Steak & Brew, Inc.

National Labor Relations Board - Board Decisions

Nov 18, 1975

221 N.L.R.B. 506 (N.L.R.B. 1975)

506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. B. Rest of Framingham , Inc. a wholly owned
subsidiary of Steak & Brew, Inc. and Stephen F.
O'Neill and Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO. Case
1-UD-93
November 18, 1975
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
On December 19, 1974, the Regional Director for
Region 1 issued his Decision and Direction of
Election in the above-entitled proceeding in which he
directed a union, deauthorization election among the
employees at the Employer's Framingham, Massa-
chusetts, restaurant location, contrary to the Em-
ployer's and Union's contention that the Framing-
ham location had become merged into a national
unit of all the Employer's restaurants covered by an
existing master agreement between the Employer
and the Union.
Thereafter, the Union, in accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, filed a timely
request for review of the Regional Director's decision
with a supporting brief, contending, inter alia, that
the Regional Director departed from officially
reported Board precedent and made erroneous
findings of fact in directing the deauthorization
election.
By telegraphic order dated February 19, 1975, the
National Labor Relations Board granted review and
stayed the election pending Decision on Review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
proceeding, including the Union's brief with respect
to the issues under review, and makes the following
findings:
The Employer is a New York corporation engaged
in the operation of a chain of approximately 53
restaurants, all of which do business under the name
of "Steak and Brew." At the date of the hearing, the
Union, through its various locals, represented ap-
proximately 1,600 of the Employer's employees
throughout its restaurant chain. The record discloses
that, in November 1973, the parties entered into
negotiations toward a master agreement to encom-
pass the then approximately 30 organized locations
covered by local contracts. These separate locations
were to become merged under the master agreement
and covered by its terms, with the exception of
221 NLRB No. 109
certain locations represented by locals specifically
spelled out in the recognition clause in the master
agreement. The "Master National Agreement" which
resulted from the negotiations was executed on
March 7, 1974, and is effective from March 1, 1974,
to March 1, 1979, and year to year thereafter, unless
terminated, changed, or added to as provided in the
agreement. The recognition clause in that agreement
states as follows:
The Employer recognizes the Union as the sole
and exclusive bargaining agent for all employees,
excluding managers, assistant managers, head
hostesses, assistant head hostesses, managerial
salaried employees, office and clerical employees,
and all professional, confidential, supervisory
employees, watchmen, and guards employed by
the Employer in all of the Employer's 'establish-
ments operated in the United States of America
and/or its Territories as to which the Union has
been certified by the National Labor Relations
Board as the collective bargaining agent, or as to
which the Union has presented to the Employer
signed authorization or membership applications
authorizing the Union to represent the majority of
the employees each, [sic] establishment. (Excluded
herefrom are all units covered by Locals 1, 6, 15,
89 of New York, New York and Local 568 of
Philadelphia, Pennsylvania).
The Union recognizes and agrees that the
obligation of the Local Union or Unions desig-
nated by it as bargaining agents will be limited to
the administration of this Agreement and that the
negotiations of any changes, additions or renew-
als hereof will be conducted by the Union.
The record discloses that as a result of the
execution of this agreement a uniform policy on
checkoff, union security, seniority, probationary
periods, discharge, grievances, strikes and lockouts,
health and welfare, and other matters provided for in
the agreement became applicable to the organized
locations of the Employer covered by the agreement.
Around the date of the execution of said master
agreement, card checks were conducted in approxi-
mately eight additional locations of the Employer
and those locations were similarly brought under the
terms of the master agreement and wage rates were
negotiated for those locations. On April 30, 1974, the
Employer and the Union, pursuant to the provision
in the recognition clause detailed above, entered into
a stipulation of agreement providing for a card check
recognition procedure to be utilized for the Framing-
ham, Massachusetts, employees including:
... the full time and regular part time captains,
cashiers, hostesses, waiters, waitresses, bartenders,
S. B. REST OF FRAMINGHAM, INC.
busboys, porters, counter personnel and all
kitchen employees employed by the Company at
167 Worcester Road, Framingham, Massachu-
setts 01701.. .
The stipulation of agreement provided for a named
agreed-upon person to conduct the card check;
provided that he, as arbitrator, decide any questions
of eligibility; and further provided that upon his
certification "that JOINT EXECUTIVE BOARD
[BOSTON] (Local 277) does represent a majority of
employees in the appropriate unit aforesaid, then S.
B. REST. OF FRAMINGHAM INC. d/b/a
STEAK & BREW agrees that the employees of said
unit will forthwith be covered by the Master National
Agreement dated March 7, 1974. " (Emphasis sup-
plied.)
The evidence reveals that an agreed-upon list of 63
employees at that location, as of the week ended
April 12, 1974, constituted the bargaining unit
specified in the stipulation. It further reveals that the
