Riviera Supper Club

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 1217 (N.L.R.B. 1992)

1217
309 NLRB No. 179
RIVIERA SUPPER CLUB
1 All dates hereafter are in 1990.
2 We therefore find it unnecessary to consider whether the viola-
tion may have been made out earlier, such as July 27, or the unfixed
date the Respondent hired its new work force, or on a theory which
distinguishes the application of Sterling.
3 Member Oviatt agrees that the Respondent did not have a good-
faith doubt of the Union’s majority status when it reopened its res-
taurant on October 1, but he relies on the facts of this case, in par-
ticular that: (1) the restaurant remained closed only for 9 months;
(2) during this time the Respondent’s owner told former employees
that he expected to operate nonunion; and (3) when the Respondent
reopened a majority of its unit complement were former employees.
Member Oviatt finds Sterling to be factually inapposite.
4 In affirming, we do not rely on the judge’s references to em-
ployee polling under Struksnes Construction, 165 NLRB 1062
(1967), and his apparent analogizing of such polling to the facts of
this case, in which no polling occurred. We also do not rely on his
statement that an employer should be required to notify the union
of its doubt of the union’s majority support prior to withdrawal of
recognition, and his finding that the Respondent failed to satisfy this
Continued
Riviera Supper Club and Local 6-578, Oil, Chemi-
cal and Atomic Workers International Union,
AFL–CIO. Case 18–CA–11524
December 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On June 26, 1992, Administrative Law Judge Fred-
erick C. Herzog issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief answering the Re-
spondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified below and to adopt the rec-
ommended Order.
As more fully detailed in the judge’s decision, the
Respondent’s restaurant burned down in January
1990,1 and because of the consequent cessation of op-
erations, all of its union-represented employees were
discharged. The restaurant remained closed for about 8
months; during that time, the parties’ collective-bar-
gaining agreement expired. On October 1, the Re-
spondent reopened the restaurant, its operations vir-
tually unchanged, with a full staff of 18 employees, 10
of whom the Respondent had employed prior to the
fire. The Union, on learning that the Respondent was
rebuilding the facility and intended to reopen, re-
quested bargaining on July 27, and subsequently re-
newed the request. The Respondent did not reply to
the Union’s requests. The judge, rejecting the Re-
spondent’s contention that it had lawfully withdrawn
recognition based on its asserted good-faith doubt of
the Union’s continuing majority status, concluded that,
by failing to respond to the Union’s bargaining de-
mand, the Respondent violated Section 8(a)(5) and (1)
on and after July 27. We agree with the judge, as ex-
plained below.
In Sterling Processing Corp., 291 NLRB 208
(1988), a case with some factual similarities to the in-
stant case, the employer’s union-represented employees
were discharged with no reasonable expectation of re-
call when the employer closed its plant for economic
reasons. After a 19-month hiatus during which the par-
ties’ collective-bargaining agreement expired, the plant
reopened with its operations substantially unchanged
and with a majority of the employee complement hav-
ing been on the employer’s payroll prior to the closure.
In the circumstances of that case, the Board concluded,
inter alia, that the employer did not violate the Act by
making unilateral determinations of terms and condi-
tions of employment prior to reestablishing its oper-
ation, finding generally that the employer had no obli-
gation to bargain prior to the hiring of a representative
complement of employees. The Board found, however,
that the employer’s bargaining obligation renewed
when it reopened employing a representative com-
plement of employees, the majority of whom were em-
ployees prior to the closure. Id. at 209–210.
Although not cited by the parties or the judge, we
recognize that Sterling has potential impact here with
respect to the date on which the Respondent’s statutory
duty to bargain was effective. However, in light of the
complaint allegations in this case, i.e., alleging gen-
erally a refusal to recognize and bargain with the
Union rather than the more specific allegation of uni-
lateral changes in working conditions (as was the case
in Sterling), we find that the Respondent’s unlawful re-
fusal to bargain was proven no later than October 1,
when the Respondent reopened its restaurant with a
full employee staff, the majority of which was com-
prised of unit employees who had worked for the Re-
spondent prior to the fire.2 The Union’s bargaining re-
quest was a continuing one, and remained effective as
of October 1. See, e.g., Fall River Dyeing Corp. v.
