Captain'S Table

National Labor Relations Board - Board Decisions

Jun 9, 1988

289 N.L.R.B. 22 (N.L.R.B. 1988)

22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nagio Restaurant , Inc. d/b/a Captain's Table and
Local 6, Restaurant and Club Employees and
Bartenders Union, AFL-CIO. Case 2-CA-
18465
June 9, 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
CRACRAFT
On March 8, 1983, Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.2
The judge found that in negotiations for a con-
tract with the Union, the Respondent failed to bar-
gain in good faith in violation of Section 8(a)(5)
and (1) of the Act by engaging in delay and formu-
lating and adhering to proposals designed to stall
negotiations , avoid reaching agreements , and un-
dermine the Union as bargaining representative.
We reverse, finding that on the facts of this case
the Union did not test the Respondent's willingness
to bargain and that the Respondent's conduct
cannot therefore be found unlawful.3
The operative facts follow. On June 22, 1981,4
the Respondent agreed to recognize Local 6 (the
Union) as the collective-bargaining representative
of its employees previously represented in two sep-
arate units by two locals that at some point had
merged into Local 6. The Union waited 6 weeks
before contacting the Respondent about a date to
meet and bargain. The parties met, as agreed, on
August 18. The Union presented its standard form
contract, the provisions of which were previously
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We deny as untimely the General Counsel's request for backpay to
remedy a unilateral reduction in wages made by the Company following
the parties' final bargaining session No violation based on this conduct
was alleged in the complaint, and the General Counsel sought relief with
respect thereto for the first time in exceptions to the judge's decision
The Company was therefore never given an opportunity to litigate this
issue
s See generally Times Publishing Co, 72 NLRB 676, 683 (1947)
* All dates are in 1981 , unless otherwise indicated.
included in the contracts between the Respondent
and the now merged locals. The Union also pre-
sented economic demands. The Respondent indi-
cated that the Union's demands were too high and
that the Respondent would review the proposed
contract and get back with the Union.
The Respondent's negotiators, President Biagio
Musso and his counsel, Pinto, met some time there-
after and worked on counterproposals. In late
August or early September, Union Negotiator
Darwin Lanyi called Pinto to arrange a second
meeting . Pinto indicated the earliest date available
for himself and Musso was late October. Lanyi
sought an earlier meeting but agreed to the Octo-
ber date proposed by Pinto.
The October 22 meeting lasted 3 hours. Pinto
opened by stating that the Union's proposals were
far too expensive. He reviewed each provision of
the Union's standard form contract and proposed
substantial deletions or revisions. Action on the
Union's proposed "Present Practice" clause was
deferred pending resubmission of a list from the
Union enumerating the practices, privileges, and
benefits the clause would obligate the Respondent
to maintain.5 Concerning economic matters, Pinto
said the Respondent's terms "would be a step back-
wards," that there would be no increase in pension
or insurance contributions, and that, if anything,
there would be a 25-percent reduction in wages.
Pinto said the Respondent was not prepared to
give specific counterproposals to the Union's eco-
nomic demands. The meeting closed with the par-
ties agreeing to meet again in November.
The November 17 meeting was held as sched-
uled. Lanyi indicated that the Respondent's sug-
gested changes to the Union's standard form con-
tract were, in the majority, out of line and unac-
ceptable. The Union came without the list of
"Present Practices" the Respondent had requested.
The Respondent did not have the specific econom-
ic counterproposal sought by the Union. In fact,
neither side made concrete proposals and no
progress was made.
The fourth bargaining session , scheduled and
held December 22, lasted about 2 hours. The
Union again indicated that the Respondent's re-
quested text changes to its standard form contract
were unacceptable. Lanyi admitted that there was
some give and take on these provisions. According
to Lanyi, the Respondent made a "big thing" of
wanting the Union to provide the list of "Present
Practices." Lanyi said the employees would know
' Although not discussed by the judge, this fact is reflected by Pinto's
notes of the October 22 meeting, which Lanyi testified accurately reflect
the changes proposed by the Respondent.
289 NLRB No. 6
CAPTAIN'S TABLE
this information better than he would and he did
not have such a list. The Union adhered to its pro-
posed wage increases and renewed its request for
economic counterproposals. The Respondent said it
was losing money, that it could not come up with
the increases, and asked for a 50-percent wage cut
for all employees.6
Either at or after the December 22 meeting, the
parties agreed to get together after the holidays.
No meetings occurred during the month of Janu-
ary, however, due to Musso's illness. Thereafter,
neither party attempted to contact the other.'
