Chambertin Restaurant

National Labor Relations Board - Board Decisions

Jun 22, 1970

183 N.L.R.B. 857 (N.L.R.B. 1970)

CHAMBERTIN RESTAURANT
Chambertin , Inc. d/b/a Chambertin Restaurant and
Detroit Local Joint Executive Board , Hotel &
Restaurant Employees and Bartenders Interna-
tional Union , AFL-CIO. Case 7-CA-7122
June 22, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN , AND JENKINS
On February 9, 1970, Trial Examiner Thomas S.
Wilson issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint, and recommended the dismissal of these
allegations. Thereafter, Respondent filed excep-
tions to the Trial Examiner's Decision and a brief in
support thereof. In addition, Respondent filed with
the Board a motion to reopen the record, and a
supplement thereto, and the General Counsel and
the Charging Party filed statements in opposition to
Respondent's motion and supplement.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision and the entire record in
this case, including Respondent's exceptions 'and
brief, its motion to reopen the record and the state-
ments of the General Counsel and the Charging
Party in opposition thereto, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Chambertin, Inc. d/b/a
Chambertin Restaurant, Dearborn, Michigan, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recom-
mended Order.
857
' Respondent has moved to reopen the record for the purpose of in-
troducing into evidence certain exhibits purporting to show that Respon-
dent has, since the hearing in this proceeding , established and put into ef-
fect the private carrier pension plan it had earlier proposed in bargaining
negotiations with the Union , and that this plan has been accepted by the
United States Internal Revenue Service as a qualified pension plan
Respondent contends that such evidence is material to the issues here
because the Trial Examiner 's Decision is premised on the supposition that
Respondent 's proposed pension plan did not and would not exist While we
agree that the Trial Examiner characterized Respondent 's proposed pen-
sion plan as one which was unlikely to ever be enacted , he specifically
found that Respondent engaged in bad-faith bargaining by conditioning
agreement on a collective -bargaining contract upon the Union's ac-
ceptance of a private carrier pension plan which was yet to be formulated
In our opinion , none of the evidence proffered by Respondent bears upon
the Trial Examiner 's essential finding Accordingly , Respondent 's motion
to reopen the record is hereby denied and the exhibits proffered by
Respondent are hereby rejected on the ground that they are not relevant to
the determination of the issues before us
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner: Upon a
charge duly filed on January 17, 1969, and a first
amended charge duly filed on June 30, 1969, by
Detroit Local Joint Executive Board, Hotel &
Restaurant Employees and Bartenders International
Union, AFL-CIO, herein referred to as the Union
or Charging Party, the General Counsel of the Na-
tional Labor Relations Board, herein referred to as
the General Counsel' and the Board, respectively,
by the Regional Director for Region 7, Detroit,
Michigan, issued its complaint dated June 5, 1969,
an amendment to the complaint dated June 20,
1969, and a letter of "probable" amendment dated
August 21, 1969,2 against Chambertin, Inc. d/b/a
Chambertin Restaurant, herein referred to as the
Respondent.
' This term specifically includes the attorney appearing for the General
Counsel at the hearing
2 This "probable" amendment was in fact made, and allowed without ob-
jection, orally at the hearing
Thus the pleadings in the instant case consisted of a complaint of 10
pages, a separate document entitled "Amendment to the Complaint" of 3
pages, and another separate document in letter form of-probable" amend-
ment of 2 pages In addition Respondent answered the complaint in one
document, answered the amendment to the complaint in another docu-
ment, and orally admitted in general the "probable" amendment made at
the hearing
At the time of the admission of these multitudinous pleadings this Trial
Examiner rather forcefully suggested to the General Counsel that his su-
periors should be informed that it would be better practice to consolidate
all such amendments in one single document for the convenience of all
parties concerned This is a crusade this Trial Examiner has been carrying
on for many years, throughout the various regions, universally without suc-
cess to date
The instant hearing, however, proved this Trial Examiner's point, which
is why the matter is here mentioned
At transcript page 432 on the fourth day of this hearing General Counsel
objected to evidence being produced by Respondent's counsel on the
grounds that the evidence was not relevant to any issue in the case At
transcript page 434. when Respondent's counsel had called attention to
paragraph 16 (h) of the "probable" letter amendment of August 21,
General Counsel had to withdraw his objection because the issue had been
raised by that amendment
If all these amendments had been consolidated in one single document,
as good practice dictates, this unfortunate episode would not have oc-
curred Q E D
183 NLRB No. 80
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint with its various amendments al-
leged that Respondent had engaged in and was en-
gaging in various unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1)
and (5) and 2(6) and (7) of the Labor Manage-
ment Relations Act, 1947, as amended, herein
referred to as the Act.