NLRB, 482 U.S. 27, 52–53 (1987), affg. 775 F.2d 425
(1st Cir. 1985); Sterling, supra at 217.3 Accordingly,
we affirm the judge’s finding that the Respondent un-
lawfully failed to respond to the Union’s bargaining re-
quest in light of the above, consistent with the com-
plaint allegations, with the judge’s recommended rem-
edy, and with Sterling.
In adopting the judge’s decision, we also affirm his
rejection of the several components making up the Re-
spondent’s asserted good-faith doubt of the Union’s
continuing majority status, as set forth in section
III,D,2 of the decision.4 However, with respect to his
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
requirement here. Finally, we note that Hutchinson-Hayes Inter-
national, 264 NLRB 1300 (1982), a case cited in passing by the
judge, was recently overruled regarding its statement of an employ-
er’s burden of proof to establish a lawful withdrawal of recognition.
See Laidlaw Waste Systems, 307 NLRB 1211 (1992). None of the
qualifications above has a significant impact on our decision in this
case.
5 Like the judge, we find it unnecessary to evaluate the substance
of the employee statements to determine whether each constituted a
repudiation of the Union as collective-bargaining representative and
we note that the judge did not make underlying fact findings in this
regard.
In light of the above finding that the employee statements were
tainted, we also find it unnecessary to consider the General Coun-
sel’s contention in its answering brief that the Respondent has failed
to except to the judge’s analysis of this issue, and that the Respond-
ent’s affirmative defense in this regard can be rejected because of
the limited scope of the Respondent’s exceptions.
1 Sec. 8(a)(1) of the Act provides that, ‘‘It shall be an unfair labor
practice for an employer . . . to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section 7:
. . . . ’’
Sec. 7 of the Act provides that, ‘‘Employees shall have the right
to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and shall also have
the right to refrain from any or all such activities except to the ex-
tent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as au-
thorized in section 8(a)(3).’’
2 Sec. 8(a)(5) of the Act provides that, ‘‘It shall be an unfair labor
practice for an employer . . . to refuse to bargain collectively with
the representatives of his employees, subject to the provisions of sec-
tion 9(a) . . . .’’
Sec. 8(d) of the Act provides that, ‘‘For the purposes of this sec-
tion, to bargain collectively is the performance of the mutual obliga-
tion of the employer and the representative of the employees to meet
at reasonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or the nego-
tiation of an agreement or any question arising thereunder, and the
execution of a written contract incorporating any agreement reached
if requested by either party, but such obligation does not compel ei-
ther party to agree to a proposal or require the making of a conces-
sion: . . . . ’’
disposition of the various employee statements alleg-
edly repudiating the Union as collective-bargaining
representative, we agree that such statements were in-
effective, but solely because they were tainted by the
remarks of the Respondent, through its agents Duane
and Dallas Hansen, that the Respondent intended to
operate nonunion when the restaurant reopened. The
Hansens made those remarks immediately before the
employees made the statements seized on by the Re-
spondent as a basis for good-faith doubt. The Board
has found such employer statements coercive and un-
lawful, and sufficient to taint, without further consider-
ation, a showing of employees’ rejection of the Union.
See, e.g., Williams Enterprises, 301 NLRB 167 (1991),
Kessel Food Markets, 287 NLRB 426, 428–429
(1987), enf. 868 F.2d 881 (6th Cir. 1989). In light of
our agreement with the judge that the employee state-
ments were thus tainted, we do not rely on the rest of
his analysis concerning them.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Riviera Supper Club, Aus-
tin, Minnesota, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Marlin O. Osthus, Esq., for the General Counsel.
Kermit Hoversten and Daniel M. Rankin, Esqs. (Hoversten,
Strom, Johnson & Rysavy), of Austin, Minnesota, for the
Respondent.
