Schnelli Enterprises, Inc. d/b/a Cellar Restaurant

National Labor Relations Board - Board Decisions

Jul 12, 1982

262 N.L.R.B. 796 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schnelli Enterprises, Inc. d/b/a Cellar Restaurant
and Hotel & Restaurant Employees & Bartend-
ers' Union of Long Beach & Orange County,
Local 681, AFL-CIO, chartered by Hotel and
Restaurant Employees and Bartenders Interna-
tional Union. Case 21-CA-19582
July 12, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 24, 1982, Administrative Law
Judge David P. McDonald issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein.
The Administrative Law Judge has found, and
we agree, that Respondent violated Section 8(a)(5)
and (1) of the Act by failing to provide the Union
with requested relevant bargaining information and
by failing on and after August 26, 1980, to meet
and negotiate in good faith with the Union as the
certified bargaining representative of Respondent's
employees. We find merit, however, in Respond-
ent's exceptions to the Administrative Law Judge's
remedial recommendation that the Union's initial
year of certification begin anew on the date Re-
spondent resumes bargaining in good faith.
Absent flagrant violations' or a respondent em-
ployer's history of failing to reach bargaining
agreements with unions,2 the Board's traditional re-
medial practice has been to extend a union's certifi-
cation year only by that part of the year remaining
when unfair labor practices interrupt prior good-
faith bargaining.3 In this case, Respondent fulfilled
its bargaining obligation under Section 8(d) of the
Act for approximately 8 months, from the Union's
certification on November 30, 1979, until August 4,
1980, when Respondent unlawfully failed to honor
or even respond to the Union's request for relevant
bargaining information. Accordingly, to place Re-
spondent and the Union in the bargaining posture
I Southside Electric Cooperative. Inc., 243 NLRB 390 (1979).
a Glomac Plastics. Inc., 234 NLRB 1309 (1978).
a Mammoth of California Inc., 253 NLRB 1168 (1981); Pride Refining
Inc., 224 NLRB 1333 (1976); Haymarket Bookbinders Inc., 183 NLRB
121 (1970).
262 NLRB No. 94
they would have been in but for Respondent's un-
lawful conduct, we direct that, upon the resump-
tion of bargaining in good faith and for 4 months
thereafter, Respondent must regard the Union as if
the initial year of certification has not yet expired. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Schnelli Enter-
prises, Inc. d/b/a Cellar Restaurant, Fullerton,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in said recom-
mended Order.
4This remedy does not, of course, mean that Respondent's duty to
bargain will automatically terminate upon expiration of the additional 4-
month period. See, e.g., Terrell Machine Company, 173 NLRB 1480
(1969), enfd. 427 F.2d 1088 (4th Cir. 1970).
DECISION
STATEMENT OF THE CASE
DAVID P. McDoNALD, Administrative Law Judge:
This case was heard before me at Los Angeles, Califor-
nia, on June 18, 1981, pursuant to a complaint issued by
the Regional Director for Region 21 of the National
Labor Relations Board on November 7, 1980, which was
based on a charge filed on September 24, 1980, by Hotel
& Restaurant Employees & Bartenders' Union of Long
Beach & Orange County, Local 681, AFL-CIO, char-
tered by Hotel and Restaurant Employees and Bartend-
ers International Union, herein called the Union.' The
complaint alleges that Schnelli Enterprises, Inc. d/b/a
Cellar Restaurant, herein called Respondent, engaged in
certain violations of Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act, as amended.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine the witness, to argue orally, and to file briefs. The
General Counsel chose to present a final oral argument
and not file a brief. Counsels for the the Charging Party
and the Respondent chose to file briefs and not give
closing arguments.
Upon the entire record, my observation of the witness,
and consideration of the oral argument and the submitted
briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent admitted it is a California corporation
engaged in the preparation and serving of meals at its
restaurant located at 305 North Harbor Boulevard, Ful-
lerton, California. In the normal course and conduct of
All dates herein refer to 1980 unless otherwise noted.
