Cattlemens

National Labor Relations Board - Board Decisions

Jul 10, 1972

198 N.L.R.B. 83 (N.L.R.B. 1972)

CATTLEMENS SADDLE AND SIRLOIN 83
Twin Falls Feeding Co ., Inc. d/b/a Cattlemens;
Winton Land and Cattle Co., Inc ., d/b/a Cattle-
mens Saddle and Sirloin and David Comb
Bartenders and Culinary Workers Union Local No.
770, Hotel and Restaurant Employees and Barten-
ders International Union, AFL-CIO and David
Comb. Cases 20-CA-6731 and 20-CB-2469
July 10, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On March 22, 1972, Trial Examiner George
Christensen issued the attached Decision in this
proceeding. Thereafter, the General Counsel, the
Respondent Employer, and the Charging Party filed
exceptions and supporting briefs. The Respondent
Union filed limited cross-exceptions and a beef in
support thereof and in support of the remainder of
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
Trial Examiner's rulings, findings,' and conclusions,
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint herein be dismissed in its entirety.
i We note the following inadvertent error in the Trial Examinees
Decision , which does not affect our conclusion herein- All references
pertaining to the testimony of Banks should properly refer to the testimony
as that of Reed
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN , Trial Examiner : On December 7,
8, and 9 , 1971, I conducted a hearing at Santa Rosa,
California to try issues raised by a consolidated complaint'
issued June 21, 1971, based upon (in both cases) charges
filed on May 5 , 1971 and amended charges filed on June 1,
198 NLRB No. 21
1971.2 The complaint alleges and the Company3 and the
Union4 deny that they latter) violated' Section ' 8(a)(1), (2)
and (3) and 8(b)(1) and (2) of the National Labor Relations
Act, as amended, by executing a collective- bargaining
agreement at a time the Union did not represent an
uncoerced majority of the employees covered thereby.
All parties appeared by counsel and were afforded full
opportunity to adduce evidence, examine and cross-exam-
ine witnesses , argue and file briefs. Briefs were filed by the
General Counsel, the Company and the Union.
Based upon his review of the entire record, observation
of the witnesses , perusal of the briefs and research, the
Trial Examiner enters the following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The commerce facts and the qualification at all pertinent
times of the Company as an employer engaged in
commerce in a business affecting commerce and the Union
as a labor organization within the meaning of Section 2(2),
(5), (6), and (7) of the Act are conceded by the parties and
the Trial Examiner so finds.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Contract
It is undisputed that on December 4, 1970,5 the
Company and the Union executed a contract wherein the
Company recognized the Union as the exclusive collective-
bargaining representative for "all the employees employed
by the Employer coming under the jurisdiction of the
Union." The contract contained a union shop provision,
provisions governing holidays, vacations, health and
welfare benefits and contributions, overtime, reporting
pay, rates of pay, grievances and arbitration, etc., and a
termination date of March 31, 1974, plus automatic rate
increases on April 1, 1971, April 1, 1972, and a wage
opener on April 1, 1973.
B. Contract Coverage and the Unit
The parties treated all employees classified as bartenders,
waiters, hostesses , cocktail waitresses , broiler cooks,
r Those portions of the complaint relating to Winton Land & Cattle Co,
Inc d/b/a Cattlemens Saddle and Sirloin at Santa Rosa, California, and
Local 770 were settled during the course of the hearing This Decision
therefore shall concern only those portions of the complaint relating to
Twin Falls Feeding Co, Inc, d/b/a Cattlemens at Petaluma , California,
and the Union's activities related thereto.