Larry D. Kelley, of Austin, Minnesota, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in Austin, Minnesota, on July 30,
1991, and is based on a charge filed by Local 6-578, Oil,
Chemical and Atomic Workers International Union, AFL–
CIO (the Union) on November 1, 1990, alleging generally
that Riviera Supper Club (Respondent) committed certain
violations of Section 8(a)(1)1 and (5)2 of the National Labor
Relations Act (the Act). On May 21, 1991, the Regional Di-
rector for Region 18 of the National Labor Relations Board
(the Board) issued a complaint and notice of hearing alleging
violations of Section 8(a)(1) and (5) of the Act. Respondent
thereafter filed a timely answer to the allegations contained
within the complaint, denying all wrongdoing.
All parties appeared at the hearing, and were given full
opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, to argue orally and
file briefs. Based upon the record, my consideration of the
briefs filed by counsel for the General Counsel and Counsel
for Respondent, and my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges that Respondent is a proprietorship
with an office and place of business in Austin, Minnesota,
where at all times material herein it has been engaged in the
business of operating a public restaurant selling food and
beverages; that upon a projection of its operations since on
or about October 1, 1990, at which time Respondent re-
opened its facility and resumed its operations, Respondent, in
the course and conduct of its business operations will annu-
ally derive gross revenues in excess of $500,000; and that,
based on a projection of its operations since on or about Oc-
tober 1, 1990, Respondent, in the course and conduct of its
business operations will annually purchase and receive at its
facility described above goods and materials valued in excess
of $50,000 directly from suppliers located outside the State
of Minnesota.
Respondent, in its answer, while generally admitting the
allegations of the complaint having to do with the nature and
1219RIVIERA SUPPER CLUB
location of its business, alleged that the business was not in
operation during the period from January 20 through Septem-
ber 30, 1990, due to a fire, denied that it would derive an-
nual gross revenues in excess of $500,000, and affirmatively
alleged that at no time since Respondent commenced oper-
ations in 1974 has Respondent derived annual gross revenues
in excess of $500,000; accordingly, Respondent denied that
Respondent is engaged in commerce, or in a business affect-
ing commerce, within the meaning of Section 2(2), (6), and
(7) of the Act.
Accordingly, this matter remains in issue, and shall be dis-
cussed, infra.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is now, and at all times material herein has been,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Background and Labor Relations History
The restaurant known as the Riviera Supper Club has op-
erated in Austin, Minnesota, for a number of years. In 1974
it was purchased by Duane Hansen, and it is still owned by
him.
Though denied at trial by Respondent, it is clear that even
prior to its purchase by Hansen, its employees had been rep-
resented in collective bargaining by the Union. Respondent,
according to the credited and uncontroverted testimony of the
Union’s business manager, Larry Kelley, through its mem-
bership in a multiemployer bargaining association, was party
to a series of collective-bargaining agreements with the
Union, for over 20 years. The last such agreement was effec-
tive from July 1, 1987 through July 1, 1990.
At trial, Respondent effectively amended its answer to
admit that, if the Union is entitled to representation rights,
the appropriate unit is to be described as follows:
All full-time and regular part-time employees employed
at [Respondent’s] Austin, Minnesota restaurant, includ-
ing cooks, waitresses/waiters, kitchen helpers, dish-
washers, busboys/busgirls, hostesses and janitors; ex-
cluding office clerical employees, guards and super-
visors as defined in the Act.
B. Facts Relating to the Jurisdictional Question
It was stipulated at trial that in 1989 Respondent pur-
chased goods and products valued at $114,582.96 from sup-
pliers located outside the State of Minnesota, and that in
1990, up to November 25, it purchased goods and services
valued at $46,357.29 from suppliers located outside the State.