796
CELLAR RESTAURANT
its business operations, the Respondent annually derives
gross revenues in excess of $500,000 and annually pur-
chases and receives goods and products valued in excess
of S50,000 directly from suppliers located outside the
State of California. Accordingly, the Respondent admits
and I find that it is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material the Union has been a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are wheth-
er the Respondent violated Section 8(aX5) and (1) of the
Act by refusing the Union's request to furnish informa-
tion concerning the rates of pay of its cooks and bartend-
ers and their job classifications and, further, by engaging
in dilatory and evasive tactics and surface and bad-faith
bargaining by failing to attend a scheduled negotiation
meeting, failing to inform the Union why the Respond-
ent refused to sign an agreement, and conditioning its
offer to resume negotiations with the Union on a discus-
sion of the employees' petition not to be represented by
the Union. In its answer, the Respondent denied that it
violated the Act.
B. The Representation Proceeding
i. The unit
All parties agreed that the following employees of the
Respondent constitute a unit appropriate for collective-
bargaining purposes within the meaning of Section 9(b)
of the Act:
All waiters, waitresses, bus help, cooks, kitchen
help, bartenders, porters, dishwashers, doormen and
all other employees employed by the Employer at
its facility located at 305 North Harbor Boulevard,
Fullerton, California; excluding all office clerical
employees, professional employees, guards and su-
pervisors as defined in the Act.
2. The certification
On January 17, 1979, a majority of the employees of
the Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Direc-
tor for Region 21, designated the Union as their repre-
sentative for the purpose of collective bargaining with
the Respondent.
The Union was certified as the collective-bargaining
representative of the employees in said unit on Novem-
ber 30, 1979. The Union continues to be the exclusive
representative within the meaning of Section 9(a) of the
Act.
C. Facts
David L. Schultz was the sole witness who appeared
at this hearing. He has served as an officer of the Union
for 15 to 20 years. During the last 4 years he has been its
executive secretary-treasurer.
In anticipation that the Union would be certified,
Schultz sent a letter, dated October 10, 1979, to Timothy
F. Ryan, the Respondent's attorney, enclosing four
signed copies of a proposed collective-bargaining agree-
ment, in booklet form, titled "Wage Scale and Working
Agreement Contract A Effective March 1, 1979." In the
letter he suggested that, if the agreement met with the
Respondent's approval, it should sign each copy and
return two to Schultz. Three negotiating meetings fol-
lowed on December 28, 1979, and February 1 and 15,
1980. Each meeting was held in Ryan's office and was
attended by Ryan, Louis Schnelli (owner of the Re-
spondent's Restaurant), and Schultz, the Union's negoti-
ating representative. The meetings were described as
friendly and informal.
The first meeting, on December 28, 1979, lasted about
I hour. The negotiations were limited to reviewing the
Union's proposed contract that had been submitted by
mail on October 10, 1979. The meeting covered wages,
health benefits, pensions, the union-security clause, and
various other provisions of "Contract A." The Employer
did not like the security clause.
The second meeting, on February 1, also lasted about
I hour. Initially, Schultz testified that they discussed the
same subjects which were addressed during the Decem-
ber meeting. However, on cross-examination he admitted
that he handed Ryan a second union proposal. It was
also in booklet form and was titled "Wage Scale and
Working Agreement Contract Effective March 1, 1977."
He referred to this 1977 contract as "our standard agree-
ment throughout the area." Schultz testified that he
could not recall if he told Ryan that he was withdrawing
the previously mailed 1979 contract. He assumed that
both sides realized, when he handed the Respondent the
1977 contract, that automatically the 1970 contract was
withdrawn. In reference to the 1977 contract. Schultz
told them "that they should take a look at this one, this
contract; that this is the real world, and that they should
give me a proposal based on this contract, meaning the
second contract that I handed them." Earlier in his testi-
mony, before the 1977 contract was mentioned, he said,
"At this meeting [February 1, 19801, I asked the Employ-
er and his representative to give me a proposal based
upon their best efforts, and something that I could look
at so I would know where we were in the scheme of
things, and they said they would."
