Antonino's Restaurant

National Labor Relations Board - Board Decisions

Dec 6, 1979

246 N.L.R.B. 833 (N.L.R.B. 1979)

ANTO()NIN()'S RESTAURANT
Anthony Carilli, d/b/a Antonino's Restaurant and
Hotel, Motel, Restaurant Employees and Bartend-
ers Union, Local 50, affiliated with Hotel and Res-
taurant Employees and Bartenders International
Union. Cases 32-CA 1180 and 32 CA 1502
December 6. 1979
BY ChAIRMAN FANNING AND) MtlNII RS JNKINS
AND PNI:I )
On July 18, 1979. Administrative l.aw Judge Jer-
rold 11. Shapiro issued the attached [)ecision in this
proceeding. Thereafter, Respondent tiled exceptions,
a supporting brief, and a motion to reopen the record.
Counsel for the General Counsel filed a brief in sup-
port of the Administrative Law Judge's Decision and
an opposition to Respondent's motion to reopen the
record.
Pursuant to the provisions of Section 3(h) 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,' briefs, and
motion2 and has decided to affirm the rulings, find-
ings, and conclusions3 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
Respondent has excepted to certain credibilits findings made h, the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dn 'Wall Products, In,, 91 NLRB 544
(1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 Respondent filed a motion to reopen the record. Counsel for the General
Counsel and the Charging Party filed motions in opposition Respondent's
motion to reopen the record seeks to introduce evidence of events occurring
subsequent to the hearing of this matter which are not relevant to the issues
herein litigated. Respondent's motion is hereby denied.
3 Member Penello adheres to the principle that "where a real question
concerning representation has been raised by the timely filing of a decertifi-
cation petition" an employer is legally justified in not going "so far as to
bargain collectively with incumbent ... union until the question concerning
representation has been settled by the Board." Telautograph Corporation. 199
NLRB 892 (1972). However, in the circumstances of this case. Member
Penello agrees with the Administrative Law Judge that Respondent cannot
rely on the filing of the decertification petition in Case 32 RD 116 as a
defense to its refusal to meet and bargain with the Union from November 20.
1978, until January 19. 1979. For, as the Administrative Law Judge stated in
sec. VI. 2(c). par. 4. of his Decision. "commencing on August 15, 1978,
immediately after Respondent learned his emplsees were circulating a
decertification showing of interest petition, Respondent committed numer-
ous and serious unfair labor practices which tended to undermine the
Union's representative status and precluded the holding ofa fair decertifica-
tion election in Case 32 RI) 116." Accordingly. Member Penello adopts the
Administrative l.aw Judge's finding that Respondent violated Sec. 8(a)(5) by
refusing to meet with the Union to negotiate a new contract See the separate
opinion of Member Penello and former Member Walther In Immeri Indui-
tries, a division of Corrpsonero/, In( a wuhsidiar f 1-7i-F lperial Corpora-
rion, 229 NLRB 895. 896 (1977)
tions Board adopts as its Order the recommended Or-
der of the Administrative L.aw Judge and hereby or-
ders that the Respondent, Anthony ('arilli. d/b/a
Antonino's Restaurant. Hayward. Caliornia. his
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DI)CISION
SIAIIM IN1()1 I II (ANSI
.11 RRt() 1) I. S1AI'IRi) Administratie l.as Judge: A con-
solidated hearinp was held May 14 and 15. 1979. hased on
unfair labor practice charges' filed b the abhoe-captioned
labor organization, herein called the ULnion and upon a
consolidated complaint' issued by the General ('ounsel of
the National Lahor Relations Board, herein called the
Board, alleging that Anthony Carilli. doing business as
Antonino's Restaurant. herein called Respondent. was en-
gaging in unfir labor practices within the meaning ol Sec-
tion 8(a)(1 ) and (5) of the National Labor Relations Act. as
amended, herein called the Act. Respondent. in its answer
to the consolidated complaint, denied the commission of
the alleged unfair labor practices.4
Ulpon the entire record, from my observation of the de-
meanor of' the witnesses, and having considered the post-
hearing briefs. I make the follosing:'
FININ(os (o) I A( I
I. I AI.I[(lGI) UN-AIR I tt()R PRA( It IS
A. 71it (UIlinicte Questlion.s Prcscented
The ultimate questions presented for decision are
whether Respondent violated Section 8(a)(I) and (a)(5) of
the Act: Section 8(a) 1) by questioning employees about
their union sympathies: soliciting employees to withdraw or
resign from the Union; encouraging or assisting employees
with the filing of a petition to decertify the Union as the
employees' collective-bargaining representative; notifying
employees that union membership was futile because Re-
The charge in Case 32 CA 1180 was filed August 28. 1978, and the one
in Case 32 CA 1502 was filed January 15, 1979.
2 The consolidated complaint issued February 28. 1979, and was amended
at the hearing.
As amended at the hearing.
'Respondent admits it is an employer engaged in commerce within the
meaning of Sec. 2(6) and (7) of the Act and meets the Board's applicable
discretionary jurisdictional standard. t.ikewise. Respondent admits that the
Union is a labor organization within the meaning of Sec. 2)5) of the Act.
I reject Respondent's contention that the consolidated complaint should
be dismissed in whole or in part because the charges fail to contain a "clear
and concise statement of the facts constituting the alleged unfair labor prac-
tices" as required bh Sec 102 12(d) of the Board's Rules and Regulations.
Each charge alleges that Respondent violated Sec. 8(aX 1) and (5) of the Act
and specifically allege that dunng the 6 months immediately prior to the
filing of the charge Respondent refused to bargain in good faith with the
ulnon. Each charge contains the anguage "(h)y the above and other acts"
Respondent interfered with. restrained. and coerced employees in the exer-
cise of their rights under Sec. 7 of the Act. It is settled that these general
allegations are sulfficient to support the more particular allegations of inter-
lerence. restraint, and coercion contained in the consolidated complaint as
well as the allegations pertaining to Respondenl's refusal to bargain. Pet
Incorporated, Dnrio Group, 229 NI.RB 1241, 1241 42 (19771
246 NLRB No. 136
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent had decided to operate without a union: and in-
forming them that Respondent had instituted a new dental
and medical program for the employees to discourage them
from supporting the Union; Section 8(a)(5) and (I) by with-
drawing recognition from the Union and refusing to meet
and bargain with the Union as the employees' exclusive
collective-bargaining representative and. without affording
the Union an opportunity to bargain, unilaterally discon-
tinuing the employees' retirement and medical and dental
insurance benefits and instituting new medical and dental
insurance benefits.
B. A Chronolog
Respondent, Anthony Carilli, operates Antonino's Res-
taurant as a sole proprietorship. He manages the restaurant
with the assistance of his wife. Jean Carilli, and his sons.
Larry and Tom Carilli. The record does not reveal Jean
Carilli's duties. I.arry Carilli is the assistant manager and
Tom Carilli is the head chef: All of the Carillis are admit-
tedly supervisors within the meaning of Section 2(1 1) of the
Act.
In 1972, when Respondent began operating the restau-
rant, he recognized the Union as the exclusive collective-
bargaining representative of all the restaurant's employees
"engaged in or in connection with the preparation, han-
dling, and serving of food and/or beverages" and agreed to
abide by the Union's collective-bargaining agreement with
the East Bay Restaurant Association. herein called the As-
sociation. Either at that time or shortly thereafter Respon-
dent authorized the Association to represent him in collec-
tive bargaining with the Union and became a part of a
multiemployer bargaining unit covered by the collective-
bargaining agreement entered into by and between the As-
sociation and the Union. The agreement in effect during the
time material herein, which Respondent was obligated to
abide by, was the 1973 78 agreeement which by its terms
was scheduled to terminate August 6, 1978. if timely notice
of termination was given by one of the parties, but could be
reopened prior to the termination date on August 6, 1977,
for the negotiation of wages only. The 1973-78 agreement
included provisions for employer contributions into sepa-
rate health and welfare and pension trust funds which pro-
vided medical, dental, and retirement benefits for the em-
ployees covered by the agreement. The agreement provided
for separate health and welfare and pension trust funds and
trust agreements to which Respondent agreed to be bound.
During the term of the 1973 78 agreement Respondent in
fact contributed into the respective trust funds on behalf of
his employees.
On May 27, 1977. Respondent notified the Association.
by letter, that if the Association's contract with the Union
were reopened for wage negotiations in August 1977. the
Association's authority to bargain on behalf of Respondent
"is limited in all respects to the expiration of the current
Agreement on August 6, 1978, and that no changes or ex-
tensions to the Agreement are to be negotiated on behalf of
[Respondent] which extend beyond that date." A copy of
this letter was mailed to the Union.
On June 27, 1977, the Association in writing notified the
Union, among other things, that Respondent had restricted
the Association's "power of attorney" to that of negotiating
wages and other conditions covered by the contract "to the
period up to but not beyond August 6, 1978." Thereafter, in
1977. representatives of the Association and the Union met
and engaged in collective-bargaining negotiations which re-
sulted in the premature extension of the 1973 78 agreement
scheduled to terminate August 6, 1978. with various modifi-
cations on wages and benefits. for another 4 ears.