While Counsel for the General Counsel appears to concede
that Respondent never experienced sales in excess of
$500,000 in any year prior to the fire, it gross sales since
a fire (explained later herein), on a projected basis, are suffi-
cient to allow the Board to assert jurisdiction. In this respect,
the parties stipulated that after the restaurant reopened in Oc-
tober 1990 the restaurant engaged in the following gross
sales during the time period preceding the trial herein:
October 1990 $55,319
November 1990 56,021
December 1990 67,179
January 1991 50,184
February 1991 47,503
March 1991 44,047
April 1991 46,757
May 1991 49,992
June 1991 50,537
July 1991 43,446
—————
Ten-month total $460,985
Respondent’s position is that, since there is no guarantee
that the level of gross receipts shown above exceeds that
which it experienced prior to the fire, and since there is no
guarantee that they will continue at this higher level, they
must be considered as a sort of ‘‘honeymoon,’’ i.e., an ex-
ceptional and unrepresentative period, not sufficient to permit
a projection for the remaining 2 months. Respondent also as-
serts that it would be unfair to base a finding jurisdiction
upon figures relating to business done in a calendar year sub-
sequent to the time that the alleged unfair labor practices
were committed.
C. The Facts Relating to the Alleged Unfair
Labor Practices
On January 20, 1990, Respondent’s facility was destroyed
by a fire. Accordingly, it ceased operations for a time. Dur-
ing the time that Respondent was out of operations, its col-
lective-bargaining agreement with the Union expired, on July
1, 1990.
On February 23, 1990 Respondent wrote to the
Union, as follows:
As you are already aware, my restaurant being oper-
ated under the name of The Riviera, burned down.
Because of this unfortunate circumstances [sic] re-
gretfully I have had to terminate all our employees. In
the past we have participated with other restaurant own-
ers in negotiating labor contracts with your Union. Due
to the foregoing circumstances, please be advised that
we will no longer participate in bargaining with the
other restaurants in respect to any further contract nego-
tiations. Because we are no longer operating a res-
taurant and have no employees, we are further notifying
you that our working agreement with (the Union) [will]
be terminated as of the last day of June 1990.
We ask that this letter be notice to you and to each
of the other restaurant owners that we will not be par-
ticipating in any negotiations this year which we under-
stand may be forthcoming in a few months.
The letter showed on its face that copies were sent to other
restaurant owners who were parties to the collective-bargain-
ing agreement with the Union.
Also on February 23, 1990, Respondent sent letters to its
employees stating, inter alia, that,
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Since the restaurant burned down, we have been very
uncertain as to any future plans relative to the res-
taurant. Because of this situation we have not had any
work for any of you and cannot say when or if any
work will be available in the future.
Each of you have the need to plan for your own fu-
ture. We therefore regretfully inform you that it is nec-
essary for us to terminate your employment effective
immediately.
A copy of these letters to employees was sent to the
Union.
On July 27, 1990, the Union sent Respondent a letter of
congratulation concerning the rebuilding of its business facil-
ity, and its anticipated reopening. The letter went on to state:
We recently met with other restaurant operators in
Austin and renegotiated the labor agreement. Local 6-
578 looks forward to renewing your participation and
are [sic] extending an invitation to you to come down
to our offices and review the current agreement. Or you
may go to Kermit Hoversten’s office.
On August 23, 1990, the Union again wrote to Respond-
ent, calling attention to the fact that it had not heard any re-
sponse to its letter of July 27, and advising that ‘‘your re-
fusal can only be interpreted to mean that you intend to oper-
ate non-union.’’ The letter went on to refer to the good rela-
tionship between the Union and Respondent in the past, and
that the Union would take whatever measures were necessary
to inform the public of Respondent’s actions.
Respondent asserts that ‘‘because the Union failed or re-
fused to contact [Respondent] before the old contract expired
and negotiations for the new contract began, [Respondent]
believed that the Union no longer represented the new Rivi-
era employees,’’ and ‘‘that by terminating the old contract,
the Riviera employees were no longer unionized pursuant to
that contract.’’
While the new facility was under construction prospective
employees went there to inquire about jobs. According to
Duane Hansen, during such meetings, a majority of prospec-
tive employees advised him that they did not want to be
members of the Union when the restaurant reopened.
On August 6, 1990, Hansen’s son, Dallas, held a meeting
of all prospective waitresses at his apartment. Dallas was in
charge of hiring and supervising waitresses, in his capacity
as assistant manager of Respondent. Dallas advised his father
after the meeting that the waitresses unanimously agreed that
they didn’t want to be part of the Union.