2 The Trial Examiner denied the Union's motion to dismiss the
complaint grounded on Comb's status as a management consultant and
stranger to the parties, with the implication Comb was "fronting" a
Company attempt to evade its obligations under the Company-Union
contract by filing the charges and amended charges almost six months after
the contract execution The Trial Examiner relied on the statutory language
permitting any person to file a charge, without regard to his motive therefor
3 Twin Falls Feeding Co, Inc d/b/a Cattlemens, hereafter called the
Company
4 Bartenders and Culinary Workers Union Local No 770 , Hotel and
Restaurant Employees and Bartenders International Union , AFL-CIO,
hereafter called the Union or Local 770
5 While one witness for the Company (Geary) contended that the
contract was signed on December 3, 1970, the General Counsel conceded
that the sequence of events supported the testimony of Union witnesses and
the Union 's contention that the contract was signed on December 4, 1970.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
miscellaneous kitchen help, saladman, bus boys, and
dishwashers as "employees . . . . under the jurisdiction of
the Union."
The Company listed 65 employees on its active payroll in
the foregoing classifications on December 3, 1970 (the day
before the contract was signed), namely:
Bartenders Bus Boys
Crosby Barber
Newton Carlsen
Verduzco Chism, B.
Chism, S.
Waiters Holloway, W.
Banks Jacobsen
Beaman Kula
Cary, D. Martinez
Conklin McCarthy
Giovannoli Pels
Hand Stock
Hansen Tegnell
Isaak Thurman
Leslie Wilson
Lomasson
Merkel Broiler Cooks
Reed
Van Zante Ballance
Weeks Brant
Gunheim
Hostesses Holloway, J.
Cary, K. Page
Fleming Riley
Fortune Rotnicki
Taverna Schweitzerhof
Cocktail
Wright
Waitresses Saladman
Cox Delmartini
Custer
Garrett Misc. Kitchen
Goldwater Dodd
Ielmorine Hogan
Mancini Johnson
Newton Mears
Simmons Oberg
Van Eijk Steiding
Webster
Wheelwright
Dishwashers
Beach
Brucker
Farris
The General Counsel and the Union agree that barten-
der Verduzco was not within the unit on December 4, 1970,
in view of undisputed evidence that Verduzco was
regularly employed at Cattlemens Saddle & Sirloin in
Santa Rosa, only worked 2 days at Cattlemens in
Petaluma, and worked the 2 days in question after
December 4, 1970.
The General Counsel and the Union also agree that
kitchen helper Dodd was not within the unit on the basis of
undisputed evidence that Dodd did not commence work
until December 8, 1970.
On the basis of the foregoing, the Trial Examiner finds
that Verduzco and Dodd were not within the unit on
December 4, 1970, reducing it to 63 employees.
The General Counsel contends that bartender Newton,
waiters Banks and Reed, and bus boy Stock were
supervisors on December 4, 1970, and should be excluded
from the unit.
The Union contends that on December 4, 1970, broiler
cooks Ballance and J. Holloway, dishwashers Beach,
Brucker, and Farris, and waiter Isaak were casual
employees; kitchen employee Steiding was a supervisory
employee; and kitchen employee Hogan and cocktail
waitress Webster were not employees of the Company. On
those grounds, the Union seeks to exclude those employees
from the unit.
The issues raised by these contentions shall be resolved
below.
1. Steiding
Company President Gillham and Assistant Manager
Vanderford testified that Steiding was a salaried employee
in charge of the kitchen. Gillham stated that his duties
were to prepare cooked vegetables and salads and to keep
the kitchen area neat and clean and that Steiding did not
prepare meat other than placing it on skewers for beef-ka-
bob orders. Steiding's name was listed by the Company
under the classification of miscellaneous kitchen employee.
All other employees so classified other than Steiding were
paid an hourly rate. While Gillham stated that Steiding did
not direct the work of the other miscellaneous kitchen
employees, it is apparent from the size of the business
operations and work force that Steiding alone did not
prepare all the salads and vegetables, prepare all beef-ka-
bob orders, and clean the kitchen area, so it is reasonable
to infer that Steiding led and directed the other miscellane-
ous kitchen employees in the performance of those duties.
On the basis of the foregoing, the Examiner finds and
concludes that Steiding was a working leader of the
miscellaneous kitchen employees properly includable
within the unit.