Subsequently, Ryan mailed the Respondent's proposal
for a collective-bargaining agreement to Schultz on Feb-
ruary 6.
The third and final meeting, on February 15, lasted
only 10 minutes. Schultz informed the Respondent that
he had reviewed its proposed collective-bargaining
agreement and he was very disappointed since he did not
feel it was a serious or realistic proposal. Schultz sug-
gested "that rather than me give them a counter-propos-
al, would they be kind enough to go back and rethink
797
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their proposal and give me one that was a little more re-
alistic." Ryan and Schnelli were described as friendly.
Schultz summarized, "They felt friendly about that, and
they thought maybe they could. And I left it at that.
They were going to give me another proposal at that
time." Later on cross-examination the witness was asked
whether "their response to that was they that would
look at their position again." Schultz answered, "Yes, it
was friendly, and that they could look at it again." Nei-
ther Ryan nor Schnelli made any statement during this
third meeting that would indicate they were withdraw-
ing the Respondent's proposal.
A week or two after the third meeting, Schultz tele-
phoned Ryan in an effort to determine the current status
of the Respondent's proposal. Ryan explained "that Mr.
Schnelli had had a change of heart, and that he was very
unhappy about something. .... That was it, that he
wasn't going to give me another offer, but that that was
it . . . that is the best he could do." Again there was no
mention of a withdrawal of the Respondent's proposal.
The conversation was concluded when Ryan answered
that he thought Schnelli knew the consequences of his
decision.
Ealier in March a meeting was scheduled for the unit
member employees of Cellar Restaurant for the purpose
of voting on the Respondent's proposed contract. None
of the bargaining unit employees attended the meeting.
On March 21, the executive board of the Union ap-
proved the Respondent's proposed collective-bargaining
agreement. On behalf of the Union and the Respondent's
employees, Schultz signed the contract. The parties stip-
ulated that the Union then hand delivered the said con-
tract to Schnelli at his restaurant on March 26. Schnelli
did not sign the contract at that time, since he wished to
first confer with his attorney.
Approximately a week to 10 days later, Schultz called
Ryan and asked for his copies of the contract. Ryan did
not know if his client had signed the contract. They dis-
cussed the fact that the contract was silent as to the
wages of the cook and bartender. In his testimony
Schultz stated that was not a problem since the Union
would accept the current wage rate that the Respondent
was paying as the contract's beginning wage rate. In his
affidavit Schultz claimed that he told Ryan they could
work out the wage rate. In either case, the atmosphere
between the parties remained friendly and Schultz was
confident they would resolve the wages.
Thereafter, a second telephone conversation occurred
between Ryan and Schultz approximately a week to 10
days later. Schultz testified. "I talked to Mr. Ryan after
that, and he said that he had talked to Mr. Schnelli, and
Mr. Schnelli had taken the position that that was no
longer an offer; that he had withdrawn that offer."
Schultz did not believe that during this conversation
Ryan mentioned that the contract was incomplete.
Richard J. Cantrell, attorney for the Union, then for-
warded the following letter, dated April 21, to Ryan:
Mr. Schultz advises us he returned the Collective
Bargaining agreement to the employer but has not
received the signed copy back as yet. Mr. Schultz
further advises that you have indicated the employ-
er is now refusing to execute the agreement.
Please advise as to the situation.
If we do not receive the executed agreement within
15 days, we will request authorization to file an
Unfair Labor Practice charge plus a breach of con-
tract action including a request for punitive dam-
ages.
When the Union did not receive a response to the April
21 letter, it filed an unfair labor practice charge on June
23, 1980, alleging in part: "The employer refuses to ex-
ecute or abide by the negotiated collective bargaining
agreement." On July 31, 1980, the Regional Director for
Region 21 informed Cantrell in a letter that he was refus-
ing to issue a complaint in this matter for the following
reasons:
The evidence is insufficient to establish that the
Employer violated the Act by refusing to execute
and abide by an alleged collective-bargaining agree-
ment. Rather, the evidence reveals that the contract
executed by the Union was incomplete since there
are two wage rates that have to be negotiated.