On October 1, 1990, the restaurant was reopened for busi-
ness. It reopened with 18 employees, exclusive of the Hansen
family. Of these 18, 10 had worked for the old restaurant;
8 were new to the enterprise.
After the charge herein was filed, a decertification petition
was filed involving this unit. All except one of Respondent’s
employees signed the petition.
D. Analysis and Conclusions
1. The jurisdictional question must be answered contrary
to Respondent’s position.
In fact, the argument that figures used to support jurisdic-
tional findings should predate the commission of the alleged
unfair labor practices is completely without support. Re-
spondent has cited no authority for such a proposition, nor
could it. For it is clear from a reading of too many cases to
require citation that jurisdictional findings are routinely based
on figures relating to business done after the alleged unfair
labor practices.
Further, while it is true that at trial Respondent was not
permitted to speculate as to whether or not business would
return to that of 1989, it is also true that Respondent was not
qualified by his counsel to offer such an opinion about what
business would be in the future. And, it is also true that Re-
spondent’s owner was permitted to testify about his ‘‘feel-
ings’’ concerning whether or not the level of business he’d
experienced since reopening should be regarded as unusual,
and supply any factual basis he might have for expecting that
it would not continue. He could only respond, even to the
highly suggestive questions put to him, that it seemed to him
that there were a lot of ‘‘lookers’’ since he’d reopened, and
that he had no guarantee that they’d return.
However, the question of a guarantee is not relevant here.
What is relevant is whether or not the facts of revenues actu-
ally experienced since reopening reasonably lead to the con-
clusion that during the remaining 2 months of the year after
reopening Respondent will reach the gross revenue level of
$500,000. Hotel & Restaurant Employees Local 425 (Edel-
weiss, Inc.), 205 NLRB 236 (1973).
In this case it seems clear that the remaining two months
of the year following reopening would have to be exception-
ally poor, to permit Respondent to fall short of the $500,000
mark. After all, the lowest month experienced following the
fire was $43,446. But, it needed to average only $19,508
during those two months in order to reach the $500,000
level. And, even if Respondent were to fall back to the level
of business experienced in 1989 during those 2 remaining
months, it would still average $32,453 per month.
Thus, in order to find that Respondent is unlikely to reach
the $500,000 level, I would be required to accept as true that
it would fall over 57 percent from the level of $46,098
which it actually experienced following the fire, and over 39
percent from the level which it experienced during the year
before it reopened an entirely new facility.
Such a finding does not seem reasonable to me. Instead,
I find and conclude that, by projecting gross revenues from
the 10 months preceding the trial herein, the only figures
available following the reopening of Respondent’s business
following a fire, Respondent gross revenues may be reason-
ably expected to exceed $500,000. Northwest Smorgasbord,
163 NLRB 425 (1967).
Accordingly, since Respondent’s purchases of goods and
services from suppliers located outside the state of Minnesota
are conceded be Respondent to be sufficient to demonstrate
jurisdiction, provided the retail standard of gross revenues is
met, I find and conclude that Respondent is, and at all times
material, has been, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Similarly, the question about the validity of Respond-
ent’s refusal to bargain with the Union following its reopen-
ing must be answered contrary to Respondent’s position.
Several first principles applicable here should first be ex-
plained.
In Station KKHI, 284 NLRB 1339 (1987), the Board re-
affirmed the applicable principles regarding the presumption
1221RIVIERA SUPPER CLUB
of a collective-bargaining representative’s majority status and
the circumstances in which an employer lawfully may with-
draw recognition:
Absent unusual circumstances, there is an
irrebuttable presumption that a union enjoys majority
status during the first year following its certification.
On expiration of the certification year, the presumption
of majority status continues but may be rebutted. An
employer who wishes to withdraw recognition after a
year may do so in one of two ways: (1) by showing
that on the day recognition was withdrawn the union
did not in fact enjoy majority status, or (2) by present-
ing evidence of a sufficient objective basis for a reason-
able doubt of the union’s majority status at the time the
employer refused to bargain.