On June I, 1978. Respondent wrote the Union that effec-
tive August 6. 1978, he had elected to terminate the collec-
tive-bargaining agreement currently in effect between the
Union and Respondent. Enclosed were Respondent's May
27. 1977. letter to the Association and the Association's
June 27, 1977, letter to the Union.
On June 6. 1978, Harry Young, Jr., the Union's pres-
ident, wrote Respondent acknowledging receipt of his June
I letter. Young stated Respondent's June I letter was "un-
timely and unacceptable" because "Section 47. Terms of
Agreement, of the current collective-bargaining agreement
specifically calls fir an opener on August 7. 1981 and expi-
ration on August 6. 1982. " 6
On approximately June 8 or 9. 1978. upon receipt of
Young's letter, Respondent phoned the Union and spoke to
its principal officer, Secretary-Treasurer Steve Martin. Re-
spondent told Martin he had received Young's letter of
June 1, 1978. and asked what the letter was "all about."
Martin replied in substance that the letter was self-explana-
tory. When Respondent answered that he did not under-
stand it. Martin offered to meet with Respondent and ex-
plain the letter. Respondent rejected the oHer and this
ended the conversation.'
In April. May. and June 1978, Respondent and his son,
Larry Carilli. contacted several insurance brokers and in-
surance companies concerning a medical and dental insur-
ance program for the employees to replace the existing pro-
gram when Respondent's contract with the Union
terminated August 6, 1978. John Madden was one of these
brokers. In June 1978 Madden contacted several insurance
companies, one of which was Crown Life Insurance Com-
pany, and asked them to submit proposals for a medical
and dental insurance program for Respondent's employees.
On July 25, 1978. Madden met with Respondent and Larry,
at which time Respondent authorized Madden to purchase
on his behalf the medical and dental insurance program
underwritten by Crown Life Insurance Company effective
August 6, 1978.8 Respondent also arranged for Madden to
meet with his employees and explain the new insurance
coverage.
On the morning of August 15, 1978, Madden met with
approximately 15 to 20 employees at the restaurant. Also
present on behalf of management was Larry, who intro-
'Sec. 47 of the collective-bargaining agreement negotiated between the
Union and the Association to succeed the 1973 agreement provides that "all
terms and conditions of this agreement . . . shall remain in full force and
effect until . .August 6, 1982, subject to reopening August 7. 1981, for
wages and one fringe benefit."
7 Respondent and Martin testified about this conversation. I have credited
Martin's version inasmuch as he impressed me as the more credible witness.
I The date of this meeting is based on Madden's testimony, Respondent
testified that the meeting occurred August I . 1978. I have rejected his test-
mony inasmuch as Madden, who was a disinterested witness, was a more
credible witness. Also, Larr) Carilli was not called upon to corroborate his
father's testimony.
834
ANTONIN('S RSIAt RAN I
duced lMadden to the emplo ees. Madodden handed the em-
ployees a document he had prepared which compared the
insurance benefits the would recei e under the medical
and dental insurance program under, ritten hb (row n I.ile
Insurance Cornpan us ith the benefits pro ided h thile
medical and dental insurance program included in the re-
cently terminated 1973 78 agreement. Madden inlformed
the employees that effecti'e August 6. 1978. the, were co,-
ered by the Crown Life Insurance Plan and told thel tlhat
the benefits provided by thil plan were better than under
the previous plan. Larry acknowledged that this was true.
The document prepared bh Madden which was distributed
to the employees clearl illustrated tha;t the nesw insuralce
program provided substantiall better henefits than the old
one. Madden asked the emplo ees to fill out enrollmlent
cards for the new plan and answered their questions.
On August 6. 1978. Respondent ceased making contribu-
tions into the health and selfare and pension trust iinds
referred to in the 1973 78 agreement and o August 15.
1978, instituted a new medical antl dental insurance pro-
gram retroactive to August 6 1978. for its employees. un-
derwritten by Crown l.ife Insurance Company which pro-
vided better benefits than the insurance plan it had
replaced.
On August I 1. 1978. employee l)ana Washburn solicited
other restaurant employees to sign a petition, prepared by
Washburn. which stated: "We the undersigned employees
of Antonino's Restaurant... wish no longer to be afiliated
with the Union. We understand that this petition must con-
stitute at least a third of the employees in order to have a
fair election of choice." It is undisputed that by the end of
August 12. 1978. 14 rank-and-file employees, including
Washburn, had signed this petition. It is also undisputed
that on August 12. after the 14 employees had signed the
petition. Washburn successfully solicited Larry and Tom
Carilli to sign the petition. They were the last two persons
to sign the petition. On August 17. 1978. Washburn took
this petition, referred to herein as the decertification show-
ing of interest petition, to the Board's Regional Office
where he filed a decertification petition in Case 32 RD- 116
alleging that the Union was no longer the representative of
30 percent or more of the employees employed at the res-
taurant, and asked the Board to conduct an election to
decertify the Union as the employees' collective-bargaining
representative.
During the third or the fourth week of August 1978 the
Union's business agent. Mike Bronco, who for the past sev-
eral years had administered the contract covering Respon-
dent's employees, met with Respondent at the restaurant.
Bronco told Respondent that. rather than going to the ex-
pense of employing attorneys, that he was there to see
whether Respondent would consider meeting with Union
Representatives Martin and Young. Respondent answered
that he would think about it. Bronco did not indicate to
Respondent the purpose of the proposed meeting.
On August 28. 1978. the Union filed its charge in Case
32 CA 1 180 alleging that Respondent, among other things.
was refusing to bargain in good faith with the Union. It is
plain from the testimony of Union Representatives Martin
and Bronco and the Board's Octohber 30. 1978. letter to the
Union dismissing a portion of this charge, iria. that in
support of this charge the I nion took the position that Re-
spondent as bound by the current collective-hargaining
agreementt negotiated between the [inion and the Associ-
ation ekclie through August 6. 1982.
O() October 30. 1978. the Board's Regional Director or
Region 32 informed Respondent and the L nion that he was
refusing to issue complaint on any aspect lof the charge in
C(ase 32 (CA 1180]. except the allegations concerning the
uililateral implementation of a new health insurance plan in
August 1978." The Regional Director specifically informed
the parties that the Union's allegation that Respondent was
bound bh the terms of the 1977 82 agreement was without
merit inasmnuch as the Regional l)irector concluded that
Respondent had subnmitted a timel' notification limiting the
\ssocial ioln ' barga ining uthority on Respondent's behalf
to the period ending August 6. 1978.
On November 2. 1978. the Regional I)irector in Case 32
R[) 1 16 informed tile parties involved in that proceeding
that. in;asmuch as a complaint had issued against Respon-
dent in (ase 32 CA 1180 alleging a violation of Section
8Xa )(5) which involved the same bargaining unit of emplo-
ees as as in olved in the decertification proceeding no
questioln concerning representation could be raised; thus
the Regional Director dismissed Washburn's decertification
On November 6,. 1978, Respondent's attornes. Stephen
MlcKace, wrote the !nion stating in substance that the rea-
sOIn Respondent had unilaterally instituted a ne health
insura;nce program for the restaurant's employees was that
Respondent thought it would be futile to notis the Union
since the Ulnion suas taking the position that Respondent
was bhound to abide b the terms of the 1977 82 agreement.
.And on the question of the U!nion's current status as the
emplosees' collective-hbargaining representative. McKae
w rote:
Respondent seriously believes. and has for some
months. that ou no longer have support of the major-
ity of the employees. Consequently. we do not see how
Antonino's can enter negotiations with you on a new
contract until an election can be held as requested by
the employees of the restaurant. Nevertheless since you
apparently complained to the Board that Antonino's
refused to bargain concerning the present health plan.
we are entitled to a clarification of your position. Do
you presently desire to open bargaining with
Antonino's concerning institution of the new health in-
surance plan, or do you continue to maintain that no
change or modifications will be made in wages, fringe
benefits or other conditions of employment until Au-
gust 7. 1981 per your June 6 letter. Unless we have
your response to the contrary by Monday. November
13. 1978, we will assume that Antonino's correctly in-
terpreted our June 6 letter.
On November 20. 1978. the Union's attorney. William
Sokol. wrote McKae the following letter:
In conjunction with the decision of the Regional Di-
rector of the National Labor Relations Board Region
32 in cases numbers 32 CA 1180 and 32 RD 116 this
is a reminder of the obvious, that iHotel, Motel & Res-
taurant mployees and Bartenders Union. Local 50.
X835
DI('ISIO()NS 1OF NA'I IONAI. I.ABOR REL.A'I IONS B()\ARDI)
represents the employees at Antonino's Restaurant
and that you have a legal obligation to meet and hbar-
gain in good lith concerning the wages, hours and
other conditiolns and terms of employment of said em-
ployees ais well as any proposed changes in said walges.
hours, and other conditions and terms oft'employ ment.