In correspondence dated July 24, 1980, Ryan informed
Cantrell that:
. . . it is the Employer's position that no final
agreement on a collective bargaining agreement be-
tween Schnelli Enterprise, Inc. and your client has
been reached.
We also inform you that the Employer is and has
been willing to continue its negotiations with the
Union.
Thereafter, on August 4, 1980, the Union withdrew its
charge "based upon the notification the company will
negotiate the last pending items." On the same day, by
letter, Cantrell informed Ryan of the following:
The only items left to negotiate are the pay scale
for cooks and bartenders. David Schultz of the
Union will be contacting you to negotiate these
items. Please obtain from the employer and advise
Mr. Schultz of the current pay for the cooks and
the bartenders.
Subsequently, by letter dated August 13, Ryan proposed
three alternate dates for the resumption of their collec-
tive-bargaining negotiations. He also enclosed a copy of
a petition, dated April 2, which was directed to Louis
Schnelli and signed by all of his employees. The petition
read:
We, the employees of the Cellar Restaurant, asked
you Mr. Schnelli, to help protect our interest in not
wanting to be represented by any union by not sign-
ing any contract or proposal that would put us in
the position, now or in the future, that we would
have to work under any union contract.
In reference to this petition, Ryan concluded his August
13 letter by stating, "Prior to our next negotiation ses-
798
CELLAR RESTAURANT
sion, we would appreciate a written statement of your
position of this petition."
On August 15, the Union's counsel, Richard Cantrell,
informed Ryan that August 26 was an agreeable date to
resume negotiating over the only remaining unresolved
questions; ramely, the salaries of the cook and bartender.
Again, the Union renewed its requests for data as to the
current wages paid to the cook and bartender. Cantrell
concluded his letter:
You also inquired about the Union's position on
some petition by employees.
Since I have not seen your letter I will not respond.
Since Mr. Schultz is represented by this office, we
would appreciate it if you would conform to the
ethics of the Bar Association and request opinions
on such matters through counsel.
We will see you on the 26th at 10:00 a.m.
Cantrell had not attended the three previous negotiat-
ing sessions. However, in keeping with his letter of
August 15, Cantrell arrived at Schultz' office at the
agreed hour. When neither Schnelli nor Ryan appeared,
Schultz made several telephone calls to Ryan's office to
no avail. In the days that followed, Schultz continued to
attempt to contact Ryan by phone, but was always told
that Ryan was in conference. Neither Ryan nor any
other representative of the Respondent ever returned his
calls.
On August 26, Ryan answered Cantrell's letter of
August 15. He pointed out that Cantrell's previous corre-
spondence had directed the Respondent to furnish the
wage data to Schultz and therefore the Respondent was
of the belief that they were to negotiate directly with
Schultz. Ryan further denied that he had requested an
"opinion." The purpose of his inquiry concerning the
employees' petition was "directed solely at determining
what effect if any, that petition should have on our ne-
gotiations. The issues raised by that petition are not in-
significant and neither the Employer nor the Union
would be well served by ignoring it." Ryan then ex-
pressed a desire to discuss the employee petition with
Schultz prior to the next negotiating session and request-
ed a written statement informing the Respondent as to
whether or not it should continue to deal directly with
Schultz or with Cantrell.
On September 24, the Union, through its counsel, filed
the present unfair labor practice charge alleging that the
Employer had engaged in bad-faith bargaining in viola-
tion of Section 8(a)(5) and (1) of the Act. By letter dated
October 27 to Ryan, the Union's counsel stated:
When I returned from vacation I found you had
called once on the above matter. I have returned
your telephone call in the morning of October 24.
I have been informed by the NLRB agent, you are
waiting authorization to enter into negotiations with
my client directly. You already have authorization
to negotiate the contract with Mr. Schultz. You
know that.
You still have not informed Mr. Schultz of the
rate's pay to cooks and bartenders. Please advise
Mr. Schultz and this office in writing as to those
rates at this time.
Apparently, there was no further communication be-
tween the parties. The Regional Director issued this
complaint on November 7.