6 The judge found the Respondent 's December 22 economic proposal
to be "spurious" in nature and independent evidence of a lack of good
faith because it required a wage reduction that would have put the em-
ployees below the legal minimum wage . The record, however, is far from
clear exactly what hourly wage rate employees in each unit classification
earned or what they would receive as a result of the Respondent's wage
reduction proposal . Even where dollar figures are mentioned, there is no
indication whether these figures include tips , gratuities , and meals, all rel-
evant to the determination of the hourly wage rate of the subject employ-
ees See generally Fair Labor Standards Act, 29 U.S.C. §§ 201-219. Fur-
ther, the record fails to support the judge 's finding that "[t]he parties at
the hearing accepted it as a given proposition" that the Respondent's pro-
posed reduction would have brought employees below the legal mini-
mum wage The subject of minimum wage was raised at the hearing by
counsel for the General Counsel, who asked Musso if he realized that "if
the union agreed to the proposed cut or wages , that it would have put
the wages of the employees below the minimum wage?" Musso said he
was being advised by counsel that "I was paying for Darwin Lanyi, that
he took the last Labor Department minimum ; that's what he could do."
Counsel for the General Counsel then sought clarification by asking
Musso whether he was saying that "if the 50-percent cut would have put
the wages below the minimum wage scale, as required by the govern-
ment, you were not aware of it ." The Respondent's counsel objected to
this question on the grounds that Musso had testified to what his lawyer
advised him. The judge sustained the objection , noting , "I think the point
is made." No further testimony regarding minimum wage was elicited by
any party. Although counsel for the Charging Party asserted in summa-
tion, as does the General Counsel in her brief to the Board , that the Re-
spondent's wage offer was below the legal minimum , we do not find the
above testimony , the only evidence of record on the subject , sufficient to
support a finding that the Respondent 's wage offer would have brought
employees below the legal minimum . In addition , Musso's testimony that
the Respondent's proposed 50-percent reduction would have put employ-
ees on a par with the average wage paid by nearby restaurants is uncon-
tradicted On these facts we find the evidence fails to establish that the
Respondent proposed reducing employees' wages below the legal mini-
mum
9 The judge found that following the December 22 bargaining session,
Lanyi testified that he called Pinto to set the parties' next meeting date,
that Pinto promised to talk to Musso and get back with Lanyi to sched-
ule a date to resume negotiations; and that when Pinto failed to do so by
January 13 , the Union , believing the Respondent was "dragging its feet"
in setting up a fifth meeting, filed the charge initiating the instant pro-
ceeding . Contrary to the judge, the record establishes that the charge
was filed on December 2 after the parties ' third bargaining session. Fur-
ther, Lanyi did not testify that he called Pinto after the fourth and final
December 22 meeting Rather , at one point , when Lanyi was claiming
that the December 22 meeting never occurred , he testified that he might
well have had a telephone conversation with Pinto in early January, but
he "didn't know " Later, when Lanyi was recalled and testified that the
December 22 meeting did in fact occur, he denied calling Pinto after the
December 22 meeting . Accordingly, Lanyi's testimony does not support
a finding that the charge was precipitated by the Respondent 's dragging
its feet in setting up a fifth meeting. Rather, it supports our finding that
after plans for a January meeting were abandoned due to Musso's illness,
the parties failed to contact one another, and thus must share responsibil-
ity for the fact that a fifth meeting never occurred.
23
We do not agree with the judge that these facts
show the Respondent breached the obligation it
shared with the Union under Section 8(d) of the
Act to "meet at reasonable times and confer with
respect to wages, hours, and other terms and con-
ditions of employment." The judge found that the
Respondent exhibited "inordinate delay" in coming
to the bargaining table by virtue of its request that
the second bargaining session be held 1-1/2 months
after the date of the Union's call to arrange such a
meeting. The Respondent told the Union its pro-
posed date was the earliest available for its only
two negotiators. The Union, which itself had
waited an equivalent period after the Respondent
agreed to bargain before attempting to arrange the
parties' first meeting, did not contest the explana-
tion offered and, in fact, acceded to the meeting
schedule the Respondent proposed. Although we
do not encourage such prolonged delay between
negotiating sessions, particularly one so meagerly
explained, we do not find this single unchallenged
request to schedule a meeting on the first date all
negotiators were available supports the judge's
finding of inordinate delay by the Respondent.
Also lacking evidentiary support is the judge's
finding that the Respondent engaged in delay at
and after the second meeting. Like the first two
meetings , the third and fourth proceeded without
delay or rescheduling by either side. At the second
meeting the Respondent made counterproposals to
the Union's standard form contract. The third
meeting was devoid of proposals by either side. By
the close of the fourth meeting the Respondent had
yielded on some of its proposed changes to the
Union's standard form contract and had made a
specific wage proposal as the Union had requested.
For its part, the Union had yielded on some of the
Respondent's proposed changes. The Union had
not, however, compiled the list of "Present Prac-
tices" important to, and repeatedly sought by, the
Respondent. Following the fourth meeting and
Musso's January illness, neither party contacted the
other to pursue negotiations further. On these facts,
no charge of unlawful delay can legitimately be
levied against the Respondent.