There is a similarly irrebuttable presumption of the
union’s majority status during the term of a collective-
bargaining agreement; at its expiration, an employer
may lawfully withdraw recognition on either of the two
grounds described above. See, e.g., KBMS, Inc., 278
NLRB 826, 846 (1986), BASF-Wyandotte Corp., 276
NLRB 498, 504 (1985), Burger Pits, Inc., 273 NLRB
1001 (1984), affd. sub nom. Hotel & Restaurant Em-
ployees Local 19 v. NLRB, 785 F.2d 797 (9th Cir.
1986). With respect to the second means of rebutting
the presumption, the employer’s expression of a reason-
able doubt must be raised in a context free of unfair
labor practices. See, e.g., KBMS, Inc., supra at 846,
Guerdon Industries, 218 NLRB 658, 659 (1975).
Indeed, the Board’s intent that withdrawal of recognition
shall be permitted only upon a demonstration of objective
criteria is underscored by its rule that an employer’s polling
of its employees concerning their union sympathies and sup-
port is permissible in certain situations. See generally
Struksnes Construction Co., 165 NLRB 1062 (1967). One
such situation may occur when the poll is conducted to ver-
ify the majority status of an incumbent union. The Board’s
established prerequisite for the lawful polling of employees
in this situation is that the employer have a reasonable doubt
of the unions’s majority status based on objective consider-
ations that would be sufficient for a lawful withdrawal of
recognition. See, e.g., Thomas Industries, 255 NLRB 646
647 (1981), Montgomery Ward & Co., 210 NLRB 717
(1974). The employer’s asserted basis must, of course, exist
at the time or before it undertakes the poll. See, e.g., Orion
Corp., 210 NLRB 633, 634 (1974), enfd. 515 F.2d 81 (7th
Cir. 1975). See generally discussion at Hojaca Corp., 291
NLRB 104 (1988).
Thus, using these principles, the General Counsel’s prima
facie case that the Union is entitled to continued recognition
by Respondent as the exclusive collective-bargaining rep-
resentative of Respondent’s employees in the unit described
above is established by facts not in controversy in this case,
i.e., the Union represented Respondent’s employees for many
years, and entered into numerous, successive collective-bar-
gaining agreements with Respondent, until the Respondent’s
operation of its business was interrupted for some months by
a fire which destroyed the facility in which the business op-
erated; at the time of the fire there was an existing collec-
tive-bargaining agreement.
Nor is it disputed that Respondent, upon resumption of its
restaurant operations following reconstruction of a facility,
refused to recognize the Union as the collective-bargaining
representative of its employees.
Instead, therefore, Respondent asserts, and now bears the
burden of proof that its withdrawal of recognition was privi-
leged by having been based upon a good faith doubt that the
Union still enjoyed the support of a majority of employees,
as demonstrated by consideration of objective criteria. Hutch-
inson-Hayes International, 264 NLRB 1300, 1304 (1982).
In its attempt to do so, Respondent has adduced evidence
upon a number of factors which it believes support its posi-
tion, including:
1. Respondent’s facility was destroyed by fire in Jan-
uary, 1990.
2. Respondent’s operation was interrupted until a
new facility was built.
3. All employees were sent letters of termination in
February, 1990.
4. Most former employees thereafter sought and ob-
tained employment elsewhere.
5. In February, 1990 Respondent notified the Union
of its withdrawal from a multi-employer bargaining
group, and termination of the existing collective bar-
gaining agreement at its expiration.
6. Upon reopening in October 1990 Respondent em-
ployed a number of employees who’d not worked for
it previously.
7. During the hiatus, and after reopening, a number
of employees made statements indicating disaffection
with the Union.
8. Upon learning of these alleged unfair labor prac-
tices, almost all employees signed a petition for decerti-
fication of the Union.
While Respondent notes that it was not immediately
known even whether or not Respondent would choose to re-
build from the fire and resume operations, it is undisputed
operations did resume only about eight months later. When
operations were resumed, Respondent operated with the same
name, in the same location, and under the same ownership.