2. Webster and Hogan
The payroll records of the Company show that Webster,
a cocktail waitress, drew pay from the Company in the
August 15 to 31, 1970 payroll period, drew no pay between
September 1, 1970 and January 15, 1971, and again drew
' ay in the January 15 to 31, 1971 payroll period. Assistant
Manager Vanderford testified that Webster was removed
from the payroll in August of 1970 at her own request.
Vanderford further testified that while Webster indicated
that she wanted to come back at some future time, there
was no definite date or time agreed upon, and Webster was
1
CATFLEMENS SADDLE AND SIRLOIN 85
informed that when she wanted to return, the Company
would let her come back if there was an opening available at
that time.
From the above, it is clear that Webster voluntarily left
the Company's employ in August of 1970 without
expectation of future employment unless at some indefinite
future date she chose to apply for employment and the
Company had a vacancy in its cocktail waitress classifica-
tion.
On the basis of the foregoing, the Examiner finds and
concludes that Webster was not an employee of the
Company on December 4, 1970 and therefore is excluded
from the unit, reducing the unit to 62 employees.
Hogan worked as a miscellaneous kitchen employee
during the November 15 to 30, 1970 payroll period, he did
not work between December 1, 1970 to January 14, 1971,
and again worked during the January 15 to 31, 1971
payroll period. Vanderford testified that Hogan did not
work between December 1, 1970 and January 14, 1971
because he did not want to work during that period and
was not needed.
There was no understanding that Hogan would only be
reemployed after November 30, 1970 upon request if a
vacancy existed in the miscellaneous kitchen employee
classification and his nonworking period was of brief
duration.
On the basis of the foregoing, the Examiner finds and
concludes that Hogan was an employee of the Company in
a classification within the unit on December 4, 1970.
1
3. Ballance, J. Holloway, Beach, Bruckner, Farris,
and Isaak
Broiler cook Ballance worked 13-3/4 hours during the
December 1 to 15, 1970 payroll period and commensurate
hours immediately before and thereafter.
Broiler cook J. Holloway worked 10-3/4 hours during
the December 1 to 15, 1970 payroll period, and commensu-
rate hours immediately before and thereafter.
Dishwasher Beach worked 19-1/2 hours during the
December 1 to 15, 1970 payroll period, many more hours
immediately before and fewer hours immediately there-
after.
Dishwasher Brucker worked 17-3/4 hours during the
December 1 to 15, 1970 payroll period, many more hours
immediately- before and fewer hours immediately there-
after.
Dishwasher Faros worked 8 hours during the December
1 to 15, 1970 payroll period and a greater number of hours
both immediately before and thereafter.
Waiter Isaak worked 12-1/4 hours during the December
1 to 15, 1970 payroll period and a few hours more
immediately before and thereafter. None of the six
employees just named were on regular work schedules.
All six were college students at all times pertinent to this
proceeding, as were most of the Company's employees.
Only 10 of the 62 employees remaining in the unit
(according to the Examiner's findings entered heretofore)
were nonstudents,6 and only 4 of these 10 were on regular
work schedules.7 Thus the scheduling of hours for 58 of the
62 employees remaining in the unit were flexible and
adjusted to student needs and those of the restaurant.8
It was stipulated that none of these six employees signed
union authorization cards prior to December 4, 1970.
Other employees within the 62 remaining within the unit,
on whose behalf the Union submitted authorization cards
purporting to be signed on or immediately prior to
December 4, 1970, also worked hours commensurate with
those of these six,9 the Union, however, did not seek their
elimination from the unit as "casual" employees. It is
further noted that the Union did not refrain from
accepting initiation fees and dues from Ballance and
Isaak.io
In the judgment of the Examiner these six employees,
and others similarly situated, worked a sufficient number
of hours during times pertinent to this proceeding in unit
classifications to qualify as employees within the unit on
December 4, 1970. The Trial Examiner therefore finds and
concludes that Ballance, J. Holloway, Beach, Brucker,
Faros, and Isaak were employees within the unit on
December 4, 1970.