Respondent duly filed answers admitting certain
allegations of the complaint with its amendments
but denying the commission of any unfair labor
practices.
Pursuant to notice a hearing thereon was held be-
fore me in Detroit, Michigan, on September 8-11,
1969. All parties appeared at the hearing, were
represented by counsel, and were afforded full op-
portunity to be heard, to produce and cross-ex-
amine witnesses, and to introduce evidence materi-
al and pertinent to the issues. At the conclusion of
the hearing oral argument was waived. On
November 24, 1966, a brief was received from the
attorney for the Charging Party specifically adopt-
ing and approving all "positions advanced" by
General Counsel. General Counsel filed no brief.3
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and
I therefore find: Chambertin, Inc. d/b/a Chambertin
Restaurant is, and has been at all times material
herein, a corporation duly organized under, and ex-
isting by virtue of, the laws of the State of
Michigan. At all times material herein Respondent
has maintained its only office and place of business
at 22900 Michigan Avenue in the city of Dearborn,
and State of Michigan, herein called the Restau-
rant. Respondent is, and has been at all times
material herein, engaged in the business of a restau-
rant purveying food and drink. In the course and
conduct of its business operations during the fiscal
year ending October,l, 1968, the Respondent had a
gross revenue in excess of $500,000, and purchased
and caused to be transported and delivered at its
Dearborn, Michigan, restaurant food, liquors, and
other goods and materials valued in excess of
$100,000, of which goods and materials valued in
excess of $50,000 were transported and delivered
to its restaurant in Dearborn, Michigan, directly
from points located outside the State of Michigan.
Accordingly I find that Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
9 This brings up another of this Trial Examiner's foibles It is my firm
conviction that, if the Regional Office considers a case of sufficient im-
portance to warrant a 4-day hearing, that case is important enough to
require the filing of a brief, particularly when a brief is requested and par-
ticularly in a case such as this with its numerous unusual factual and legal
issues Lacking a brief, the case is only half tried
II. THE LABOR ORGANIZATION INVOLVED
Detroit Local Joint Executive Board , Hotel &
Restaurant Employees and Bartenders International
Union , AFL-CIO, is a labor organization admitting
to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Prologue
The instant case has a 5-year history.
Respondent began its restaurant operations in the
latter part of 1964.
One of Respondent's first acts was to "invite,"
the word used by Respondent President Constan-
tine G. Kokas, the Union in to represent Respon-
dent's still unemployed staff of employees.
As a result of this "invitation," on November 1,
1964, Respondent and the Union entered into the
standard union area agreement, with a few unim-
portant variations, for a period of 2 years covering
all Respondent's employees. This contract pro-
vided, inter alia, (1) recognition of the Union as the
exclusive representative of Respondent's em-
ployees, (2) a union shop and checkoff of dues, (3)
employer contributions to the union health and
welfare fund as well as to the union pension fund
without contributions from the employees, (4) a 5-
day workweek with wages at time and a half for any
work performed on the sixth day and double time
for the seventh day,' and (5) a 1-dollar bonus for
waitresses working split shifts.5 In addition the con-
tract provided that no settlement or compromise of
claims "for back wages, overtime, or other
benefits" should be binding unless approved in
writing by authorized representatives of the Union.
As at the time of the execution of the contract
Respondent had, according to Respondent, em-
ployed few, if any, of its employees; the description
contained in Respondent's brief of this as being "an
entire sweetheart arrangement" appears justified.
According to Kokas, the parties operated under
this "sweetheart arrangement" without a single de-
mand, grievance, or trouble of any sort for at least
2 years at which time the contract automatically
renewed by its terms for an additional year to
November 1, 1967.
This long period of "labor peace" came to an
abrupt end with the filing of the following
grievances dated May 29, 1967, by the Union:
' One specific exception in this contract was that bartenders could work
a 6-day week without premium pay
' A waitress works a "split shift" when she has two periods of duty
separated by a nonworking period of time The I-dollar bonus provided for
in the contract is supposed to cover her transportation cost required by her
free time
CHAMBERTIN RESTAURANT
re: Grievance and request for information
Gentlemen:
I am submitting herewith a grievance on behalf
of waitresses and former waitresses, in the bar-
gaining unit at your establishment. I am
prepared to meet at your earliest convenience
to discuss and settle this grievance.