The reopened operation had almost the same hours, opening
half an hour earlier and closing an hour earlier. Its seating
capacity was little changed, rising from 210 to 217. It contin-
ued to serve similar food. It utilized the same liquor license.
And it again employed 18 employees, exclusive of relatives
of the owner. Moreover, those employees worked in the
same classifications as existed before the fire.
Therefore, I find that Respondent’s business was essen-
tially unchanged when it reopened from that which existed
before the fire, and that no changes were made which might
justify Respondent’s refusal to bargain further with the
Union. Morton Development Corp., 299 NLRB 649 (1990);
Schmutz Foundry Co., 251 NLRB 1494 (1980).
Respondent’s termination of employment of the entire em-
ployee complement in February 1990 is not a determinative
factor in deciding the question of whether or not Respondent
continued to owe the Union the duty to bargain collectively.
NLRB v. Band-Age, Inc., 534 F.2d 1 (1st Cir. 1976), enfg.
217 NLRB 449 (1975).
Similarly, Respondent’s letter to the Union terminating its
collective bargaining agreement effective upon its expiration,
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and withdrawing from the multiemployer bargaining group,
is clearly insufficient to effect an end to the entire collective-
bargaining relationship. Such letters are often sent by parties
to collective-bargaining relationships where one party merely
wishes to change the manner of bargaining. Respondent’s let-
ter said nothing at all about withdrawing recognition from
the Union, and there was nothing in it which would have
placed the Union upon notice that any such result was in-
tended. I see absolutely no reason to place a different, or ad-
ditional, construction upon the letter than was expressed
therein. Indeed, I find it of particular importance in deciding
this case that Respondent never, prior to its withdrawal of
recognition, expressed the existence of its good-faith doubt
to the Union. If Respondent harbored doubt of the Union’s
continued majority status surely it is reasonable to require
that it express it to the Union, particularly if that alleged
doubt is to be utilized to privilege its withdrawal of recogni-
tion.
That its employees sought and obtained employment else-
where in the hiatus between the fire and the restaurant’s re-
opening is of no legal moment. It is merely a recognition of
the reality that employees must work and earn income to pay
their bills. In fact, a majority of former employees returned
to Respondent’s employ upon the reopening, i.e., 10 of 18
of the rebuilt restaurant’s employees were identical to those
employed before the fire. In any event, the law presumes that
the Union’s majority status among a complement of employ-
ees, once established, continues in the same proportion as
previously existed. Ocean Systems, 227 NLRB 1593 (1977);
Laystrom Mfg. Co., 131 NLRB 1482 (1965).
Finally, it is abundantly clear that the statements of dis-
affection concerning the Union allegedly made by prospec-
tive or actual employees are irrelevant to this case. For, the
Board will not consider an employer’s proffer of evidence to
support an alleged doubt of a union’s continuing majority
unless it is shown to have been in existence at or before the
time when the employer expresses or decides to express its
alleged doubt; to do otherwise would be to ignore the ‘‘good
faith’’ element necessary in such cases. See Station KKHI,
supra. And, if an employer utilizes a poll of employees to
support its allegation that the union has lost its majority, it
is still true that the employer’s asserted basis must, of course,
exist at the time or before it undertakes the poll. See, e.g.,
Orion Corp., supra.
Here, Respondent cannot meet these tests. Its owner,
Duane Hansen, testified that in sending the letter of February
23, 1990, to the Union, at a time which predated any alleged
expression of disaffection by employees about the Union, he
believed that unless employees wanted to join the Union, or
have some affiliation with it, when the restaurant was rebuilt,
he no longer was under any obligation to the Union. This ac-
cords with the unrebutted and credible testimony of the
Union’s agent, Kelley, to the effect that during the negotia-
tions between the Union and the multiemployer bargaining
group, in May of 1990, Respondent’s attorney told him that
Respondent was rebuilding and would operate as a nonunion
business.
Thus, it is clear that none of the alleged expressions of
employee disaffection were made until after the decision had
already been reached by Respondent to withdraw recognition
from the Union.