4. Newton, Banks, Reed, and Stock
In a list prepared by the Company from its payroll
records of employees within the unit on December 3, 1970,
the Company listed Newton among the bartenders, Banks
and Reed among the waiters, and Stock among the bus
boys. Assistant Manager Vanderford stated that only
Newton, of the four, was a full-time, regularly scheduled"
employee.
The Company raised no question concerning the
exclusion of any of the four at the time the Union sought
recognition as their exclusive collective-bargaining repre-
sentative on December 4, 1970 and all four were included
within the unit covered by the contract.12 All four signed
union membership applications and submitted them to the
Union on December 3, 1970. It is undisputed that as of the
crucial date (December 4, 1970) all four spent all but a
small portion of their time performing the work of their
respective classifications.
Company President Gillham termed Newton his "bar
manager." Banks testified, however, that Newton was not
so-called by the employees. Newton was not listed under
that title in Company records. Gillham also testified that
only Newton and Greenwell, the Company's manager as of
December 4, 1970, ' had the authority to order liquor.
Gillham further testified that Newton directed the work of
the other bartenders, had authority to recommend their
hiring and firing, and set up their work schedules. His
6 Hostesses K. Cary and Fortune, miscellaneous kitchen employees
Hogan, Johnson , Mears , and Steiding, cocktail waitresses Cox and
Goldwater, broiler cook Wright, and bartender Newton.
7 Newton, Johnson, Mears, and Steiding
8 The restaurant 's business vaned from day to day and week to week,
with the heaviest volume on weekends and around holidays
9 See, for example, the hours worked by bus boy S Chism and waiter
Giovannoh
10 The record does not disclose whether such fees and dues were
accepted from the other four.
ii Vanderford defined a regularly scheduled employee as one who was
scheduled to work the same shift , hours, and days from week to week
12 Nor did the Company seek to exclude Steiding , who was in charge of
the kitchen , or the "head cocktail waitress" mentioned by Gillham in the
course of his testimony.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony was not corroborated by Vanderford or by
Banks, and neither Newton nor Crosby testified. Gillham
could not cite any instances wherein Newton had exercised
his alleged powers to recommend a hire or fire. As of
December 3, 1970 there was only one other bartender
listed in the employ of the Company, Crosby. Gillham also
stated that Newton decided when to close the bar (mainly
because the manager, Greenwell, and the assistant manag-
er, Vanderford, usually left when the dining room closed,
while the bar remained open to a later time).13 Newton was
paid $2 more per shift than the other bartender.
Gillham again was the sole witness to alleged supervisory
duties performed by Reed, Banks, and Stock; neither Reed
nor Stock was called, Banks' testimony was limited almost
entirely to his organizational activities on behalf of the
Union, and Vanderford limited her testimony to payroll
information concerning the three and corroboration (on
cross-examination by the Union) of Gillham's testimony
that the three spent all but a small portion of their time
performing the duties of their classifications (waiting on
table, cleaning tables).
While Gillham termed Reed and Banks as "headwaiters"
and Stock as "head bus boy," Company records reflect
that on December 3, 1970 they were carried under the title
of waiter and bus boy.
Gillham further testified that all three prepared the work
schedules of the employees in their respective classifica-
tions, including days off,14 had the power to recommend
that the employees in their classifications be hired or
fired,15 and that Banks and Reed assigned the waiters to
stations and decided when to open and close waiter
stations. It is undisputed that Reed and Banks, a former
employee of another restaurant operated by Gillham and
his associates at Redondo Beach , California, were paid $20
per month over the rate of pay they received as waiters,
while Stock was paid 25 cents per hour more than the other
bus boys.