Pending such meeting, I respectfully request
that you provide me with the following infor-
mation for the period from November 1, 1964
to date:
1. The dates of all private parties and
banquets and the number of guests at
each.
2. The names of all waitresses, present
and former, serving at private parties and
banquets.
3. The total number of hours worked by
each waitress, present and former, at such
private parties and banquets.
4. The total payment made by each group
of guests for such private parties and
banquets.
5. The retail value or cost to guests for
liquor served at each private party and/or
banquet.
6. The total wage, per private party or
banquet, paid to each waitress, present
and former.
I further request that this information be
furnished as soon as possible in a form con-
venient for you.
This information is required by the Union to
process the enclosed grievance intelligently, to
police and administer its collective bargaining
agreement , and to engage in intelligent collec-
tive bargaining.
This request is not intended to be inclusive,
and the Union reserves the right to amend this
request or make further requests for informa-
tion as the situation may require.
This record indicates that, without having given
the Union access to its books and records as
requested, Respondent on June 29, July 26, and
October 13 and 19, 1967, made certain partial of-
fers of settlement of the grievance based upon
Respondent's estimates of the amounts due and
owing to certain waitresses. Without having access
to Respondent's books and records the Union was
unable to accept or reject such offers.
By letter dated September 10, 1967, the Union
made demand on Respondent that it immediately
6 At the hearing Kokas was able to give the name of only one such em-
ployee At that time this employee was either a supervisor or about to
become one
859
discharge certain named employees for nonpay-
ment of initiation fees and dues as required by the
union-security clause of the existing contract. On
September 23, 1967, Respondent paid the initiation
fees and dues for 27 named employees. Respon-
dent's covering letter contained the following state-
ment:
The balance of the employees on your list are
presently members [of the Union], who have
been paying dues, or no longer employed at
Chambertin Restaurant.
At or about this time the Union filed charges
against Respondent in Cases 7-CA-6077 and 6427.
With the then collective-bargaining agreement
about to expire on November 1 the Respondent on
October 31, 1967, addressed a letter to all its em-
ployees which contained the following paragraphs.
As you know, our contract with the union
expires next Tuesday night. Because I have a
good faith doubt that a majority of my em-
ployees desire to be represented by a union, I
have refused to bargain with the union about a
new contract. My doubts arose on account of the
decertification petition filed by employees.
Because of the termination of the contract
next Tuesday, some changes will be necessary.
In the first place, we will no longer check off
union dues and it will no longer be necessary
for an employee to be a member of the union
in order to work here. Of course, any em-
ployee who desires to remain a member of the
union, has the legal right to do so.
Since there will be no contract with the
union beginning November 1, it has become
necessary for us to arrange for another in-
surance contract for you so that your insurance
coverage will continue. We have purchased a
group policy from the New England Life In-
surance Company, which will be come effec-
tive on November 1, 1967. That policy provides
hospital, life and sickness and accident benefits
which are as identical as possible with the
benefits under the union plan.
Let me explain one thing about the in-
surance. I know from the statements some em-
ployees have made at our meetings that many
employees would prefer to have Blue Cross-
Blue Shield Medical Insurance.6 Because elec-
tion petitions have been filed with the Labor
Board , it is illegal for me to either change the
insurance coverage or to promise you in-
creased insurance if you vote against a union.
In the event you elect to keep the union, I will
give sympathetic consideration to your desires
regarding insurance in my dealings with the
union, just as I would give sympathetic con-
sideration to your desires in my dealings with
you if you elect not to have a union.
Just as the law does not permit me to
promise you improved benefits, it does not
require me to penalize you on account of
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either the end of the union contract or the
petitions that have been filed with the Board.
Let me assure you that you will suffer no
decrease in wages or other benefits during the
period before the election when there is no
union . Let me further assure you that if you
elect not to have a union, you will suffer no
decrease in wages or benefits afterwards.
I have been telling you for many months that
I will neither threaten you or promise you
benefits in order to persuade you to vote the
union out . Since employees first filed a petition
with the Board , I have done everything I can to
promote an early secret ballot election. During
this same period, the union has done
everything it could to avoid an election. I want
you to know that I will continue to fight for your
right to freely and secretly determine whether or
not you want the Union . [ Emphasis supplied.]7
The collective -bargaining agreement expired as
expected on November 1, 1967. Thereafter
Respondent discontinued making contributions to
the union pension and health and welfare funds.