Nor do we find that when negotiations ended
prematurely through the default of both parties
after the December 22 meeting, the Union had suf-
ficiently tested the Respondent's proposals to
permit us to assess the latter's willingness to bar-
gain in good faith. In this regard, the judge's find-
ing that the Respondent rigidly adhered to its pro-
posals for substantial contract revisions and wage
reductions predictably unacceptable to the Union is
not supported by the record. The Respondent's
proposed revisions to the standard form contract
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
made at the second meeting were criticized as
being "out of line" by the Union when the parties
next met. The Union made no counterproposals
until the fourth meeting, however, when, as the
Union admits, some give and take occurred. At the
first negotiation session , the Respondent ' had
termed the Union's demand for annual wage in-
creases too high. The Respondent's first specific
counterproposal regarding wages, given on De-
cember 22, was a starting point for future negotia-
tions. The Respondent neither stated nor suggested
by its conduct that it intended its first wage offer
to be its last." To the contrary, it is uncontested
that the Respondent's wage offer was on the table,
awaiting a response, at the close of the parties'
fourth and final bargaining session . An anticipated
fifth meeting, at which wages and other outstand-
ing issues might have been discussed, never materi-
alized due to the mutual neglect of the parties.
The bargaining process in this case reveals that
the normal give and take of negotiations had just
begun when the Union, soon after the parties' ini-
tial exchange of proposals, filed the instant unfair
labor practice charges. Only one more meeting fol-
lowed before the parties drifted apart, leaving the
Respondent's proposals on the bargaining table.
Under these circumstances, and absent evidence
that the Respondent engaged in any unlawful con-
duct away from the bargaining table that might
have affected the negotiations, we cannot find the
facts establish that the Respondent exhibited an un-
willingness to reach agreement.
Accordingly, we shall dismiss the complaint.
tional Labor Relations Act (the Act), by reason of the
Respondent's alleged failure to bargain collectively in
good faith with the representative of its employees. The
case is based on the contention that, though the Re-
spondent met with the Union for negotiations on several
occasions, it did not bargain in good faith with the inten-
tion of reaching an agreement , as evidenced by the fact
that the Respondent made proposals calling for the elimi-
nation of numerous provisions contained in earlier collec-
tive-bargaining agreements that Respondent had had
with predecessor unions , the making of unreasonable
wage counterproposals, and delaying of the negotiations.
The Respondent's answer denies all allegations of
wrongdoing and statutory violation and places in issue
the jurisdiction of the National Labor Relations Board in
this case.
The Respondent alleged as a first affirmative defense
that employees in another restaurant owned by the
owner of Respondent had rejected Local 6 as their bar-
gaining agent in a Board -supervised election and that the
instant action was instituted after filing of a petition for
an election, by the employees of the Respondent without
knowledge or participation of Respondent' s management.
A second affirmative defense alleged that each of the res-
taurants does less than $500,000 gross annual volume.
The parties were afforded full opportunity to be heard,
to call, examine and cross-examine witnesses , and to in-
troduce relevant evidence. Posthearing briefs have been
filed on behalf of the General Counsel and on behalf of
the Respondent.
On the entire record and based on my observation of
the demeanor of the witnesses and the manner in which
they gave their testimony, and after consideration of the
briefs submitted, I make the following
FINDINGS OF FACT
ORDER
The complaint is dismissed.
8 Musso in fact testified that the 50-percent wage cut was proposed to
see how low the Union would go and where the parties were going to
meet He indicated that the Respondent was willing to give more and
awaited the Union 's response
Haywood E. Banks, Esq., for the General Counsel.
William P. Maloney, Esq. (Perini, Maloney & Gottlieb), of
New York, New York, for the Respondent.
Rochelle L. Roth, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
This case was heard before me on September 30, 1982, at
New York City. The charge was filed on December 2,
1981, by Local 6, Restaurant and Club Employees and
Bartenders Union, AFL-CIO (the Union). On January
13, 1982, a complaint and notice of hearing was issued
alleging violations of Section 8(a)(1) and (5) of the Na-
I. JURISDICTION
In its answer, Respondent admits that it and Musso's
860-2 Rest., Inc. are corporations wholly owned by
Biagio Musso, which operate seafood restaurants in New
York City at 410 Avenue of the Americas (Captain's
Table) and at 860 Second Avenue (Musso's), respective-
ly, and that both are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. Respondent also admitted, and stipulated at the
hearing, that the aggregate purchases made by each res-
taurant from points outside New York State exceeded
$10,000 per year. Respondent disputed the Board' s juris-
diction in this case, however, on the ground that the
businesses are separate and independent entities. It al-
leged that each restaurant's gross receipts were less than
$500,000 per annum. Although the Respondent's answer
is unclear and seems to read as an admission on this
point, Respondent established at the hearing that Re-
spondent's gross receipts for the fiscal year ending
August 31, 1982, had amounted to $337,623 and that its
annual gross receipts in the preceding year had been
only slightly higher, and Respondent argued that this
had to be considered independently of the gross receipts
CAPTAIN'S TABLE
of Musso 's, which had amounted to $1,099 ,841 for the
fiscal year ended October 31, 1981.