The Board has held in prior decisions that the power to
order supplies, such as Newton's coextensive power with
the manager to order liquor, is a routine responsibility not
calling for the exercise of such independent judgment as to
qualify the employee with such power as a supervisor
under the Act.16 The discretion to close the bar after the
manager and assistant manager left for the day falls in the
same category, as does the power of Banks and Reed to
assign waiter stations and open and close them.17 The work
scheduling assignment likewise appears routine, not involv-
ing independent judgment of the type contemplated by
Section 2(11) of the Act.18 As to the alleged power of the
13 The restaurant at times pertinent only opened for dinner ; the dining
room was open from 5 p in. to 10 p in. on weekdays, 5 p in. to I 1 p.m on
Fridays and Saturdays, and 4 p.m. to 10 p.m on Sundays The bar opened
at the same starting times but normally did not close until patronage
dwindled away, normally a few hours after the close of the dining room.
14 The scheduling consisted of consulting employees within the two
classifications concerning their class schedules , study needs , and availabili-
ty, submitting that information to Vanderford, and her preparation and
posting of work schedules based on that and other information secured by
or supplied to her for successive 2-week periods
15 The record fails to establish that Banks, Reed, and Stock were
informed of their alleged power to recommend the hiring or firing of
employees, that other employees were so informed , or that the three ever
made any such recommendations Gillham's testimony that Stock dis-
charged several bus boys is discredited in view of his vagueness, inability to
four supposed supervisors to recommend hiring and firing,
in view of the fact there is no record evidence that either
the four employees or the employees they allegedly
supervised knew of the existence thereof and the absence
of any credible evidence of its exercise, the Examiner
discredits the testimony of its existence and finds and
concludes that such power and exercise was limited to the
manager and assistant manager of the restaurant. In the
absence of any detail evidence, the Examiner finds and
concludes that any leading and directing of the work of
similarly classified employees by Newton, Banks, Reed,
and Stock was of a routine nature normally performed by a
working leader, as in the case of Steiding. The extra pay
enjoyed by Newton, Banks, Reed, Stock, and Steiding is
readily attributable to the extra routine responsibilities
assigned to them and their superior experience and ability.
Based upon the foregoing, the Trial Examiner finds and
concludes that Newton, Banks , Reed, and Stock did not
possess or exercise sufficient independent judgment in the
performance of their job duties to qualify as supervisors
within the meaning of Section 2(11) of the Act, and are
therefore included within the unit as of December 4, 1970.
The Examiner therefore finally finds and concludes that
on December 4, 1970 the unit consisted of the 62
employees named and classified in the preceding portion of
this Decision, excluding Dodd, Verduzco, and Webster.
C. The Union Majority
The Company's employees initiated the Union' s organi-
zation campaign, by appointment of a committee from
among their number to contact the Union and set up a
meeting. The requested meeting was held on December 3,
1970, at which time a substantial number of union
membership applications were executed by Company
employees within the unit. An undetermined number of
additional union membership applications were secured by
Banks and Reed 19 during the rest of that day and the
following morning and delivered to the union office.
In the course of the proceeding the Union submitted into
evidence membership applications purporting to be signed
by the following employees within the unit: Bartenders
Crosby and Newton; broiler cooks Brant, Page, Schweit-
zerhof, and Wright; bus boys Barber, Carlsen, B. Chism, S.
Chism, W. Holloway, Jacobsen, Kula, McCarthy, Stock,
and Tegnell; saladman Delmartini; hostess K. Cary;
cocktail waitresses Custer, Mancini, K. Newton, Van Eijk,
and Wheelwright; and waiters Banks , Beaman , D. Cary,
supply any details, reference to Vanderford as the one with such knowledge,
and Vanderford's failure to supply any corroboration or detail.
16 Food Store Employees Union Local 347 [Heck's Inc.] v. N LRB, 418
F 2d 1177 (C.A 9), enfg. in part 170 NLRB 178; Eckerd's Markets, Inc, 183
NLRB No. 40
17 Don the Beachcomber, 163 NLRB 275.
is Cf Plastic Workers Union Local 18 [Smko Manufacturing and Tool
Company] v N LR.B, 369 F.2d 226 (C.A. 7), enfg. in part 149 NLRB 201
19 In view of the Trial Examiner's finding that Banks and Reed were not
supervisors on or about December 3 and 4, 1970, he finds it unnecessary to
resolve the General Counsel' s contention that the Union's majority was
"coerced" due to the role Banks and Reed played in seeking out the Union,
delivering blank applications to employees , and executing applications to
the Union
CATTLEMENS SADDLE AND SIRLOIN
Giovannoli, Hand, Hansen, Leslie, Lomasson, Merkel,
Reed, and Van Zante, a total of 34.