On June 18, 1981, at the conclusion of the hearing, the
Respondent stipulated that neither the Respondent nor
its attorney had given the Union the requested informa-
tion concerning the wage rates and job classifications of
the cooks and bartenders at any time since the negotia-
tions began. At the hearing, in response to the General
Counsel's subpoena duces tecum, the Respondent's attor-
ney produced the papers, books, and records of the Re-
spondent showing the names, dates of hire, and rates of
pay of all of the Employer's cooks and bartenders who
were employed during the period from April I to and in-
cluding September 1, 1980.
D. Analysis and Conclusions
1. Credibility
Since David L. Schultz was the only individual who
testified, his recollection of events remained uncontra-
dicted by other testimony. However, a trier of fact need
not accept uncontradicted testimony as true if it contains
improbabilities or if there are reasonable grounds for
concluding that it is false. It is well settled that a witness'
testimony may be contradicted by circumstances as well
as by statements and that demeanor may be considered in
such circumstances. Operative Plasterers' & Cement
Masons' International Association, Local 394 (Burnham
Brothers, Inc.), 207 NLRB 147 (1973). After carefully re-
viewing the record and considering his demeanor I have
concluded Schultz made an effort to provide an accurate
and true account of the statements and events which
spawned the present case. Unfortunately, he either suf-
fered from an abundance of caution or a poor memory.
At times his responses were vague and replete with, "I
dont' recall." Such responses are often considered an in-
dication of a lack of credibility. I do not believe that this
is the case in the present matter. I find that Schultz made
an honest effort to report the facts as he recalled them.
Therefore, I generally credit his testimony. However, I
discredit Schultz' recollection in those areas where his
responses are vague and in conflict with the established
facts derived from submitted documents and the reason-
able inference drawn from the record.
2. Bad-faith bargaining
In general it is the position of the General Counsel and
counsel for the Charging Party that the Respondent en-
gaged in "bad-faith" bargaining and thus violated Section
8(a)(5) and (1) of the Act. The record traces the actions
of the parties from the date of the Union's certification
on November 30, 1979, to the date of the hearing on
June 18, 1981. During this period the Respondent is
charged with having committed a series of actions which
the General Counsel argues demonstrates that it in fact
799
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargained in bad faith. In reviewing this series of events,
it is likely that, considered individually, an event may
not be a violation of Section 8(aXS) and (1) of the Act.
Viewed separately, at least some of these actions may be
construed as acceptable hard bargaining by the Company
or as insufficient standing alone to support a finding of a
refusal to bargain. However, the courts have found that
the totality of the circumstances may justify a finding of
failure to bargain in good faith. Queen Mary Restaurants
Corp. and Q. M. Foods, Inc. v. N.L.R.B., 560 F.2d 403
(9th Cir. 1977). Accordingly, viewing the Respondent's
actions cumulatively, I find that the totality of the evi-
dence supports the charge that Schnelli Enterprises, Inc.,
did engage in bad-faith bargaining in violation of Section
8(aX5) and (1) of the Act. N.LR.B. v. Pacific Grinding
Wheel Co., Inc., 572 F.2d 1343 (9th Cir. 1978); J. P. Ste-
vens & Co., Inc. v. N.LR.B., 623 F.2d 322, 326 (4th Cir.
1980).
The collective-bargaining meetings were described as
friendly. Schultz had sumitted two proposed agreements
and then received the Respondent's proposal on Febru-
ary 1. It was during their third meeting on February 15
that Schultz informed Schnelli and his attorney that their
proposal was unrealistic and they should "rethink" it.
There was no indication that the Respondent intended to
withdraw the proposal and the Employer agreed to
"look at their position again." The Respondent's state-
ment was not an agreement that it would actually alter
its only proposal.
A week or two later when Schultz telephoned, Ryan
informed him that Schnelli was very unhappy and, "That
was it, that he wasn't going to give me another offer, but
that that was it . .. that is the best he could do." Again
there was no mention of withdrawal of the Respondent's
proposal. It should be noted that at this stage the Com-
pany's proposal was silent as to the wages of the cook
and bartender. Considered alone, the fact that the Re-
spondent did not elect to amend its proposal is not per se
bad-faith bargaining.