The factual issue is therefore squarely presented
whether the management of these enterprises is charac-
terized by the kind of centralized control of labor rela-
tions and other incidents of common or integrated oper-
ation that warrant consideration of the aggregate income
of both enterprises in determining whether jurisdictional
requisites have been met. The important factors are inter-
relation of operations , common management , centralized
control of labor relations , and common ownership.' Cen-
tralized control of labor relations has long been regarded
as the critical factor.2
Musso has operated Captain 's Table since 1 971 and
Musso's since 1977. The purchase of Musso 's was con-
summated by taking title in the name of Nagio Restau-
rant, Inc., the Respondent, which as part of the purchase
price assumed a security agreement covering the restau-
rant equipment . Subsequently , because his accountant
changed his mind about how the transaction should be
structured, Musso purchased all the stock of the owning
corporation , Musso's 860-2 Rest ., Inc. for $30 ,000 pay-
able by a series of notes over the course of several years.
Each restaurant has its own manager, who concerns
himself with the details of daily operation . Musso spends
his time at Musso 's. That restaurant receives its supplies
from overseas and from the Fulton Fish Market. It has
18 employees and is open Monday through Friday from
noon to 3 p . m. for lunch and from 5 to 11:20 p.m. for
dinner . On Saturday it is open for dinner only. Captain's
Table has had a complement of 12 employees since its in-
ception . It is closed on Monday instead of Sunday, and is
open from noon to 11 p . m. on the other six days of the
week . Musso 's accepts American Express , Visa, and
Master Charge credit cards , while Captain 's Table ac-
cepts Visa, Master Charge, and Diners Club. The bank
accounts , payrolls , insurance policies ,3 and liquor li-
censes are separate . The two salaried managers operate
independently of each other and there is no interchange
of personnel between the two restaurants . Each restau-
rant pays for its own deliveries.
Despite this superficial veneer of independence, how-
ever , it is apparent that Biagio Musso is the controlling
influence in the operation of each restaurant . He is the
sole stockholder of each corporation and he and his wife
are the sole directors and officers . The prescribed days
and hours of operation have never been varied by the
local managers . Musso testified that slight fluctuations in
the number of employees at Respondent 's restaurant
would be left to managerial discretion , since the manag-
ers hire and fire personnel , but any substantial change
would have to be cleared with him . At Musso's, the
manager and Musso jointly hire and fire employees and
determine the number needed. Mrs. Musso signs checks
for payment of bills of both restaurants from their sepa-
rate bank accounts One accountant services both corpo-
rations. A statement of joint control is incorporated in
' Radio Union Local 1264 v. Broadcast Service, 380 U S 255, 256 (1965)
2 Speedee 7-Eleven, 170 NLRB 1332, 1334 ( 1968), Atwood Leasing Corp,
227 NLRB 1668 , 1669 (1977)
8 There is no evidence whether they employ the same or different in-
surance brokers
25
the tax returns of both corporations pursuant to regula-
tions of the Internal Revenue Service.
Musso 's testimony left no doubt that he has complete
control of labor relations for both restaurants . The re-
spective managers have never participated in the negotia-
tion of collective -bargaining agreements covering the
restaurants ' employees ; this has been handled solely by
Musso . Musso entered into collective -bargaining agree-
ments with union locals that were predecessors of Local
6, and a subsequent agreement recognizing Local 6 as
the exclusive bargaining representative of Respondent's
employees after the merger of those unions into Local 6.
It was conceded that although the manager at Captain's
Table is not expressly required to do so, he does in fact
consult with Musso from time to time regarding the as-
signment of work to employees at that restaurant, work
hours of particular employees , and assignments to par-
ticular work stations . These are precisely the types of
matters that would normally be left to the sole discretion
of a manager on the spot. Musso also testified that he
personally decided to cut wages of employees at Cap-
tain 's Table because it had been losing money for 2 years
and that he personally explained the cut to the employ-
ees, citing wage scales in neighboring restaurants. In ad-
dition , Musso continued to draw $26 ,000 per annum as
chief executive officer , which I regard as considerably
weakening Musso 's contention that his role in the oper-
ation of the restaurant was almost nil.
I conclude from this evidence that Musso was inti-
mately involved in the management of Captain 's Table
notwithstanding the presence of a manager on the scene.
In addition , it is uncontroverted that ultimate authority
with respect to its management rested with Musso.