This is to further confirm that representatives oft the
Union are ready and willing, as always. to meet and
bargain in good faith concerning all these matters, par-
ticularly in view of the decision of the Board in 32
CA 1180. Please make arrangements with Steve Mar-
tin, the Secretary-Treasurer of' local 50() to meet and
bargain it a mutually agreceale time concerning the
ahove-reference matters.
McKac did riot answer this letter.
()n January 10, 1979, Sokol phoned McKae and, anong
other things. asked if they could sit down aidl negotiale
new collective-hargaining agreement covering Respondent's
employees. McKae stated he had received ai phone call the
previous day from a Board agent advising hint that the
Regional Director's earlier decision to dismiss the decertifi-
cation petition iled by employee Washburn in ('ase 32
RI) 116 was to be rescinded. In view of this. MeKae told
Sokol that he felt it was at waste of tilme to sit down with the
U nion and negotiate the terms of a new contract its such a
contract would not be bar to an election. McKae stated
that this was his point of view and he was not disposed to
negotiate an agreement with the U nion at that time.4
On January 10. 1979, the Regional l)irector by letter.
notified the parties involved in Case 32 RD 1 16 that his
dismissal of the petition in that case was rescinded and that
the petition was reinstated and would he held in aheyance
pending disposition of the unfair labor practice issues in-
volved in Case 32 CA 180.
On January 15, 1979, the Union tiled its unfair labor
practice charge in Case 32-CA 1502.
On January 15, 1979. the Union also wrote Respondent
that "the Union] again makes demand for negotiations
and asked for a reply within 5 days. By letter dated January
19. 1979, McKae on behalf of Respondent answered as fol-
lows:
Responding to your letter dated January 15, 1979.
you should be aware that Antonino's seriously doubts
that [the Union] continues to represent a majority oft'
the restaurant's employees in the current bargaining
unit.
We are certainly willing to meet and bargain in good
faith concerning wages and other conditions of em-
ployment. However, keeping in mind that according to
the NLRB's decision in Deluxe Metal Furniture (Com-
parnv 121 NLRB 995 (1958). an election is not barred
by a contract signed after the previous contract has
terminated and an election petition has been filed, you
may wish to postpone negotiations until a final deter-
mination is made in the pending election case.
We recommend that befiore a meeting date is sched-
uled, opening proposals by both parties be exchanged
' McKae and Sokol testified about this conversation l heir tcstimiony dos
not conflict. Accordingly. the ahove description is based on o conmposite ao
their testimony.
hby mail on a date acceptable to all. A meeting can then
he scheduled after both sides have had an opportunity
to re icew the proposals.
O()n March 9, 1979. the Union submitted its contract pro-
posals to Respondent which on April 12, 1979. submitted
its counterproposals, and the parties thereafter met on two
separate occasions in Mav 1979 to negotiate the terms of a
new collective-bargaining agreement with no success.
()n March 15, 1979. the Regional I)irector in Case 32
R1) 116 notified the parties to that proceeding that on in-
vestigation ofl the facts surroundling the filing of the petition
he had concluded "() that the initial petition was tainted
hy the participation of the lmrployer's supervisors in its
signing and cannot serve as a hasis lir the filing of an RI)
petition and (b) that in light of the numerous and serious
unflair labor practices allegedly committed hby the E:mployer
just prior to the iling of the petition, no quLestion concern-
ing representation can be raised at this time" and for these
reasons directed that the petition be dismissed. Respondent
tiled with the Board a request for review of the Regional
[)irector's decision. On April 19, 1979. the Board affirmed
the Regional D)irector's ruling. but noted that the deccertiti-
cation petition "is subject to reinstatement i appropriate.
upon disposition o (Caitses Nos. 32 ('A 1180X and 1(502."
('. ('lonc lusiotnan tlndingRs
I. The alleged 8(a)( I ) violations
A. The consolidated complaint alleges that Respondent.
through Jean and Larry (arilli, interrogated employees
about their union sympathies. The evidence oered by the
General Counsel in support of this allegation, which is set
out below, was uncontradicted.
D)uring June or July 1978 employee Karen Bywater, a
member of the Union. and Jean ('arilli Respondent's wife,
talked about medical insurance while eating lunch in the
restaurant. uring at least one of these discussions Jean
asked Bywater how important the employees' medical in-
surance program was for Bywater. Bywater replied that it
was very important, that it was the main reason she was
working and one of the main reasons for her membership in
the Union. Jean asked if Bywater would be a union mem-
ber if she worked in a restaurant which offered its employ-
ees medical and dental insurance benefits. Likewise, in June
1978 Larry, during a casual conversation with Bywater,
asked whether Bywater would need to be "in the Union" if
Respondent had a better medical and dental insurance pro-
gram for the employees.
l0 Jean and Larry arilh, as previously noted, are admittedly statutory
supervisors. I recognize that Larry ('arilli was a member of the bargaining
unit covered by he contract between the nion and Respondent and that
under certain circumstances inclusion of a supervisor in a contractual bar-
ga:ning unit would cause the employees to regard the supervisor as not
speaking on bchall (f management Here it is plain that. in view of the high
managerial position occupied hy l.arry ('arilli and his special status as Re-
spondent's son. Respondent's employees at all imes believed hat he was
acting for and on behalf of management. Indeed. as I have found injria it
w.ls l.alrry who represented Respoindent at the employee meeting of August
15 197X. where the enlployees were notified by the employer for the first
time that he restaurant's contract with the tinion had terminated and that
Respondent intended Io operale the restaurant withou union representation
and had instituted a new medical and dental insurance program.
836
ANION I NO'S
The foregoing instances of interrogation of Bywater bh
Jean and Larry Carilli violate Section 8(a)(1) of the Act
because they were not engaged in for any permissible rea-
son and were unaccompanied by assurances against repri-
sals and called for an answer which encompassed Bywater's
union sentiments. Moreover, the language used by the Ca-
rillis was reasonably calculated to give Bywater the impres-
sion that Respondent was considering instituting its own
medical insurance program, which would be a better pro-
gram than the Union's, if the employees indicated the)
would not support the Union.''
B. The complaint alleges in substance that Respondent.
through Larry Carilli, at the August 15. 1978. meeting of
the employees, informed them that Respondent had de-
cided to operate the restaurant nonunion, thus implying it
would be futile for the employees to support the Union, and
informed the employees that Respondent had instituted a
new medical and dental insurance program in order to dis-
courage the employees from supporting the Union. An ex-
amination of the evidence pertinent to this allegation fol-
lows.
On August 15, 1978, as described supra, Larry Carilli, at
the instruction of Respondent, held a meeting of the restau-
rant's employees, at which time he informed the employees
that Respondent had replaced the Union's medical and
dental insurance program with a new and better medical
and dental insurance program for the employees. In addi-
tion, at the commencement of the meeting, before he intro-
duced insurance broker Madden. Larry Carilli announced
to the employees that the restaurant no longer had a con-
tract with the Union since it had terminated. He also told
the employees that the restaurant was nonunion and, if they
desired, the employees could leave Respondent to work in a
union restaurant, but he wanted all of the employees to
continue working for Respondent; and he stated that he
had an insurance policy to show the employees so that they
would have medical and dental insurance. at which point
he introduced Madden, who told the employees about the
new medical and dental insurance program.'" In addition.
either at the start of the meeting or later during the meeting.
it is undisputed that Larry told the employees that, even
though Respondent was now operating nonunion, the em-
ployees' terms and conditions of employment would not
change except for the employees' insurance benefits.
In my opinion, the only reasonable construction that the
" In this regard I note that employee Virginia Potter credibly testified that
on approximately June 1, 1978, Larry told her that Respondent wanted to
"drop the Union" and was trying to get a better insurance policy for the
enmployees. Larry testified that he did not make these remarks I have cred-
ited Potter inasmuch as she impressed me as the more credible witness con-
cerning this conversation.
12 The description of Larry's remarks is based on the testimony of emplo)-
ees Bywater and Ingles. I recognize that the testimony of employee Potter
did not corroborate their testimony: however, Ingles and Bwater both im-
pressed me as reliable and credible witnesses. particularly Ingles who. when
she testified, was working for Respondent under Larry's immediate supervi-
sion. Larry testified he told the employees that Respondent's contract with
the Union had terminated, but did not specifically) deny also stating that the
restaurant was nonunion. In this regard. insurance broker Madden testified
that Larry told the employees, in response to an employee's questioln. that
the restaurant was nonunion Finally, it is extremely probable that, besides
telling the employees that the restaurant no longer had a contract with the
Union, Larry told them that Respondent intended to operate nonunion nas-
much as Respondent, as discussed infra. admittedly had decided to sever his
relationship with the Union effective August 6, 1978, and operate nonunion
RES IAlRAN I 837
employees could place on Larrs's statement that the restau-
rant was nonunion and that the employees could leave if
they wanted to work in a union restaurant was that Re-
spondent did not recognize the Union as the employees'
bargaining representative and that it would he futile for
them to join or support the Union. Such a statement is
violative of Section 8(a)(I) of the Act in that it restrains
employees and interferes with their rights guaranteed in
Section 7 of the Act. Charlena Lobhianco, .4n Indicidual.
dr/h/a I.ohk' Cal'tecria. 187 NI.RB 420 (1970): Better 1'al-
U Stores iof Mansfield. Inc., 161 NI RB 762. 763 (1963); L.:
Tote MA of Oklahoma. l(., 172 NL.RB 228 (1968). 1 further
find that the announcement to the employees about the new
and better medical and dental insurance program. when
considered in context with Larry Carilli's statement that
Respondent had decided to operate the restaurant without
a union, demonstrated to the employees that theN would get
better terms and conditions of employment in the future
without the assistance of the Union: thus, it had the in-
tended and foreseeable effect of discouraging the employees
from supporting the Union and as such violated Section
8(a)(1) of the Act.