Thereafter, the Union accepted what it previously had
categorized as a not serious and a unrealistic proposal.
Schultz signed the Respondent's proposal on March 21
and it was hand delivered to Schnelli on March 26.
When Schnelli insisted on seeking the advice of his attor-
ney before signing his own proposal, the matter was
again delayed. A week or 10 days passed and Schultz
heard nothing until he called Ryan, who did not know if
his client had signed the agreement. They discussed the
fact that the agreement was silent as to wages. Schultz
was willing to accept the current wages. Since the at-
mosphere was very friendly, he was confident they could
agree on the wages. Again a week to 10 days passed and
Ryan did not call Schultz. Finally, after several attempts
Schultz reached Ryan, who allegedly informed him that
his client, Schnelli, had withdrawn the offer. I do not
credit this portion of Schultz' testimony. After reviewing
the documentation it appears unlikely either that Ryan
stated the offer was withdrawn or that in fact Schnelli
withdrew it. I reach this conclusion by examining Can-
trell's letter of April 21 to Ryan, wherein he states: "Mr.
Schultz further advises that you have indicated the em-
ployer is now refusing to execute the agreement." On
June 23, 1980, the Union, through its attorney, Cantrell,
filed an unfair-labor practice charge, alleging: "The em-
ployer refused to execute or abide by the negotiated col-
lective bargaining agreement." The Respondent's posi-
tion was outlined in Ryan's correspondence to Cantrell
dated July 24. No final agreement had been reached and
the Employer was willing to continue its negotiations
with the Union.
In his letter of August 4 to Ryan, Cantrell announced
that the Union was prepared to negotiate the only re-
maining items left to negotiate, the pay scale for the bar-
tender and the cook. To assist the Union in this area of
bargaining, he requested that the Employer furnish the
current pay for those two unit positions to Schultz, who
would contiue to handle the negotiations on behalf of the
Union. On several occasions thereafter, the Union re-
newed the request for the wage data. The Respondent
never refused to furnish the information; it simply ig-
nored the request. It was not until the day of the hear-
ing, June 18, 1981, that the Respondent admitted it had
not provided the requested material at any time since the
beginning of their negotiations. In response to the Gener-
al Counsel's subpoena duces tecum, the Respondent's at-
torney produced the papers, books, and records of the
Respondent showing the names, dates of hire, and rates
of pay of all of the Employer's cooks and bartenders
who were employed during the period from April 1 to
and including September 1, 1980. The information sought
by the Union dealing with wages and employee job clas-
sifications is presumptively relevant. The Respondent of-
fered nothing to rebut this presumption. Maywood Do-
Nut Co., Inc., 256 NLRB 507 (1981). Therefore, I con-
clude that the Respondent's failure to furnish the request-
ed information to the Union, the certified representative
of its employees, prior to the hearing constitutes a viola-
tion of Section 8(a)(5) and (1) of the Act. See also The
Bakery, Incorporated, 259 NLRB 766 (1981); Harvard
Folding Box Co., Inc., 259 NLRB 686 (1981).
In his letter to Schultz dated August 13, Ryan suggest-
ed three alternate dates for the resumption of their col-
lective-bargaining negotiations. In addition, he enclosed a
copy of a petition signed by all of the employees of the
Respondent, which in essence stated that they did not
want the Union as their representative. Ryan's letter
stated, "Prior to our next negotiation session, we would
appreciate a written statement of your position on this
petition." (Emphasis supplied.) The Union accepted the
date of August 26 for the next collective-bargaining ses-
sion, but did not provide the Respondent with the
Union's view on the employee petition. Neither Schnelli
nor Ryan appeared on the 26th. They did not call to
cancel the meeting or provide an explanation for their
absence. In reviewing the whole record there appears
only three logical reasons for their absence. Their ab-
sence was either a dilatory tactic, they in fact condilion-
ed their offer to resume negotiations on the discussion of
the employees' petition, or both.