On the basis of the proven common ownership,
common financial control , common direct and ultimate
control of operations by Musso , and Musso 's admitted
control of labor relations for both restaurants , I find that
they constitute a single enterprise for jurisdictional pur-
poses and that their aggregate receipts bring them within
Board jurisdiction .4 I find that at all material tunes here,
Respondent has been an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that at all times material here the Union has
been a labor organization within the meaning of Section
2(5) of the Act.
The employees at Captain 's Table had been represent-
ed by two unions , with which Nagio Restaurant, Inc. en-
tered into collective -bargaining agreements . Local 22,
Chefs, Cooks, Cafeteria, Food, Beverage & Service Em-
ployees Union, AFL-CIO represented chefs, relief
cooks, and dishwashers employed by the restaurant.
Local 1, Restaurant Employees Union, affiliated with
Hotel and Restaurant Employees and Bartenders Interna-
tional Union , AFL-CIO represented employees in a unit
described as follows:
4 Swift Cleaners, 191 NLRB 597 ( 1971), Family Laundry, 121 NLRB
1619(1958)
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All captains, waitresses, waiters, busboys, bus-
girls, cashiers, floor walkers, hostesses, food check-
ers, dining room employees, employed at the restau-
rant, excluding all other employees, guards and su-
pervisors as defined in the Act.
Local 1 and Local 22 subsequently were merged into
Local 6. Local 6 filed an unfair labor practice charge
against the Respondent. On June 22, 1981, the proceed-
ing was settled by means of an agreement whereby Re-
spondent agreed to bargain with Local 6 on request as
the exclusive collective-bargaining representative "of our
employees with respect to their rates of pay, wages,
hours of employment and other terms and conditions of
employment." That agreement defines the appropriate
bargaining unit involved in this case, which in any event
would comprise the units defined in the earlier collec-
tive-bargaining agreements between the Respondent and
the two merged unions.
III. THE REFUSAL TO BARGAIN IN GOOD FAITH
A. History of Negotiations
Representatives of the Respondent and the Union met
for the purpose of negotiating a new collective-bargain-
ing agreement on four occasions, from August through
December 22, 1981. All the meetings were at the offices
of Respondent's attorney, Pinto. Darwin Lanyi, an ad-
ministrative aide employed by Local 6, arranged the
meeting of August 18, but it was attended by John F.
Leaver, an executive vice president of the Union. Leaver
met with Musso and Pinto for about 1 hour. He present-
ed them with a proposed standard form contract cover-
ing both kitchen and dining room personnel. This con-
tract had been drawn up by Local 6 with the object of
combining in the Local 6 contract features of the con-
tracts formerly used by Local 1 and Local 22. The con-
tract was thus a recodification of the terms of the Local
22 contract, covering kitchen workers, the Local 1 con-
tract covering waiters , and the Local 6 contract cover-
ing bartenders, but while it incorporated many provisions
of the earlier agreements , and sought renewal thereof,
the contract itself was not one that had been previously
seen or signed by Respondent.
There is no conflict in the testimony respecting this
first meeting. Leaver presented the contract as a propos-
al and orally stated a number of economic demands, that
Pinto wrote down: a $30 raise for kitchen employees and
a $10 raise for dining room employees for each year of
what was proposed as a 3-year contract , increases in wel-
fare and pension plan, bereavement pay, and vacation
and sick leave. No negotiations took place. Musso and
Pinto responded by saying that they thought the de-
mands were too high, and that they would review the
contract and get back to him. No date was set for the
next meeting.
Musso testified that, following this meeting, he met
with Pinto and they worked on counterproposals.
In late August or early September, Darwin Lanyi,
who had become responsible for further negotiations,
telephoned Pinto for a response to the proposals. He re-
ceived none and, despite his efforts to fix an early date
for negotiations, was unable to persuade Pinto to fix a
meeting date earlier than October 22. Pinto insisted that
that was the earliest date when both he and Musso could
be available.
Accordingly, the second meeting took place on Octo-
ber 22. Lanyi met with Pinto and Musso for almost 3
hours. According to Musso, Pinto communicated coun-
terproposals and presented management's position.
Musso testified that he advised Lanyi that he would con-
sider changes to the Union's proposals, by which I un-
derstand him to mean that he would give serious consid-
eration to them in modified form. Lanyi, however, pre-
sents a picture of a meeting characterized by unmitigated
recalcitrance on the part of Pinto and Musso. He quotes
Pinto as stating that the proposals were "far too expen-
sive" and depicts his review of the Union's standard con-
tract clauses as something akin to putting the pages
through a paper shredder: "and he just proceeded to
shatter it." Pinto made no economic counterproposals
and said nothing other than that the Union's proposals
were far too expensive and that Respondent's terms
"would be a step backwards." There would be no in-
creases in the pension and insurance contributions and
there would be a 25-percent reduction in wages. Most of
the meeting was spent going through the standard form
contract. Pinto wanted to eliminate most of the standard
clauses, which according to Lanyi were boilerplate that
had been carried over from the earlier agreements to
which Respondent had been a party. Pinto marked up a
copy of the agreement and also noted the changes he
wanted on a yellow pad. (The marked-up agreement and
the memorandum of changes are both in evidence.)