On March 2 , 1968, the Union placed a picket
line around Respondent 's establishment.
On the day before the picket line began Kokas
held two meetings with his employees at which he
told them he understood the Union would begin a
picket line and assured them that the existence of
this picket line would give the employees the op-
portunity to express their desires for or against the
Union , that by coming to work through the picket
line the employees would express their desire not to
be represented by the Union, and therefore he
urged them to come to work through the picket
line.
On the following day, when the picket line was in
existence, Kokas was busy on the telephone urging
Respondent's employees to come to work through
the picket line and thus express their desire not to
be represented by the Union. Other Respondent of-
ficials were busy picking up and driving employees
to work . According to Respondent 's count, as
testified to by Kokas , only three employees of the
Respondent honored the picket line so business
went on as usual and has continued to do so even
though the restaurant is still picketed.
Cases 7-CA-6077 and 6427 against Respondent
were settled by the parties on April 16, 1968. This
settlement was approved in a Decision and Order of
the Board dated May 14 , 1968, and subsequently
enforced by a consent decree of the Circuit Court
of Appeals for the Sixth Circuit . The pertinent parts
of the Board's Decision and Order thus issued and
enforced were as follows:
ORDER
Upon the basis of the above findings of fact,
the Settlement Stipulation , and the entire
record in the case, and pursuant to Section
10(c) of the National Labor Relations Act, as
amended , the National Labor Relations Board
hereby orders that:
The Respondent , Chambertin , Inc., d/b/a
Chambertin Restaurant , its officers, agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Taking an active role in the initia-
tion and sponsoring of a petition for the
withdrawal of union shop authority of the
Detroit Local Joint Executive Board,
Hotel & Restaurant Employees and Bar-
tenders International Union , AFL-CIO.
(b) Circulating , soliciting support for,
or obtaining signatures on, a petition for
decertification of the Detroit Local Joint
Executive Board, Hotel & Restaurant Em-
ployees and Bartenders International
Union , AFL-CIO, or for withdrawal of
union shop authority of the Detroit Local
Joint Executive Board , Hotel & Restau-
rant Employees and Bartenders Interna-
tional Union , AFL-CIO.
* * * *
(e) Terminating unilaterally or without
prior notice to, or consultation with, the
Detroit Local Joint Executive Board,
Hotel & Restaurant Employees and 'bar-
tenders International Union, AFL-CIO;
the contractual health and welfare in-
surance program and/or contributions to
the employee pension fund or unilaterally
instituting a new group insurance program
with a different insurer to provide
hospital, life, sickness, or accident
benefits.
*
2. Take the following affirmative action
which the Board finds will effectuate the poli-
cies of the National Labor Relations Act, as
amended:
(a) Upon request, bargain collectively
with the Detroit Local Joint Executive
Board, Hotel & Restaurant Employees and
Bartenders International Union,
AFL-CIO , as the exclusive collective-bar-
gaining representative of all employees
employed at the Dearborn, Michigan,
' It is to be noted that this letter makes no reference to a pension plan
CHAMBERTIN RESTAURANT
restaurant of the Respondent , excluding
office clerical employees , guards,
manager , assistant manager , dining room
supervisors and other supervisors as
defined in the Act , with respect to any
proposed changes in group insurance or
the method of adjusting grievances, and
concerning wages , hours , and any other
term or condition of employment.
(b) Make , on behalf of its employees,
the necessary contributions to the health
and welfare insurance and pension funds
for the reinstatement of the employees' in-
surance and/or pension coverages
thereunder.
(c) Make whole employees for any loss
of insurance and/or pension benefit they
may have suffered as a result of the ter-
mination of payments to the health and
welfare insurance and pension funds.
Pursuant to this settlement Respondent and the
Union commenced a new round of meetings for the
purpose of negotiating a new collective-bargaining
agreement . These meetings began on May 2, 1968,
when the Union presented Respondent with a copy
of its regular 1968 area form agreement and Robert
G. Corrigan for the Union explained the new provi-
sions contained therein which differed from the
1964 form contract to Kokas and Respondent's at-
torney . This was followed with other sessions
between these individuals held on May 10 and 20
and June 4 and 17 , 1968. During this series of
meetings Respondent made its own demands clear
and definite . These demands consisted of: (1) an
open shop ; ( 2) its own health and welfare insurance
with a private carrier in lieu of the union insurance
plan; (3 ) its own pension plan handled by private
carriers in lieu of the union pension plan; (4) a
voluntary 6-day workweek for waitresses with no
premium pay for work on the sixth day; and (5) the
elimination of the split -shift bonus of $1.8
In the spring of 1968 at or about the time of the
settlement agreement in Cases 7-CA-6077 and
6427, Respondent decided to , and did, make
available to the Union all Respondent 's books and
records which it then said were all it had in its pos-
session and could locate . The books and records,
however , for 1964 and 1965 were not produced,
presumably because they could not be located.