C. The complaint alleges that Respondent, through l.ar-
ry Carilli. solicited employees either to withdraw or resign
from the Union. An examination of the record reveals that
the following evidence is pertinent to this allegation.
As previously found. at the start of the August 15. 1978.
meeting. .arry Carilli informed the employees that Respon-
dent's contract with the Union had terminated and Respon-
dent intended to operate the restaurant without the nitrn.
but wanted all of the employees to continue in his employ.
During the latter part of the meeting employee Bywater
asked larry whether the employees who chose to continue
in Respondent's employ should withdraw from the Union,
explaining that she did not believe that they could remain
union members if they worked in a nonunion restaurant.
Larry answered her question in the affirmative.?
A day or two following the August 15 meeting employee
Ingles. who had attended the meeting, visited the office of
the Union and asked for a withdrawal card, but her request
was denied. Ingles immediately informed l.arrv about this.
Larry told Ingles that there were "other ways" she could go
about withdrawing from the Union. Specifically. Larry
stated Ingles could resign from the Union or simply stop
paying her dues, but that it was up to Ingles to make her
own decision. Ingles stated she did not want to resign from
the Union because she did not know if she would be work-
ing for Respondent for the rest of her life and desired to
work in a union restaurant. Thereafter. early in October
1978, Larry informed Ingles that he had learned that an-
other employee had been allowed to take a withdrawal card
from the Union. Ingles stated she did not understand why
the t nion allowed this other employee to withdraw and not
'The description of what was stated on August 15 about withdrawing
from the t nion is based on a composite of the lestimony of employees
Bywater and Ingles. Carilli testified that an employee asked how the employ-
ees could "get out of the Union" and another employee asked whether she
could be in the Union. questions which Carilli testified he did not answer I
have rejected Caril's testimony because Ingles and Bwater mpressed me
as the more credible witnesses when they testified concerning what look
place at the August 15 meeting.
DECISIONS 01: NATIONAL LABOR RELATIONS BOARI)
Ingles. Carilli indicated that he was also puzzled by this.'4
By informing the employees who attended the August 15.
1978, meeting that they should withdraw from the Union
and by thereafter suggesting to employee Ingles. who had
advised him that her withdrawal request had been rejected
by the Union, that she either resign from the Union or
cease paying union dues, Larry Carilli engaged in conduct
which violated Section 8(a)(1) of the Act inasmuch as this
conduct took place contemporaneously with Respondent's
other unfair labor practices, particularly with Larry's state-
ment to the employees which implied that it would be futile
for them to maintain their membership in the Union since
Respondent intended to operate the restaurant without the
Union. I recognize that Larry's suggestion that the employ-
ees withdraw from the Union was expressed in answer to an
employee's question. But this is no defense because Larry's
contemporaneous statement to the employees implying that
it would be futile for them to maintain their union member-
ship had the foreseeable effect of causing the employees to
ask whether they should withdraw from the Union if they
chose to continue working for Respondent.
D. The complaint alleges that by granting the employees
a new health and welfare insurance program Respondent
violated Section 8(a)(1) of the Act. An examination and
evaluation of the evidence pertinent to this allegation fol-
lows.
Respondent decided that when his contract with the
Union terminated on August 6, 1978, he would do the fol-
lowing: institute a new medical and dental insurance pro-
gram for his employees to replace the insurance program
which had covered the employees under Respondent's con-
tract with the Union; end his bargaining relationship with
the Union and operate the restaurant as a nonunion restau-
rant.'5 He arrived at this decision prior to learning in June
1978 that the Union was taking the position that Respon-
dent was obliged to abide by the terms of the 1977 82
agreement. Also, the record establishes that Respondent de-
sired to continue employing all of his employees even
though the restaurant would operate nonunion. and Re-
spondent knew that the employees regarded their medical
and dental insurance which they were receiving pursuant to
the union contract as a significant benefit of employment.
As a result, as early as April or May 1978, Respondent
started to search for a new medical and dental insurance
program to replace the Union's program. At that time Re-
spondent instructed his son, Larry Carilli, to conduct such a
search. And, as described supra, in June and July 1978,
Larry and Jean Carilli questioned employee Bywater in an
effort to learn whether the employees would continue to
work for Respondent without union representation if Re-
spondent furnished them with medical and dental insur-
ance. Also, as described supra, in June 1978 Larry Carilli
told employee Potter that Respondent wanted to "drop the
1 Based on Ingles' testimony. I reject Carilli's testimony that what took
place was that Ingles volunteered the fact she had just returned from the
Union's office where she was told she could not have a withdrawal card
whereupon Carilli stated that this was curious inasmuch as an employee had
told him that the Union had permitted another employee to take a with-
drawal. I have rejected Canlli's testimony inasmuch as Ingles impressed me
as the more credible witness.
15 Respondent admitted that effective August 6, 1978. he intended to end
his collective-bargaining relationship with the Union and operate nonunion.
Union" and was in the process of attempting to secure a
better health insurance program for the employees. Finally.
on August 15, 1978, Larry announced to the employees that
Respondent's contract with the Union had terminated and
that Respondent had instituted a new medical and dental
insurance program which was better than the program the
employees had received with the union contract, and fur-
ther advised the employees that Respondent intended to
operate the restaurant without a union but wanted all of the
employees to continue in his employ, and suggested that the
employees withdraw from the Union.
The foregoing circumstances Respondent's knowledge
that the employees regarded the medical insurance they
were receiving as the result of union representation as a
significant employment benefit, Respondent's desire to re-
tain all of his current employees while at the same time
operating without a union, the timing of the grant of the
new and better medical insurance program coming as it did
simultaneously with Respondent's announcement to the
employees that he no longer recognized the Union as their
collective-bargaining representative, the manner in which
the annoucement about the new medical insurance pro-
gram was made to the employees, and the indications given
to the employees by Respondent's representatives that Re-
spondent regarded his withdrawal of recognition from the
Union and the implementation of a new medical insurance
program as related matters persuade me that in instituting
the new medical and dental insurance program for his em-
ployees that Respondent was motivated by a desire to dis-
courage his employees firom supporting the Union. There-
after, I find that by engaging in this conduct Respondent
violated Section 8(a)(I) of the Act.
In concluding that in granting the employees a new
medical and dental insurance program effective August 6,
1978, Respondent was motivated by a desire to discourage
the employees from supporting the Union I have carefully
considered the reason advanced by Respondent for institut-
ing the new insurance program. Respondent testified that
during the latter part of May 1978, when he had not heard
from a representative of the Union about negotiating for a
new collective-bargaining agreement to take the place of
the one scheduled to terminate August 6. 1978, he visited
an-attorney and expressed his concern that when the con-
tract terminated his employees' medical insurance would
lapse. In response, the attorney suggested that Respondent
be ready to institute another insurance program for his em-
ployees when the contract terminated, and, apparently act-
ing on this advice, Respondent ultimately secured the insur-
ance plan which he put into effect when his contract with
the Union terminated. In seeking the advice of the attorney,
Respondent admittedly told the attorney that when his cur-
rent contract with the Union terminated on August 6., 1978,
it was his intent to withdraw recognition from the Union or
as Respondent phrased it: "I told [the attorney] that I don't
want to go in the Union .... My' expiration is August 6, so
I want to be on my own." In my view, Respondent's expla-
nation of his motivation for instituting the new medical and
dental insurance program is insufficient to rebut the infer-
ence of illegality which flows from the record as a whole.
E. The complaint alleges that on August 21, 1978, Larry
('arilli "informed an employee that continued membership
838
\NI()NINO'S RESI'tRAl: \ I
in the Union would be utile because Respondent had Lde-
cided to operate as a non-union house."
In support of' this allegation. the (;eneral Counsel relies
on the testimony of employee Laura Davis. Davis was not
present at the August 15 employee meeting because she as
taking her vacation. Upon her return to work on August 2 I.