Representatives of the Union and Banks testified the
submitted applications were those secured from and
executed by the Company employees whose names appear
thereon either at the December 3, 1970 meeting and
handed to its representatives in attendance there or, by the
following day, handed to Reed or Banks and delivered by
the latter to the Union. These same applications or copies
thereof were submitted to the General Counsel' s investiga-
tor during the course of his investigation of the charge. The
General Counsel, the Charging Party, and the Company
did not challenge the authenticity of the applications at
any time during the course of the hearing.
The Union takes the position that the General Counsel
has the burden of establishing a prima facie case that the
Union did not represent a majority of the Company's
employees within the unit at the time it asserted its
majority representative status, offered to prove same, and
sought and secured recognition as their exclusive collec-
tive-bargaining representative and a contract covering their
rates of pay, wages, hours, and working conditions, as
alleged in the complaint,20 and that the General Counsel
failed to meet that burden in this case.
The Union is correct; not only did the General Counsel
fail to produce evidence to support the complaint allega-
tion that the Union did not represent a majority of the unit
employees on December 4, 1970 but also the Respondent
Union and Company affirmatively and without contradic-
tion produced prima facie and unrebutted proof that, on
December 4, 1970, the Union's secretary-treasurer, Miss
Riley, took the 34 applications secured from the Compa-
ny's unit employees to a meeting with Gillham, the
Company's president, and asserted that the Union repre-
sented a majority of the Company's employees on the basis
of those applications, which representation the Company
president accepted, commenting that the Union's securing
of the applications "shot him out of the saddle" with
regard to any claim the Union did not represent a majority
of the Company's employees within the unit,21 and the two
20 Cf Adam Goettl & Gust Goeid, d/b/a International Metal Products Co,
104 NLRB 1076, especially In 4 at 1078
21 Gillham declined the Union's offer to check the applications,
explaining that he intended to let a couple of employees go and didn't want
to expose himself to the charge that he let them go after and because he saw
they were union adherents
87
thereupon executed the contract recognizing the Union as
the exclusive collective-bargaining representative of the
unit employees.
On the basis of the foregoing, the Trial Examiner finds
and concludes: (1) the General Counsel failed to produce
any proof that the Union did not represent a majority of
the employees in the unit at the time the Company and the
Union signed a contract covering them, and (2) the Union
and the Company presented prima facie and unrebutted
proof that the Union represented a majority of the unit
employees at the time the contract was signed; i.e., 34 of
the 62 employees within the unit.
In view of the foregoing findings and conclusions, the
Trial Examiner shall recommend that the complaint be
dismissed in its entirety.
CONCLUSIONS OF LAW
1. At all times pertinent the Company was an employer
engaged in commerce in an industry affecting commerce
and the Union was a labor organization within the
meaning of Section 2(2), (5), (6), and (7) of the Act.
2. The General Counsel failed to meet his burden of
producing prima facie evidence supporting the complaint
allegation that the Union did not represent a majority of
the Company's employees within a unit covered by a
contract executed by the Union and the Company on
December 4, 1970 at the time they executed said contract.
3. The Company did not violate Section 8(a)(1), (2),
and (3) of the Act by executing the aforesaid contract.
4. The Union did not violate Section 8 (b)(1) and (2) of
the Act by executing the aforesaid contract.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, the Examiner issues the following
recommended: 22
ORDER
The complaint shall be dismissed in its entirety.
22 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, recommendations, and recommended Order herein shall, as
provided in Sec. 102 48 of the Rules and Regulations , be adopted by the
Board and become its findings, conclusions, and Order , and all objections
thereto shall be deemed waived for all purposes.