Lanyi testified that he explicitly asked for counterpro-
posals and was told by Pinto that Respondent was not
prepared to furnish counterproposals at that time. I have
noted that Musso testified that he had worked on coun-
terproposals with Pinto prior to the second meeting. It is
not apparent whether economic counterproposals were
included in their discussions, but Musso also testified that
by agreement with Lanyi negotiations respecting the
economic provisions were reserved for a later meeting,
and this was the reason why no economic proposals
were made by Respondent until the fourth meeting.
At the conclusion of the second meeting, it was agreed
that a third meeting would be held in November. Lanyi,
Pinto, and Musso met on November 17. According to
Lanyi, whose memory was fuzzy about this meeting, no
counterproposals were presented by the Respondent and
there was no progress, so they set a date for a December
meeting, which never came about. He recalled having
told Pinto that he had discussed the suggested changes in
the standard contract terms with his supervisor and "that
the changes he was proposing were, in the majority, out
of line. We were not going to delete all of the things that
he wanted out of the standard contract."
Lanyi then went on to testify that a further meeting
was scheduled for December 22. Pinto telephoned him,
however, either on that date in the morning or the day
before, and stated that Musso would not be available and
that Pinto would get back to him after the holidays.
Later, Lanyi changed his testimony and asserted that he
CAPTAIN'S TABLE
called Pinto on the morning of December 22 to let him
know he was on his way to the meeting , whereupon
Pinto said he was glad Lanyi called because Musso could
not make the meeting, and he could not set an alternate
date without conferring with Musso . He promised to
contact Lanyi after the holidays.
There were no subsequent meetings , according to
Lanyi, because the events of December 22, considered
with everything else, convinced him that Respondent
was dragging its feet . When Pinto failed to call by Janu-
ary 13, 1982, the charge was filed.
Musso testified that a fourth meeting had in fact taken
place on December 22 and had lasted for 2 hours. Musso
testified that at the third meeting, on November 17, "Mr.
Pinto was asking for certain conditions and Mr. Lanyi
did not come up with it." They agreed to meet further
on December 22 and in fact did so, from 2:30 to 4:30
p.m. The persons present at this last meeting were Lanyi,
Musso, Pinto , and Emil Bonati . Pinto made notes of the
meeting, which are in evidence . Musso asserted that
counterproposals were made , but his testimony makes it
clear that during the fourth meeting , apart from the sug-
gestion that the employees take a deep cut in pay, he had
no economic counterproposals in mind. He testified that
because the restaurant was losing money , he offered a
50-percent cut in pay , but that Pinto at the same time ac-
ceded to union demands regarding vacation , sick pay,
and holidays . He asserted that he was willing to have
further meetings , but he was waiting for the Union to
come up with a counteroffer to his proposal for sweep-
ing cuts in pay. It was apparent to me that Musso failed
to recognize that the burden of making a responsible
counterproposal respecting wages was on him , the Union
having presented its position on wages at the very first
meeting.
Lanyi's memory improved considerably after Musso
testified . He then testified that at the fourth meeting, on
December 22, he had set forth the union position that the
requested contract textual changes were unacceptable.
(Musso had testified that only economic terms had been
discussed and that there was no discussion of other
changes in the standard form contract.) Lanyi also testi-
fied that "we were still asking for a response to the wage
proposal that we had asked for and which we had not
gotten at the two previous meetings ." He cited rising
living costs . When it came time to set a date for a further
meeting , a date could not be set because Musso had med-
ical problems.
Unquestionably , Musso was compelled by medical
problems to spend the entire month of January 1982
away from work . He underwent surgery, which hospital-
ized him at the beginning of the month and required him
to recuperate at home for the last 3 weeks of January, by
which time the charge here had been filed.
I credit Lanyi's version of the events which transpired
at the final meeting , despite his memory lapse, and I do
not credit Musso's assertion that the Union agreed to
wait quiescently for a response to its economic demands
and to sit through several meetings watching Pinto tear
up the standard forms.
I also credit Lanyi's testimony that early in January he
telephoned Pinto, who promised to get back to him with
27
a date for resumption of negotiations . It is the type of
conversation that would logically take place under such
circumstances. The date when Musso would be physical-
ly capable of resuming negotiations was within Musso's
and Pinto's knowledge . They made no effort to suggest a
date although in September 1981, they had been able to
fix a meeting date 6 weeks ahead of time.