selected "arbitrator" issued a "Report and Certifica-
tion of Card Check and Count," dated May 1, 1974,
to the Employer and the above-named Joint Board in
which he confirmed, inter alia, that the Union had
presented 46 cards designating it as collective-bar-
gaining agent and that comparison of those signed
cards with the employees' signatures presented by the
Employer established that 44 cards contained
"genuine" signatures of employees on the April 12
payroll list, and that the remaining 2 cards were of
former employees. The arbitrator's report then
recited:
JOINT EXECUTIVE BOARD BOSTON
(LOCAL 277) represents a clear majority, of all
the full time and regular part time captains,
cashiers, hostesses, waiters, waitresses, bartenders,
busboys, porters, counter personnel and all
kitchen employees of S. B. REST. OF FRAM-
INGHAM INC., d/b/a STEAK & BREW
referred to in the stipulation of the parties dated
April 30, 1974 and who properly constitute the
collective bargaining unit agreed upon by the
parties.
Employer's Vice President Cohen testified that, as
soon as the arbitrator determined that the Framing-
ham location became a recognized unit, "it then
became merged and it became part of the Interna-
tional" and the terms of the master agreement came
into effect for those employees, the wage rates being
left open for negotiation with the International
Union. Subsequently, wage rates for the Framing-
1 Young and Hay Transportation Company, 214 NLRB No 39 (1974),
Eltra Corporation, Prestolite Division, 205 NLRB 1035 (1973)
2 Retail Clerks Union, Local 870, Retail Clerks International Association,
507
ham location were negotiated ' by the parties and
became effective July 1, 1974.
On October 22, 1974, the instant petition was filed
seeking a deauthorization election among the Fram-
ingham employees to determine whether they wish to
be bound by the so-called union-shop provisions of
the master agreement. As indicated, after a hearing
on the issues herein, the Regional Director directed
such an election notwithstanding the Employer's and
Union's contentions that the bargaining unit was as
described in the master agreement and that- the
Framingham location had become merged into said
"national unit." The Regional Director concluded, in
part, "that while the Framingham restaurant may
come under the master agreement, it did so as a
separate unit and not as part of the so-called
National Unit." Such conclusion was predicated
largely upon the arbitrator's finding that the Union'
was afforded recognition in the Framingham unit of
employees as a result of the card check. We disagree
with the conclusion of the Regional Director and
find that the Framingham location, as a result of the
Union's demonstrated majority status, and in accord
with the provisions of the master agreement, became
part of the broad national unit.
The recognition clause clearly describes the unit as
including the employees in "all of the Employer's
establishments . . . as to which the Union has been
certified . . . or as to which the Union has presented
to the Employer signed authorization or membership
applications authorizing the Union to represent the
majority of the employees each [sic] establishment
.... This latter condition for recognition is, in
essence, an "after acquired" or "additional store"
clause. The Board has held that such clauses are
valid and will be given effect where they are
unambiguous in nature' and where the Board is
satisfied that the employees affected are not denied
their right to have a say in the selection of their
bargaining representative.2
In the instant case, the language of the recognition
clause is free from ambiguity and there is no basis for
concern regarding the rights of the employees
involved inasmuch as the Framingham employees
have had an opportunity to express their preference
for a collective-bargaining representative and did so
when a clear majority of them designated the Union
as their representative by executing authorization
cards prior to the card check. We find no barrier here
to giving full effect to the contractual commitment of
the parties providing for union recognition at
locations not previously under the collective-bargain-
ing agreement. Nor have we found that enforcing
AFL-CIO (White Front Stores Inc.), 192 NLRB 240, 242 (1971) Compare
Melbet Jewelry Co, Inc, and I D.S -Orchard Park, Inc, 180 NLRB 107,
109 (1969) ;Food Fair Stores, Inc, 204 NLRB 75 (1973).
508 DECISIONS OF NATIONAL
such clauses in these circumstances contravenes
consideration of national labor policy.3
In view of the foregoing, we find that the
employees at Framingham have not been deprived of
their Section 7 rights through the use of the card-
check-procedure herein and, as the Union had a clear
majority among those employees, that location has
become covered under the broad unit description of
the Master National Agreement. Accordingly, the
3 Houston Division of the Kroger Co, 219 NLRB No. 43 (1975).
4 Member Penello joins his colleagues herein because the recognition
clause specifically provides that the majority status of the Union be
determined through the card -check procedure which , in his view, is an
acceptable and legally permissible alternative to the Board 's election
LABOR RELATIONS BOARD
petition seeking a deauthorization election limited to
the employees at the Framingham location is framed
in an inappropriate unit., We shall, therefore, dismiss
the petition.4
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
processes. This comports with his dissenting opinion in Kroger, supra
Chairman Murphy and Member Jenkins, as in their majority opinion in
Kroger, would not require an explicit, condition requiring proof of majority
status inasmuch as the Board will impose such a condition as a matter of
law