1978. it is undisputed that Carilli informed her about the
new medical and dental insurance and gave her enrollment
forms to complete and other documents explaining the new
insurance program and advised her to phone Madden. tlhe
insurance broker, if she had any questions about the insur-
ance. However, regarding other aspects of their conversa-
tion, the testimony of Davis and Carilli is in sharp conflict.
Davis testified Carilli told her that the restaurant "had gone
non-union" and that management had gotten another in-
surance plan for the employees which was better than the
previous insurance plan and, in answer to Davis' question,.
Carilli stated Respondent would still operate a "union
house" as far as wages, seniority, vacation and other work-
ing conditions were concerned. Carilli testified that. in ex-
plaining why he was giving Davis the documents concern-
ing the new insurance program, he simply told her that the
restaurant had changed the employees' insurance program
because its contract with the Union had terminated and
Respondent did not want the employees' medical insurance
coverage to lapse. My observation of Carilli and DI)ais.
when they gave their respective testimony concerning this
conversation, led me to conclude that Davis was the more
credible witness.
I find, based on the foregoing, that by informing em-
ployee Davis that the restaurant had gone "non-union" Re-
spondent violated Section 8(a)( 1 ) of the Act inasmuch as
this statement, occurring in the context of' Respondent's
other unfair labor practices. conveyed the impression to
Davis that Respondent no longer recognized the LUnion as
the employees' bargaining representative and that it would
be futile for the employees to join or support the I nion.
F. The complaint alleges that on or about August 12.
1978, Larry Carilli and Tom ('arilli encouraged and as-
sisted the employees of the restaurant with the filing of a
decertification petition. An examination of the evidence
pertinent to this allegation reveals the following.
On August 17. 1978, a rank-and-file employee of' the res-
taurant, Dana Paul Washburn, filed the decertification peti-
tion in Case 32 RD 116 asking the Board to conduct an
election to decertify the Union as the restaurant emplo'ees'
collective-hargaining representative. The Board's Statement
of Procedures, Section 101.18(a), requires that such a peti-
tion be supported by a showing that at least 30 percent o'
the employees in the affected bargaining unit desire such an
election. Thus, acting on the advice of an agent of the
Board, on August I and 12. 1978, Washburn solicited em-
ployees to sign a decertification showing of interest petition
which he had drafted. This petition, as described supra,
stated that the employees who affixed their signatures to the
petition "wish to no longer be affiliated with the Union."
Sixteen employees, including Washburn, signed the petition
as the result of Washburn's solicitations. There is insutli-
cient evidence, either direct or circumstantial, that Respon-
dent or any of his representatives were responsible for
Washburn's conduct or that Respondent or any of his rep-
resentatives otherwise assisted Washburn in the filing of the
decertificattlon petition or in securing the decertification
showing of' interest signatures. It is undisputed. however.
that the last two persons who affixed their signatures to the
decertification showing of interest petition were l.arry ('a-
rilli who ,issists Respondent in managing the business, and
I om (arilli. who is the head chef in charge of the kitchen
with the authority to hire and fire kitchen employees. Al-
though .;arry and Tom Carilli are statutory supersisors.
thes were covered by the terms o the I mnon's collective-
bargaining agreement covering the restaurant's employees
and as such were required to join the L mon under the
terms of a contractual union-securit clause, and their
terms and conditions otf employment were governed by the
agreement.
In summation, the sole evidence of Respondent's involve-
ment with the filing of the decertification petition filed by
Washburn and the decertification showing of interest peti-
tion which accompanied the decertification petition is the
fact that Supervisors Larry and lorn (arilli signed the
show ing interest petition. This conduct, under the circum-
stances of this case. does not constitute a violation of Sec-
tion 8a)( I) oft the Act. That the Carilli brothers were solic-
ited to sign the petition by the employee who circulated it is
not surprising in view of the act that the brothers had been
represented by the Union as part of the bargaining unit
which would be affected by the decertification petition and,
as a part of' this unit, had been required to join the Union
pursuant to the contractual union-security clause. and their
terms and conditions of employment were governed by the
agreement. In view of these circumstances I find that the
conduct of' the Carilli brothers in signing the showing of
interest petition did not interfoere with or coerce employees
in the exercise of' their riehts eguaranteed in Section 7: ac-
cordi ngl\. I shall recolimmend the dismissal oft' this allega-
tion.
2. T'hc alleged 8(a(') iolations
The complaint in essence alleges that Respondent refused
to bargain with the Union in violation of Section 8(a)(5) ot
the Act b withdrawing recognition from the Union as the
employees' exclusive collective-bargaining representative
and thereafter refusing to meet and bargain with the Union
and, without prior notification or bargaining with the
[: nion. unilaterally discontinuing the employees' health and
\welfire and pension programs and instituting different
health and welfare programs. The principles of law appli-
cable to these allegations are as follows.
It is settled that the presumption of majority status aris-
ing from an employer's voluntary recognition of a union as
the exclusive representative of its employees continues after
the employer's withdrawal from a multiemployer bargain-
ing unit. Tahoe Nugget. Ine. d/b/a Jim Kellev's Tahoe Nug-
,ti. 227 NLRB 357 (1976). enfd. 584 F.2d 293 (9th Cir.
1978). Thus, in May 1977 when Respondent timely with-
drew from the Association and the multiemployer bargain-
ing unit covered by the agreement. the Union presump-
tively remained the majority representative of Respondent's
employees in a single-employer bargaining unit for the re-
mainder of the 1973-78 agreement and thereafter. Tahoe
Nugge, Inc.. supra. If Respondent on the termination of the
1973 78 agreement withdrew recognition from the Union
839
D)iE('ISI()NS OF NATIONAI. LABOR RELATIONS BOARD
as the bargaining representative of the restaurant's employ-
ees, Respondent violated Section 8(a)(5) and (I) of the Act
unless he demonstrated either that the Union in fact no
longer enjoyed majority status or that his withdrawal of
recognition was predicated on a reasonably grounded
doubt as to the Union's continued majority status. 7Taho
Nugget, Inc., supra. Also Sections 8(a)(5) and 8(d) of the
Act obligated Respondent upon the termination of his col-
lective-bargaining agreement with the Union on August 6.
1978, not to effect a change in his employees' wages, hours.
and other terms and conditions of employment which con-
stitute mandatory bargaining subjects without first notify-
ing the Union and affording it the opportunity to bargain
about the change. . R. B. v. Benne KlAt:, dh/ar Williamns-
burg Steel Products Co., 369 U.S. 736 (1962). Respondent's
contributions into the health, welfare, and pension trust
funds on behalf of his employees constitute mandatory sub-
jects of bargaining within the meaning of the Act. as are the
employees' retirement and health insurance benefits. Allied
('hemical & AIkali Workers of' A merica. Local Union No. /
v. Pits.hurgh Plate Glass Compant'. Chemical Dirvison. 404
U.S. 157, 159 (1971): Harold W. Ilinson d/ lien Hlouse
Market No. 3 v. . .. R. B.. 428 F.2d 133. 137 (8th Cir. 1970)).
And it is settled that Respondent's collective-bargaining ob-
ligation did not cease on the expiration of its bargaining
agreement with the Union; rather, Respondent was obliged
to maintain existing employment conditions and "bargain
with the Union before he may permissibly make any unilat-
eral changes in [mandatory] terms and conditions of em-
ployment" established by that agreement. tinson v.
N.L.R.B.. supra, 428 F.2d at 136 137, and cases cited
therein.
a. Respondent r withdraws recognition /ror the Ulnion
Respondent admitted he intended not just to terminate
his contractual relationship with the Union when the 1973
78 agreement terminated on August 6, 1978, but also to
withdraw recognition from the Union. And, as described
supra, on August 15. 1978, Respondent's son, Assistant Res-
taurant Manager Larry Carilli. informed the employees
that Respondent had in fact withdrawn recognition from
the Union. These circumstances persuade me that Respon-
dent carried out his intention and in fact withdrew recogni-
tion from the Union effective August 6, 1978. Therefore,
inasmuch as there is no evidence that on August 6, 1978.
the Union no longer enjoyed majority status or that Re-
spondent's withdrawal of recognition was predicated on a
reasonably grounded doubt as to the Union's continued
majority support, I find that Respondent violated Section
8(a)(5) and (1) of the Act when on August 6. 1978. it with-
drew recognition from the Union.'
16 I note that Respondent testified that he decided to withdraw recognition
from the Union effective August 6, 1978. before the Union's June 6. 1978.
letter rejecting Respondent's notice terminating his contract with the Union.