B. Analysis
The issue is whether in the circumstances of this par-
ticular case, the statutory obligation to bargain in good
faith has been met . 5 It has been observed that surface-
bargaining cases present problems of great complexity
and that no case can be a determinative precedent for an-
other: "It is the total picture shown by the factual evi-
dence that either supports the complaint or falls short of
the quantum of affirmative proof required by law."
In the present case, there was inordinate delay on the
part of the Respondent in coming to the bargaining table.
The meeting in August 1981 involved more than presen-
tation of the Union's demands. The Respondent's counsel
put off negotiations until the latter part of October with-
out adequate explanation of the need for such a lengthy
delay . Pinto 's statement that it was the first available
date both he and Musso could attend was no explanation
at all. Musso did not amplify it in his testimony and
Pinto did not appear at the hearing . There can be no ar-
gument about Respondent's obligation to meet with the
Union upon some reasonable timetable; that is, the statu-
tory mandate . Respondent's failure to do so is one of the
factors that may be considered with the totality of con-
duct to determine whether it was engaging in good-faith
bargaining as required by the Act.7
The delay continued at and after the second meeting.
The Union's form contract and economic demands,
whether acceptable to Respondent, have never been
claimed by Respondent to have been unreasonable or
outrageous, yet no response to the economic demands
was forthcoming until the fourth meeting , on December
22, 4 months after their original presentation to Respond-
ent. The process of excision of standard clauses carried
out during the second meeting was tantamount to whole-
sale expurgation of standard form provisions which in
many cases were nothing more than carryovers from ear-
lier collective-bargaining agreements to which Respond-
ent had been a party.
The Respondent conceded8 what is apparent from the
documentary evidence : that the Respondent sought
elimination of features that had existed in earlier agree-
ments with the separate union locals which had merged
into Local 6 and that did not in any manner impinge on
economic problems of the Respondent . Respondent of-
fered almost no justification for its sweeping attack on
the noneconomic provisions of the contract . Musso at-
5 NLRB v. Truitt Mfg. Co., 351 U S 149 (1956).
6 Borg-Warner Corp., 198 NLRB 726 (1972); Sweeney & Co., 176 NLRB
208, 211 (1969), modified but enfd. as to this point 437 F.2d 1127 (5th
Cir. 1971) (the quotation is from Borg-Warner)
7 Borg-Warner, above at 734
s The concession was made by counsel for Respondent during final ar-
gument.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tributed the idea of eliminating the union-security clause
to remarks made by the administrative law judge who
had been involved in settlement of the charge filed earli-
er by Local 6. Musso asserted that, not only was that
idea not original with him, but the Union had not found
it objectionable when suggested by the judge. Neverthe-
less, that would hardly be justification for the broad
attack on the other provisions or for assuming the justifi-
cation of the demand for elimination of the union-securi-
ty clause in the present circumstances.
Each party blames the other for the delay in negotiat-
ing the economic proposals, and each party seeks to cast
the onus on the other for producing counterproposals.
Lanyi testified that he kept pressing for an economic re-
sponse; Musso says it was understood that that would be
left for last. It may be argued that Lanyi's failure to
recall the December meeting should be regarded as a se-
rious qualification of his credibility, but I do not accept
it as such. I regard it, rather, as a true lapse which re-
quires that his testimony regarding some of the details of
the meetings be accepted only with great care . It does
not weigh half as much on me as does the impression, on
these facts, that much of the Respondent's preoccupation
with the form contract was a stall to avoid coming to
grips with the economic demands. That impression is re-
inforced both by the extreme nature of Respondent's ob-
jections to the standard form contract and by the spuri-
ous nature of the economic counterproposal,9 which
Musso admitted was made purely to compel the Union
to come forward with another proposal and did not at all
reflect what he was willing to negotiate. He waited for
the Union to negotiate against itself instead of making a
bona fide counterproposal.