In fact, this was conveyed to prospective employees of the
new restaurant by Hansen. His own testimony establishes
that it was only after he told them of the fact that the new
restaurant would operate nonunion that they told him of their
lack of support for the Union.
Similarly, Hansen’s son, Dallas, told prospective wait-
resses that, since the negotiations with other restaurants had
been concluded and that Respondent had heard nothing from
the Union, if they wanted the Union it was something they’d
have to decide, and that Respondent was not planning on
being union. Such expressions as may have followed from
employees about their union sentiments are thought to be un-
reliable, as having been influenced by employees’ percep-
tions of what their prospective employer desires. Kessell
Food Markets, 287 NLRB 426 (1987).
Thus, since the evidence in this case fails to establish that
Respondent had any knowledge of employee disaffection,
much less that a majority of employees were opposed to the
Union, prior to the Union’s request of July 27, 1990, to bar-
gain collectively with it, it follows that the Respondent’s fail-
ure and refusal thereafter to honor the Union’s request must
be found to be unlawful. Louisiana Pacific Corp., 283 NLRB
1079 (1987). Certainly, reliance upon the filing of a decerti-
fication petition as evidence of a ‘‘good faith doubt’’ is mis-
placed when it is clear that Respondent did not even see the
petition until a few days preceding the trial herein; thus, it
obviously could have played no part in undergirding its
doubt expressed months earlier. Accordingly, I find and con-
clude that Respondent has violated Section 8(a)(5) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III, above,
found to constitute unfair labor practices occurring in con-
nection with the operations of Respondent described in sec-
tion I, above, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has violated Section 8(a)(5)
and (1) of the Act, I shall recommend that it be required to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the Act
by failing and refusing bargain collectively upon request with
the Union following the Union’s request of July 27, 1990.
4. All full-time and regular part-time employees employed
at Respondent’s Austin, Minnesota restaurant, including
cooks, waitresses/waiters, kitchen helpers, dishwashers,
busboys/busgirls, hostesses and janitors; excluding office
clerical employees, guards and supervisors as defined in the
1223RIVIERA SUPPER CLUB
3 All outstanding motions inconsistent with this recommended
Order are denied. If no exceptions are filed as provided by Sec.
102.46 of the Board’s Rules and Regulations, the findings, conclu-
sions, and recommended Order shall, as provided in Sec. 102.48 of
the Rules, be adopted by the Board and all objections to them shall
be deemed waived for all purposes.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Act, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of the Act.
5. At all times material herein, the Union has been and is
the exclusive bargaining representative of all the employees
within the above-described unit appropriate for the purposes
of collective bargaining within the meaning of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Riviera Supper Club, Austin, Minnesota,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to recognize and bargain collec-
tively in good faith with the Union.
(b) In any like or related manner interfering with, restrain-
ing or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and bargain collectively in good faith with
the Union as the exclusive collective-bargaining representa-
tive of its employees in the unit described above and, if an
agreement is reached, reduce it to writing and sign it.
(b) Post at its facility in Austin, Minnesota, copies of the
attached notice marked ‘‘Appendix.’’4 Copies of the notice,
on forms provided by the Regional Director for Region 18,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
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 fail or refuse to recognize or, on request,
bargain collectively in good faith with Local 6-578, Oil,
Chemical and Atomic Workers International Union, AFL–
CIO in the appropriate unit set forth below.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, on request, bargain collectively with Local 6-
578, Oil, Chemical and Atomic Workers International Union,
AFL–CIO as the exclusive bargaining representative for our
employees in the unit description, below, with respect to
wages, hours, and other terms and conditions of employment
and, if an understanding is reached, embody such understand-
ing in a signed contract. The appropriate unit is:
All full-time and regular part-time employees employed
at our Austin, Minnesota restaurant, including cooks,
waitresses/waiters, kitchen helpers, dishwashers, bus-
boys/busgirls, hostesses and janitors; excluding office
clerical employees, guards and supervisors as defined in
the Act.
RIVIERA SUPPER CLUB