Thus, this is not a situation where Respondent's withdrawal of recognition
was provoked by the Union's mistaken belief that Respondent was obligated
to abide by the terms of the 1977 82 agreement. In an) event, as discussed
infra, the Union's rejection of Respondent's effort to terminate his contract
and the Union's mistaken belief' that Respondent was bound to the current
agreement did not privilege Respondent's withdrawal of recognition
b. 7he unlilateral clangesc
As described supra, under the terms of the 1973 78 agree-
ment atid certain trust agreements Respondent was obliged
to contribute on behalf of his employees into a health and
welfare trust w'hich provided medical and dental insurance
benefits to his employees and was also obliged to contribute
on behalf of his employees into a pension trust which pro-
sided retirement benefits for his employees. When the
agreement expired on August 6, 1978. Respondent. without
notifying the Union, unilaterally discontinued these contri-
butions. reviously. on July 25. 1978, Respondent had au-
thorized his insurance broker to institute a new medical and
dental insurance program for his employees effective Au-
gust 6, 1978. which was to be underwritten by the Crown
Life Insurance Company and was to replace the existing
medical and dental insurance program. On August 15,
1978. Respondent informed the employees of this decision.
It is undisputed that prior to discontinuing the Union's re-
tirement and health and welfare programs and instituting
the Crown Life Insurance health and welfare program Re-
spondent acted unilaterally without notifying or bargaining
with the Union. Clearly, under settled principles of law,
suprlla, Respondent violated Section 8(a)(5) and (I) of the
Act by unilaterally discontinuing contributing into the pen-
sion 7 and health and welfare trust funds and similarly vio-
lated the Act by unilaterally instituting a new health and
welfare insurance program without first bargaining with the
Union about such terms and conditions of employment. 's
Respondent admits he discontinued his employees' exist-
ing retirement and health and welfare programs and insti-
tuted a new health and welfare program without notifying
and bargaining with the Union, but justifies his conduct for
three reasons: (I ) Section 302(c)(5)(b) of the Act prohibited
him from continuing to contribute into the pension and
health and welfare trust funds provided for in the agree-
ment when his obligation to abide by that agreement
ended: (2) the Union no longer enjoyed majority status
when he engaged in his unilateral conduct: (3) it was futile
for Respondent to notify the Union of his intention to
change the retirement and health and welfare programs be-
cause the Union has previously indicated to Respondent
that it was unwilling to negotiate on any subject until 1982.
I reject these defenses for the following reasons.
Respondent's contention that, in the circumstances of
this case, Section 302(c)(5)(b) of the Act precludes his con-
tinuing to contribute on behalf of his employees into the
respective pension and health and welfare trust funds has
" I reject Respondent's contention that the record fails to demonstrate a
significant difference between the retirement plan which Respondent discon-
tinued and the plan it instituted. It is undisputed that the retirement plan
which Respondent discontinued was wholly financed by Respondent's con-
tributions, whereas the new plan is a voluntary one paid for wholly by the
employees. Obviously the effect on the terms and conditions of employment
of the unit employees attendant on the change in pension plans was substan-
tial and significant and, hence, a mandatory subject of bargaining.
'8 The record establishes that the benefits under the Crown ife Insurance
Company's health and welfare insurance program instituted by Respondent,
in place of the Union's program, were substantially better than the benefits
received by the employees under the Union's program. In other words, the
effect on the employees' terms and conditions of employment attendant on
the change in the programs was substantial and significant; thus, it was a
mandatory subject of bargaining.
840
ANIONINO'S RFSTAURAN I
been rejected by both the Board and the courts. E.g.. Ien
House Market No. 3. supra at 138 139: (Charles Sarbuck.
and Diane Starbuck d/h/a Starco Firners Market, 237
NLRB 373 (1978).
Respondent's contention that the Union did not enjoy
majority status when he engaged in his unilateral conduct is
without factual support. The record establishes that, on Au-
gust II and 12. 14 employees signed a petition stating they
"wish to no longer be affiliated with the Union." however,
there is no evidence to indicate the number of employees in
the appropriate unit at that time or on any, other date;:
hence I am unable to conclude that the 14 employees who
signed the petition constituted a majority of the Respon-
dent's unit employees.2" As indicated. supra, it was Respon-
dent's burden to demonstrate that the Union no longer en-
joyed majority status and since the information pertaining
to the number of employees in the appropriate unit was
particularly within Respondent's possession, it is a fair in-
ference that Respondent's ailure to adduce such evidence
was due to the fact that it would not have supported the
Respondent's position."
In support of his contention that it would have been fu-
tile for him to afford the Union an opportunity to bargain
about the change in the employees' pension and health and
welfare programs, Respondent points to the Union's letter
of June 6. 1978, wherein the Union notified Respondent it
expected him to abide by the terms of the Union's 1977 -82
contract with the Association. Respondent argues that he
was not required to notify the Union of his intent with
respect to employees' retirement and health and welfare
programs, inasmuch as the Union, by its June 6 letter, had
indicated it would refuse to bargain about these matters. In
support of this argument, Respondent cites Tinies Publish-
ing Company. et al.. 72 NLRB 676 (1947). where the Board
stated that "the test of good faith in bargaining . . . is de-
pendent in part upon how a reasonable man might be ex-
pected to react to the bargaining attitude displayed by
those across the table"; thus, "a union's refusal to bargain
in good faith may remove the possibility of negotiation and
thus preclude the existence of a situation in which the em-
ployer's own good faith can be tested. If it cannot be tested.
its absence can hardly be found." I am of the opinion that
in the instant case Respondent's disputed unilateral con-
duct was not privileged due to the Union's conduct inas-
1 1 reject Respondent's assertion that since employee Washburn alleged in
the decertification petition he filed with the Board in Case 32 R) 116 that
Respondent employed 26 unit employees. this establishes that in fact Re-
spondent employed 26 unit employees. In offering the petition into evidence.
the General Counsel did not directly or indirectly lead Respondent to believe
she was offenng it into evidence to establish the truth of what it alleged. And
at no time did the General Counsel say or do anything which would have
reasonably caused Respondent to believe she was conceding that there were
26 employees employed in the appropriate unit.
I doubt, in any event, that proof of the Union's lack of majority status as
of' August 12. 1978. would constitute a defense to Respondent's unilateral
discontinuance of the employees' union retirement program and health and
welfare insurance program. which took place August 6, 1978.
21 During the hearing I precluded Respondent from litigating the question
of whether absent the signatures of the Carilli brothers there w.as an ade-
quate showing of interest to support the decertification petition filed in ('ase
32 RD 116. See N.L R.B. . J 1. Cau.se C(inuan. 201 .2d 597. 600 (9th 'lr
1953); ANL.R.R v. PA.F Equipmenn C. In , 528 F.2d 286, 287 (10th (r
1976): N.L.R.B. v. Air Control Produscts o St Piervhurg, , , 335 .2d 245.
250 (lOth Cir. 1964). But I did nt preclude from litigating the question of
the tlnion's majority status and Respondent makes no such contention
much as it was not a response to the Union's conduct and.
in any event. the Ulnion's conduct did not privilege the kind
of sellf-help engaged in by Respondent.
In Malnor Mtining nd ('ontlracinit Corporalion, a case
similar to the instant situation. a union adopted a take-it-
or-leave-it bargaining stance and insisted that the respon-
dent-employer sign an industrN contract. In response. the
respondent-employer unilaterally instituted a pay raise
which it had never offeled to the union. The Board held
that the respondent-employer's unilateral conduct was a
violation of Section 8(a)15) of the Act and that. despite the
Union's take-it-or-leave-it bargaining position. the respon-
dent-employer had to afford the Union an opportunity to
bargain about the pay raise. 197 NI.RB at 1059. Also in
W' 1' CWros.; & ('o popanv, In'..2' the Board indicated it
would not apply the doctrine enunciated in 7'irn's Publish-
ing so as to permit an employer to engage in self-help to the
extent of withdrawing recognition from the Union 24 or of
instituting unilateral changes in the employees' terms and
conditions of employment for the purpose of undermining
the Union's prestige in the ees of the employees. 77 NLRB
at 1165 66. This is what took place in the instant case. Here
Respondent's futility argument has all of the appearances
of an afterthought. For Respondent's conduct was not that
of an employer who was patiently waiting to receive the
Union's negotiators and was required to take independent
action only when the Union's negotiators did not arrive. On
the contrary, as I have found sutlra, even before he learned
that the Union was taking the position that Respondent
was obligated to abide by the terms of the 1977 82 agree-
ment, Respondent had decided he was released altogether
from any duty to seek out, receive, or talk to the Union's
representatives. Respondent had decided to sever com-
pletely his collective-bargaining relationship with the
Union by withdrawing recognition and, in conjunction with
this decision, had decided to grant the employees a new
medical and dental insurance program in order to dissuade
them from supporting the Union. It is for all of the afore-
said reasons that I have rejected Respondent's "futility ar-
gument."
In rejecting Respondent's "futility argument." I have
considered Local 777. Demnocratic Union Organizing Coni-
,ittee. Seaarers Internatio)nal Union of North Anr erica,
AFL.-O('10 [Yellow Cab Companl v. NV.L.R.B. 603 F.2d
862 (D.C. Cir. 1979) relied upon by Respondent. and am
22 197 NLRB 1057 (1972)
2 77 Nt.RB 1162 (1948).
