wait staff
workers as of late 1997 or early 1998, which is the time period
between Marriott’s operation and GSI’s operation. The list is
remarkably similar to a list of workers provided by Christian to
Keon in early 1998. The two lists show a continuity of the
workforce into Ridgewell’s tenure. Accordingly, General
Counsel Exhibit 6 is relevant and will be received.
Next, on May 11, 2000, Ridgewell’s filed a motion to correct
the transcript at 14 places. The General Counsel objected to
one of those proposed corrections changing a date at page 209
from December 1998 to September 1998. The Presiding Judge
finds the change irrelevant but nevertheless also finds no basis
for the proposed change. Thus, the motion to correct the tran-
script will be granted as to the 13 changes only.
IV. CONCLUSIONS OF LAW
1. The Respondent, Ridgewell’s, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6) and
(7) of the Act.
2. The Unions, Hotel & Restaurant Employees Union, Local
25, AFL–CIO, and Food and Beverage Workers Union Local
32, AFL–CIO, are labor organization within the meaning of
Section 2(5) of the Act.
3. As alleged in paragraphs 12 and 18 of the General Coun-
sel’s complaint, the Respondent violated Section 8(a)(1) and (5)
of the Act by refusing to bargain with Local 32 from January
1998 to May 1, 1998, and by refusing to bargain with Local 25
after May 1, 1998.
4. The Respondent violated Section 8(a)(1) and (5) by uni-
laterally making changes, not specified in the complaint, to the
terms and conditions of employment of the wait staff after
January 1998.4
5. The unfair labor practices of the Respondent, set forth in
paragraph 3 and 4, above, affect commerce within the meaning
of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]

4 Because the General Counsel introduced no evidence regarding the
alleged failure of the Respondent to make contributions to the fringe
benefit funds specified in the Local 32–Marriott contract, this aspect of
paragraph 13 of the complaint must be dismissed.