Lack of good-faith bargaining is also indicated by Re-
spondent's advancement of an illegal proposal. The par-
ties at the hearing accepted it as a given proposition that
a 50-percent reduction would have brought the employ-
ees' wages below the legal minimum wage. Musso ex-
cused himself on the basis that he acted on advice of
Counsel but that does not explain why such a proposal
was made in the first place. He did not bring his attorney
in to explain it. This proposal is also indicative of lack of
good-faith bargaining when viewed from another stand-
point. An employer's insistence on making proposals to a
newly certified union , which are less than what the em-
ployees are currently receiving has been held to be, in
the proper overall context, failure to bargain.10 Thus,
the Respondent's argument that the contract presented to
it by the Union was an altogether new contract and not
a renewal is seen not to be helpful at all to the Respond-
ent. In any event, however, the same logic has been held
applicable to negotiations involving renewals, it being
held that one of the factors to be considered in determin-
ing whether an employer is bargaining in good faith is
whether its proposals would reduce the employees' exist-
ing working conditions or wages, an inference unfavor-
9 The nature of the employer's proposals may be taken into account in
assessing its motivation in collective-bargaining negotiations Sweeney,
above at 212, modified but enfd as to this point 437 F 2d 1127 (5th Cir
1971)
10 Dothan Eagle, 174 NLRB 804, 815 (1969), enfd. 434 F 2d 93 (5th
Cir 1970)
able to the employer being permissible if reductions are
something more than de minimis. "I
Consideration of all the circumstances of the present
case makes it apparent that the Respondent did not
simply adhere to a bargaining position that was unpalata-
ble to the Union but formulated and maintained a posi-
tion designed to stall negotiations, avoid reaching an
agreement , and undermine the position of the Union as
the representative of the Respondent's employees. Musso
and his attorney had to have known that their proposals,
economic and otherwise, would encounter serious resist-
ance from the Union.12 It is well settled that rigid adher-
ence to proposals of a type which are "predictably unac-
ceptable" to the Union may be considered with other
evidence "as evidencing a predetermination not to reach
agreement."13 The same is true of proposals advanced in
expectation of union rejection by an employer's negotia-
tor who is "well schooled in the realities of collective
bargaining." t 4 The Respondent, in effect, called on the
Union to abdicate its normal right to represent the em-
ployees effectively, t 5 and "a violation is made out when,
as here, the employer demands a contractual provision
which would exclude the labor organization from any ef-
fective means of participation in important decisions af-
fecting the terms and conditions of employment of its
members."16
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The violations of the Act herein found to have been
committed by the Respondent have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. 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 mean-
ing of Section 2(5) of the Act.
3. All employees of the Respondent except guards and
supervisors as defined in the Act constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
4. The Union is the exclusive representative of the em-
ployees in the aforesaid unit for the purpose of collective
' i Borg-Warner, above at 736
12 "It would be unreasonable to assume that Respondent's attitude
with respect to economic issues was taken without anticipating that com-
munication of its views to the Union would create anything other than
immediate stalemate " Sweeney & Co, above at fn.9
18 NLRB v. Herman Sausage Co. 275 F 2d 229 (5th Cir 1960), enfg.
122 NLRB 168 ( 1958), quoted in Borg-Warner, above at 727 See also
Sweeney & Co, above at 212, and Tomco Communications, 220 NLRB 636
(1975), enf denied 567 F 2d 871 (9th Cir 1978)
i4 Tomco Communications, above at 637
16 Failure to bargain is indicated by lack of movement because of ad-
herence to original position, adamant insistence on a bargaining position,
and failure to make meaningful concessions Id at 637, NLRB Y Cable
Vision, 660 F 2d I (1st Cir 1981), enfg 249 NLRB 412 (1980)
16 United Contractors (JMCO Trucking), 244 NLRB 72, 73 (1979)
(citing Tomco), enfd mem 108 LRRM 3152 (7th Cir 1980)
CAPTAIN'S TABLE
bargaining with respect to rates of pay, wages , hours of
employment, and other terms and conditions of employ-
ment.
5. Respondent violated Section 8(a)(5) and ( 1) of the
Act by failing and refusing to bargain collectively in
good faith with the Union with respect to rates of pay,
wages , hours of employment , and other terms and condi-
tions of employment.
6. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in an
unfair labor practice by reason of its refusal to bargain in
good faith with the Union with respect to rates of pay,
wages , hours of employment, and other terms and condi-
tions of employment, I shall recommend that Respondent
29
be required to cease and desist from such conduct and
that it be required, on request of the Union, to negotiate
with respect to such subject matters and, if an agreement
is reached, embody the same in a signed agreement.17
[Recommended Order omitted from publication.]
17 This is the relief requested by the General Counsel (G C Br. 12)
and suffices to effectuate the policies of the Act. I considered the propri-
ety of recommending backpay in view of the delay in bargaining com-
bined with actual implementation by Respondent of a 50 -percent reduc-
tion in wages , but concluded on the basis of evidence in the record that
such relief would not effectuate the purposes of the Act, might be injur-
ous to the interests of all parties , and would be better left to the discre-
tion of the parties in the course of the collective bargaining which is here
directed to proceed Such a remedy was invoked by the trial examiner in
Freeman Co., 194 NLRB 595 (1971), but the Board reversed his finding
that Sec . 8(ax5) had been violated . See Steelworkers Y. NLRB, 430 F.2d
519, 521 (D.C Cir. 1970), enfg . 178 NLRB 711 (1969), Royal Typewriter
Co. v NLRB, 533 F 2d 1030 (8th Cit. 1976), enfg . 209 NLRB 1006
(1974), Tiidee Products, 194 NLRB 1234 (1972); Southland Dodge, 232
NLRB 878 (1977).