2 See also Timns Publishing (Compnar, Ening Independent, In,-. Ves
Printing, Inc.. 72 NLRB 676, 683 (1947). where the Board stated: "Although
contemporaneous conduct of a union in connection with bargaining may
well be a factor to he considered in determining if an employer has refused to
bargain. the Act plainly does not contemplate that a refusal by a union to
bargain at one time operates to absolBe an employer from obeying the mann-
date of the Act to bargain collectively on any subsequent 'occasioln." See also
Higgins, Inc. 90 NLRB 184. 185 1950). I recognize that there is language In
R,sldhiome (Construciion Corp. 170 NLRB 668 (1968) which indicates that
the respondent-employer in that case was permitted to refuse to recognize a
union because of the union's take-it-or-leae-il bargaining position: however.
it is plain from the I)eclslon as a whole, particularly the "('oncluslns of1
.aw." that Roadh,ne stands or the proposition that an employer is privi-
leged to refuse to meet and bargain with a uolin. as distinct troinl refusing to
recognize r withdrawing recognition from a unin. so slong ;i the union IS
proposing the emploser sign an industry or area contract n a take-it-or-
leaive-t hims. 170 NLRB at 77
X41
DECISIONS OF NATIONAL. I ABOR RELATIONS BOARD
persuaded it is significantly distinguishable from the instant
case. There the respondent-employer unilaterally leased its
taxicabs. but in finding that its conduct was permissible, the
court concluded that the employer's "attitude was itself in
large part provoked by the Union's outspoken and unwav-
ering rejection of cab leasing" and that "the Union gave a
public demonstration of its intransigent opposition to a
management proposal, attempted to thwart the realization
of this proposal by political action, and conditioned any
bargaining on an illegal recognition of it as collective-bar-
gaining representative." In addition, the court noted that
the respondent-employer informed the union that it was
considering leasing and invited discussion befre the final
decision. In the instant case Respondent's unilateral action
was motivated by a desire to undermine the Union and was
a part and parcel of Respondent's illegal withdrawal of rec-
ognition from the Union. Moreover, the sole conduct seized
upon by Respondent to justify its unilateral action was the
Union's letter of June 6. 1978, which does not remotely
resemble the union's conduct in Yellow Cab Co. supra. Also
in the instant case, unlike Yellow Cab Co., Respondent nev-
er indicated to the Union that it intended to make the uni-
lateral changes in question and, following the Union's letter
of June 6, rejected an invitation of the Union to meet and
discuss the letter.
c. The refu.sal to meet and bargain
The General Counsel contends that Respondent refused
to bargain within the meaning of Section 8(a)(5) of the Act
when he refused the Union's November 20. 1978, bargain-
ing request. An evaluation of the evidence pertinent to this
contention follows.
As described supra, on August 6, 1978, Respondent,
when its contract with the Union terminated, completely
severed its collective-bargaining relationship with the
Union. It withdrew recognition from the Union and an-
nounced this to its employees. During this period the Union
did not press Respondent to meet with it for the purpose of
negotiating a new collective-bargaining agreement inas-
much as the Union mistakenly thought that Respondent
had failed to withdraw in a timely manner from the Associ-
ation and because of this was obliged to abide by the Asso-
ciation's current contract with the Union which did not
terminate until 1982. On October 30. 1978, however. the
Board's Regional Director, in connection with the Union's
charge filed in Case 32-C('A-1180. notified the Union and
Respondent that it was dismissing that part of the charge
wherein the Union alleged that Respondent was obligated
to abide by the terms of the Union's current contract with
the Association. Thereafter, on November 20, 1978, the
Union. through its attorney, William Sokol, wrote a letter
to Respondent's attorney, Stephen McKae, which has been
set out in detail upra. Sokol's letter unambiguously indi-
cated that the Union wanted to meet and bargain with Re-
spondent about the terms of a new collective-bargaining
agreement and asked that a representative of Respondent
contact the Union's secretary-treasurer to make arrange-
ments for a negotiating meeting. Respondent ignored this
letter so, on January 10. 1979, Attorney Sokol phoned At-
torney McKae and again asked for a negotiation meeting
between Respondent and the Union so that the parties
could negotiate the terms of a new contract. McKae re-
jected this request. stating that he had been notified that the
decertification petition in Case 31 RI) 116 which had pre-
viously been dismissed b the Regional I)irector. was going
to be reinstated." Thereafter, on January 15. 1979. the
Union wrote Respondent and renewed its request for con-
tract negotiations and on the same day filed its unfair labor
practice charge in Case 32 (-A 1502 contending that Re-
spondent had violated the Act bh his refusal to meet and
bargain with the Union obr a new contract. On Januar 19.
1979. Attorney McKae. on behalf of Respondent. answered
the Union's January 15 request for contract negotiations.
McKae, b letter, notified the Union that Respondent had
serious doubts about the Union's majority status and sug-
gested that the Union delay negotiations until a final deter-
mination had been made concerning the decertification pe-
tition in Case 32-R - 1 16, but stated that i the Union
insisted upon meeting for negotiations. Respondent was
willing to agree to this request and suggested that prior to
the parties' first negotiating meeting. they exchange written
proposals through the mail and that the first meeting be
scheduled to take place after the parties had reviewed their
respective proposals. On March 9 the Union submitted its
written contract proposals to Respondent. and on April 12
Respondent submitted its written contract proposals to the
Union. In May 1979. the parties met twice to negotiate the
terms of a new contract but without success.
In summation. the record establishes that Respondent
withdrew recognition from the nion and thereafter twice
rejected the Union's request for contract negotiations and
only agreed to the Union's bargaining request after a delay
of 2 months and after the Union had filed its unfair labor
charge in Case 32 CA 1502. Under the circumstances. I
am of the view that Respondent's refusal to meet and bar-
gain with the Union from November 20. 1978. until Janu-
ary 19. 1979. constitutes a refusal to bargain within the
meaning of Section 8(a)(5) of the Act.
In concluding that. by refusing to meet and bargain with
the Union from Noember 20. 1978. until Januar3 19. 1979.
that Respondent engaged in an illegal refusal to bargain. I
have considered and rejected Respondent's contention that
it was not obligated to bargain with the Union because of
the decertification petition filed in C(ase 32 RD 116.2 In
rejecting this defense I have taken into account the fct that
there is no evidence that Respondent unlawfully assisted or
sponsored the filing of the decertification petition. Nor.
prior to the employees signing the decertification showing
of interest petition on August I I and 12. 1978. did Respon-
dent engage in sufficient unfair labor practices so that it can
be concluded that Respondent's illegal conduct was the
genesis of the decertification petition.
7 But this does not
end the matter, for commencing on August 15. 1978. imme-
I he petition was in fact reinstated bh he Regional [)irecttr in January
10, 1979, pending the ultimate disposiltion f the unfair labor practices al-
leged Ito have been committed b Respondent in Case 32 (CA I XO
21 I have also considered and rejected Respondent's cntention that it was
not ohligated to meet and bargain with the Union becalu.e the nlion did not
represent a majori of the enlplosees. M1 reasonrs foir rejecting thi delense
have been set forth upra
27 he sole unfair labor praclce crmlmitted hb Responden uwhich was
con mnlunicated to the emplos ees prior to heir signing he decerlificallon
showing of interest petition sias the interrogati o emipl,1.ee Bu. ater bh
Jean and I.arr) Carilli.
842
ANTONINO'S RESTAURANT
diately after Respondent learned that his employees were
circulating a decertification showing of interest petition, 2
Respondent committed numerous and serious unfair labor
practices which tended to undermine the Union's represent-
ative status and precluded the holding of a fair decertifica-
tion election in Case 32-RD 116. Thus, on August 15,
Assistant Manager larry Carilli. Respondent's son, an-
nounced to the employees that Respondent intended to op-
erate the restaurant without the Union. thus implying it
would be futile for the employees to continue their mem-
bership in or support of the tinion. lie suggested that if'
they remained in Respondent's employ they withdraw from
the Union and, for the purpose of undermining the Union's
support among the employees. announced that effective
August 6, 1978. Respondent had granted the employees a
new, improved medical and dental insurance program. In
fact. Respondent, on August 15, 1978. instituted a new, im-
proved medical and dental insurance program for the em-
ployees in order to discourage them from supporting the
Union. These unfair labor practices, particularly the grant
of a new, improved medical and dental insurance program,
in order to wean the employees away from the Union, were
calculated to have a lingering effect upon the employees,
which impaired their ability to express a free choice in any
decertification election held in connection with Case 31
RD- 116.25 In view of this, and in the absence of any evi-
dence probative of the Union's loss of its majority status, as
established by its status as an incumbent union. I believe
that it would be inappropriate to allow Respondent to rely
on the decertification petition as a defense to its refusal to
bargain with the Union. Cf. JWestminster CommunitO Hospi-
ral, Inc., 221 NLRB 185 (1975).