No one testified on behalf of the Respondent, nor pro-
vided an explanation as to why Schnelli and Ryan did
not attend the meeting. However, the Respondent's brief
asserts that a very careful reading of the various letters
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CELLAR RESTAURANT
provides the explanation. When Ryan's letter first raised
the issue of the employees' petition, Cantrell informed
Ryan by letter, dated August 15, that his office repre-
sented the Union and therefore Ryan should conform to
the ethics of the Bar Association by directing all requests
for opinions through counsel. The Respondent argues
that this letter raised a doubt as to whether it could con-
tinue to deal directly with Schultz. I do not feel that this
argument has any merit. Cantrell's letter of the 15th is
not ambiguous. It clearly states, "Mr. Schultz is agreeable
to negotiating the final items on the contract on August
26" in Schultz' office. The last sentence of the letter
states, "We will see you on the 26th at 10:00 a.m." (Em-
phasis supplied.) Under the circumstances, "We" could
only refer to Schultz and Cantrell. Any concern Ryan
may have had should have been alleviated by the fact
that Cantrell would be present at the negotiating session.
If the Respondent's attorney was truly concerned, then
he could have called or written Cantrell for clarification.
There is no evidence to indicate that Ryan called Can-
trell. It is true Ryan wrote a letter to Cantrell requesting
"a written statement from you informing us as to wheth-
er or not we may continue to deal directly with Mr.
Schultz." The letter is dated August 26, the same day
Schnelli and Ryan failed to attend the resumed negotiat-
ing meeting. I find such a late inquiry to be a subterfuge,
an obvious dilatory tactic. It is also very interesting to
note that the same letter again raised the issue of the em-
ployees' petition:
Your letter of August 15, 1980 is also incorrect in
characterizing our inquiry regarding the Union's po-
sition on the employee petition as a request for an
"opinion." Our inquiry was directed solely at deter-
mining what effect, if any, that petition should have
on our negotiations. The issues raised by that peti-
tion are not insignificant and neither the Employer
nor the Union would be well served by ignoring it.
We would like to discuss the petition with Mr.
Schultz prior to the next negotiation session. [Em-
phasis supplied.]
It would appear that this letter again raises the need to
discuss the employees' petition as a condition to resump-
tion of collective bargaining.
The law is well established that a union enjoys an
almost conclusive presumption of majority support
during the year following certification. Thus, an employ-
er may not refuse to bargain during the 12-month period
even though the employer is confident that the union has
lost majority support. N.LR.B. v. Lee Office Equipment,
572 F.2d 704 (9th Cir. 1978), enfg. 226 NLRB 826
(1976); N.LR.B. v. Burns International Security Services,
Inc., 406 U.S. 272, 279, fn. 3 (1972). This presumption of
majority during the first 12 months is almost irrebuttable.
The Surpreme Court in Brooks v. N.LR.B., 348 U.S. 96,
98 (1954), recognized certain "unusual circumstances"
that may justify an employer's refusal to bargain even
during the certification year. However, the facts in the
present case do not fall within the "unusual circum-
stances" that have been recognized by either the Sur-
preme Court or the Board. In the present case the Union
may well have lost the majority support of the Respond-
ent's employees. The April 2, 1980, employee petition
was signed by all of the employees and clearly stated
that they did not want "to be represented by any union."