CONCILtSIONS OF LAW¢
I. Respondent is an employer engaged in commerce
within the meaning of Section 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. All full-time and regular part-time employees engaged
in or in connection with the preparation, handling, and
serving of food and/or beverages, employed by Respondent
at his Hayward, California restaurant: excluding all other
employees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times material the Union has been and is the
exclusive collective-bargaining representative of all the em-
ployees in the aforesaid bargaining unit fr the purposes of
collective bargaining within the meaning of Section 9 (a) of
the Act.
is As described supra, on August 12 hoth of Respondent's sons learned ofI
the petition.
9 In this regard, he record indicates that a major reason hat the emplio-
ees desired union representation was the medical and dental insurance bene-
fits contained In the non's contract with Respondent Thus, the Respoln-
dent's conduct in Instituting Its own mprosed medical and dental insurance
program in lieu of the nn's "ent far towards remedying the ver5 gries-
ances which gave rise to the union interest and desiroed for the moment at
least the employsees' need for greater strength" Tcaco. I : ./ R B, 436
F 2d 20. 525 (7th ('r 1971)
5. Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (I ) of the Act its
follows: By withdrawing recognition from the Union as the
representative of the employees in the appropriate unit: by
refusing to meet with the Union to negotiate the terms of a
collective-bargaining agreement covering the employees in
the appropriate unit: by unilaterally discontinuing on Au-
gust 6. 1978. without bargaining with the nion the health
and welfare program and pension plan which had covered
the unit mploees prior to that date: hb unilaterall, with-
out hbargaining with the Union. instituting a nesw medical
and dental insurance program to cover the unit emplosees.
6. Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)( I ) of the Act as follols 5:
By interrogating an employee about her union member-
ship: by suggesting that employees withdraw from the
Union: by suggesting that an employee resign from the
Union or cease paying dues to the Union: b implying to
employees that it would be futile for them to join or support
the Union because Respondent intended to operate his
business without the Union; by granting employees a new
medical and dental insurance program in order to discour-
age them from supporting the nion.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 26) and (7) of the Act.
tilt RtI;MtDY
In order to effectuate the policies of the Act. I find it
necessary that Respondent be ordered to cease and desist
from the unfair labor practices found and from like or re-
lated invasions of the employees' Section 7 rights, and to
take certain affirmative action.
Having found that Respondent iolated the Act by sub-
stituting the Crown l ife Insurance Company's medical and
dental insurance program for the medical and dental insur-
ance program which had previously covered the unit em-
ployees. I shall recommend that Respondent be ordered to
restore, upon the Union's written request, the medical and
dental insurance program which was in effect previously. In
order to allow the Union ample opportunity to consider
whether to request the reinstatement of the previous medi-
cal and dental insurance program, while not leaing the
matter open indefinitely. I will recommend that the Union
be required to make its decision within 60 da's of the date
of the Board's Decision. If the Union does not request the
reinstatement of the medical and dental insurance program
which w\as in effect prior to the Crown Life Insurance Com-
pany's program. the Crown Life Insurance Company's pro-
gram will remain in effect. Respondent will have 40 days
after the receipt of the Union's written request to replace
the Crown Lif e Insurance CompanN's medical and dental
program with the previous program.
Having found that Respondent violated the Act bh dis-
continuing making contributions on behalf of the unit em-
ployees into the pension and health and welfare trust funds
included in the Respondent's contract \with the Union.
which terminated August 6. 1978. 1 shall recommend that
Respondent make whole the unit emplo,,ees b ping all
pension, health, and weltfare contributions into said trust
fuilnds which have not been paid ind s hich would have
843
DECISIONS OF NATIONAI. LABOR RLATIONS BOARI)
been paid but for the unlawful conduct found herein. and
continue such payments until such time as the Respondent
negotiates in good faith with the Union to a new contract or
impasse or, as decribed above, the Union fails to make a
written request for the restoration of the health and welfare
program requiring such contributions.
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:
ORDER3 °
The Respondent, Anthony Carilli d/b/a Antonino's Res-
taurant. Hayward. California. his agents, successors. and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Hotel, Motel, Restaurant Employees and Bartenders
Union, Local 50. affiliated with Hotel and Restaurant Em-
ployees and Bartenders International Union, as the exclu-
sive representative of its employees in the following appro-
priate unit:
All full-time and regular part-time employees engaged
in or in connection with the preparation, handling, and
serving of food and/or beverages, employed by Re-
spondent at his Hayward, California restaurant: ex-
cluding all other employees, guards and supervisors as
defined in the Act.
(b) Refusing to bargain collectively with the above-
named Union by changing the wages. hours, or other terms
and conditions of employment of the employees employed
in the aforesaid bargaining unit without bargaining with the
Union in good faith to an impasse.
(c) Interrogating employees about their union member-
ship.
(d) Suggesting that employees either withdraw or resign
from the above-named Union, or any other labor organiza-
tion.
(e) Implying to employees that it would be futile for
them to join or support the above-named Union because
Respondent intended to operate without the Union.
(f) Granting the employees better terms and conditions
of employment in order to discourage them from support-
ing the above-named Union or any other labor organiza-
tion.
(g) In any like or related manner interfering with, re-
straining. or coercing his employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named Union. as the exclusive representative of all the em-
ployees in the aforesaid appropriate unit, with respect to
rates of pay. wages, hours of employment. and other terms
and conditions of employment and. if an agreement is
"0 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 findings.
conclusions. and recommended Order herein shall, as pros ided in Sec. 102.48
of the Rules and Regulations, he adopted by the Board and become its
findings, conclusions. and Order, and all objections thereto shall he deemed
waived for all purposes.
reached. embody such understanding in a signed agree-
ment.
(b) Make whole the employees in the appropriate unit by
paying all pension. health, and welfare contributions. as
provided in the collective-bargaining agreement between
Respondent and the above-named Union which terminated
August 6. 1978. which have not been paid and which would
have been paid but for the unlawful conduct found herein,
and continue such payments until such time as is set forth
in the section of this Decision entitled "The Remedy."
(c) Upon written request from the Union. and in the
manner set forth in the section of this Decision entitled
"The Remedy." rescind the Crown Life Insurance Compa-
ny's medical and dental insurance coverage for the unit em-
ployees and immediately reestablish for these employees,
without any lapse in coverage, the medical and dental in-
surance coverage which was terminated on August 6, 1978.
(d) Preserve and, upon request, make available to the
Board or its agents. for examination and copying, all pay-
roll records. social security records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of contributions due under the terms of
this Order.
(e) Post at his premises in Hayward. California, copies of
the attached notice marked "Appendix."" Copies of said
notice. on forms provided by the Regional Director for Re-
gion 32, after being duly signed by Respondent's represent-
ative. shall be posted by him for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(f) Notify the Regional Director for Region 32, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
"' 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 l.abor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPENDIX
No-rl(1 To) EMPI OYIIS
PoSIt)E BY ORDER OF IE
NAIIoNAI LABOR REI.All1NS BOARD
An Agency of the United States Government
I wI.. NOI refuse to bargain collectively in good
faith with Hotel, Motel, Restaurant Employees and
Bartenders Union. Local 50, affiliated with Hotel and
Restaurant Employees and Bartenders International
Union, as the exclusive representative of my employees
in the following appropriate bargaining unit:
All full-time and regular part-time employees en-
gaged in or in connection with the preparation, han-
dling, and serving of food and/or beverages. em-
ployed by me: excluding all other employees, guards
and supervisors as defined by the National Labor
Relations Act.
844
ANIONINO'S RESI AIJRAN-I
I w'l. N refuse to bargain collectively with the
ahove-named Union by changing the wages, hours, or
other terms and conditions of employment of the em-
ployees employed in the appropriate bargaining unit
without bargaining with the Union in good faith to an
impasse.
I Wl.l. Nl question employees about their union
membership.
I WilL NOl suggest that my employees either with-
draw or resign rom the above-named Union or an3
other labor organization.
I wni.. Not imply to employees that it would he fu-
tile for them to join or support the above-named
Union because I intend to operate m) business without
the Union.
I WIl.. NOI grant my employees better terms and
conditions of employment in order to discourage thern
from supporting the above-named Union or any other
labor organization.
I WILL. NOT in any like or related manner interfere
with, restrain. or coerce my employees in the exercise
of their rights guaranteed in Section 7 of the Act.
I wi.1 upon request, bargain collectivel with the
above-named Union, as the exclusive representative of
all the employees in the appropriate unit, with respect
to rates of pay, wages, hours of employment. and other
terms and conditions of employment and. it an agree-
ment is reached, embody such understanding in a
signed agreement.
I n.l. make whole the bargaining unit employees
hb paying all pension and health and welfare contribu-
tions. as provided in my contract with the above-
named Union which terminated August 6. 1978. which
contributions have not been paid and which would
have been paid but or my unlawful conduct.
I xl.l. upon written request from the above-named
Union rescind the unit employees' Crown Life Insur-
ance Company's medical and dental insurance cover-
age and immediately reestablish for these employees,
without any lapse in coverage. the medical and dental
insurance coverage which was terminated on August 6.
1978.
ANitioNY CARII l. I)/B/ ASNI)NIN()'s RISIAt -
RAN I
845