When the Union called a contract ratification meeting
none of the employees attended. In Lee Office Equip-
ment, supra, the Ninth Circuit held, "It appears that the
Union had in fact lost virtually all employee support at
the time of the refusals to bargain. But evidence that em-
ployees have abandoned their certified union, without
more, does not justify an employer's refusal to bargain
during the certification year. Brooks v. N.L.R.B., supra,
348 U.S. at 103."
I find that the Respondent's failure to attend the
August 26 collective-bargaining meeting, its failure to ex-
plain its absence, its various dilatory tactics, and its insis-
tence on discussing the employees' April 2 petition indi-
cate that the Respondent engaged in bad-faith bargaining
in violation of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, I recommend that it be or-
dered to cease and desist therefrom, and, upon request,
bargain collectively with the Union as the exclusive rep-
resentative of all the employees in the appropriate unit
and, if an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, I rec-
ommend that the initial year of certification begin on the
date the Respondent commences to bargain in good faith
with the Union as the recognized bargaining representa-
tive in the appropriate unit. See Mar-Jac Poultry Compa-
ny, Inc., 136 NLRB 785 (1962); Bell & Howell Company,
220 NLRB 881 (1975).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All waiters, waitresses, bus help, cooks, kitchen
help, bartenders, porters, dishwashers, doormen, and all
other employees employed by the Employer at its facili-
ty located at 305 North Harbor Boulevard, Fullerton,
California, excluding all office clerical employees, profes-
sional employees, guards and supervisors as defined in
801
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
4. Since November 30, 1979, the above-named labor
organization has been and now is the certified and exclu-
sive representative of all employees in the aforesaid ap-
proriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By failing and refusing the Union's request for cer-
tain necessary and relevant information from on or about
August 4, 1980, until the date of the hearing, June 18,
1981, the Respondent violated Section 8(a)(5) and (1) of
the Act.
6. By failing on and after August 26, 1980, to meet and
negotiate with the Union as the exclusive bargaining rep-
resentative of its employees, the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
7. By the aforesaid refusal to bargain, the Respondent
has interefered with, restrained, and coerced employees
in the exercise of the rights guaranteed them in Section 7
of the Act, and thereby has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 2
The Respondent, Schnelli Enterprises, Inc. d/b/a
Cellar Restaurant, Fullerton, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to meet, negotiate, and bargain
in good faith with Hotel & Restaurant Employees & Bar-
tenders' Union of Long Beach & Orange County, Local
681, AFL-CIO, chartered by Hotel and Restaurant Em-
ployees and Bartenders International Union, as the exclu-
sive bargaining representative of its employees in the fol-
lowing bargaining unit:
All waiters, waitresses, bus help, cooks, kitchen
help, bartenders, porters, dishwashers, doormen,
and all other employees employed by the Employer
at its facility located at 305 North Harbor Boule-
vard, Fullerton, California; excluding all office
clerical employees, professional employees, guards
and supervisors as defined in the Act.
(b) Failing and refusing to bargain in good faith with
the Union by not furnishing necessary and relevant re-
quested information concerning wages and job descrip-
tions.
a In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(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.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively and in good
faith with Hotel & Restaurant Employees & Bartenders'
Union of Long Beach & Orange County, Local 681,
AFL-CIO, chartered by Hotel and Restaurant Employ-
ees and Bartenders International Union, as the exclusive
representative of all the employees in the appropriate
unit; furnish said labor organization with the current
wage rates and job descriptions of the cooks and bar-
tenders; and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its Fullerton, California, facility copies of
the attached notice marked "Appendix."3 Copies of said
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours, and other terms
and conditions of employment with Hotel & Restau-
rant Employees & Bartenders' Union of Long
Beach & Orange County, Local 681, AFL-CIO,
chartered by Hotel and Restuarant Employees and
Bartenders International Union as the exclusive rep-
resentative of the employees in the bargaining unit
described below.
WE WILL NOT refuse to furnish the above-named
Union with necessary and relevant information it
has requested with respect to all unit employees of
Schnelli Enterprises, Inc. d/b/a Cellar Restaurant.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL, upon request, bargain with the above-
named Union, as the exclusive representative of all
802
CELLAR RESTAURANT
employees in the bargaining unit described below,
with respect to rates of pay, wages, hours, and
other terms and conditions of employment and, if
an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit
is:
All waiters, waitresses, bus help, cooks, kitchen
help, bartenders, porters, dishwashers, doormen,
and all other employees employed by the Em-
ployer at its facility located at 305 North Harbor
Boulevard, Fullerton, California, excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL, upon the above-named Union's re-
quest, furnish the current wage rates and job de-
scriptions of the cooks and bartenders.
SCHNELLI ENTERPRISES, INC. D/B/A
CELLAR RESTAURANT
803