After studying the books and records thus made
available for a period of approximately 10 weeks,
Union Business Agent Krantz produced a com-
prehensive report which purported to show the
total backpay shortages for waitresses to amount to
$10,319.72 for the years 1966 and 1967 . A copy of
the Krantz report was handed to Respondent
which , in turn , demanded from the Union the
original records from which Krantz had made her
861
findings . Respondent was supplied with the original
worksheets by Krantz . Thereafter the Krantz report
became a subject in the negotiations then under
way between Respondent and the Union.
Although , as found above , the parties began
meeting together over the problems involved on
May 2 , 1968, as a result of the settlement agree-
ment, Respondent as early as June 25 , 1968, wrote
the Union in pertinent part as follows:
This will confirm our telephone conversation
of June 24 , 1968. You advised that the Union
position regarding the various items in dispute,
including Union security , pension and in-
surance is unchanged, but that the Union is
willing to continue to bargain with the Com-
pany . I advised that the Company indeed is
willing to continue to meet and negotiate with
you in an effort to persuade you to accept the
Company's position.
I advised you that this week the Company is
seeking a preliminary actuarial analysis regard-
ing its offer for a pension severance plan and
that as soon as that analysis is made , I will con-
tact you to arrange a meeting at which I hope
to persuade you that such a plan is ad-
vantageous from the viewpoint of our em-
ployees.
In view of your position , I advised you that
there appeared to be no break in the impasse
reached in our negotiations and that, ac-
cordingly , the Company will implement its final
offer effective July 1, 1968 . This implementa-
tion will include both the economic and non-
economic aspects of our offer . That offer, as
explained yesterday , will include the back
funding of our pension obligations under the
Union pension plan through July 1, 1968. It
will also include the reinstatement of Union in-
surance effective July 1, 1968 and the discon-
tinuance of such insurance on August 1, 1968
at which time the Company 's final offer re-
garding insurance would be implemented. This
arrangement regarding insurance is made pur-
suant to Paragraph 2(b) of our Settlement
Stipulation . I reiterate my remarks made to
you during our conversation that we are willing
to meet with you for the purpose of collective
bargaining at such times as you feel such
meetings might be useful , and that during our
discussion you suggested that we not meet until
I had the pension data available. As I in-
dicated , your suggestion in this regard is ac-
ceptable . [ Emphasis supplied. ]
The threatened implementation of Respondent's
"final offer" was not carried out at this time for
reasons not explained at the hearing.
On July 3, 1968 , Respondent received the ac-
tuarial report from Wyatt Company, which
" For reasons which will become clear I do not deem it necessary to un-
duly prolong this Decision by making findings as to the events occurring at
each and every meeting between the parties
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
describes itself in its letterhead as "Actuaries and
Employee Benefit Consultants ." This letter from
the Wyatt Company, known in this hearing as the
Wyatt Report, was as follows:
July 3, 1968
Mr. Robert Rosenfeld
2961 Guardian Building
Detroit, Michigan 48226
RE: CHAMBERTIN, INC.
Dear Bob:
This is to confirm to you the information given
over the phone July 3. A 40-cent per day per
employee contribution on the part of Cham-
bertin could establish a pension and severance
program with the following key provisions:
1. Vesting would occur after 5 years of ser-
vice.
2. The severance benefit would be $80.00 per
year of service limited to a maximum of 20
years of credit. Thus, after 5 years, $400 in
cash could be paid to a terminating employee,
and an additional $80.00 for each year of ser-
vice beyond 5 years.
3. Instead of a severance payment a vested
employee would be entitled to an alternative
deferred pension benefit payable at age 65 on
the basis of $2.00 a month for each year of ser-
vice credit , also to a maximum of 20 years of
credit.
4. All past service with Chambertin would be
counted . However , no service prior to working
for Chambertin would be counted regardless of
union affiliation.
Since the employees at Chambertin do not as yet
have more than 4 years of service with the
restaurant , the 20 year maximum would have
no effect for the next 16 years.
We calculated these costs using a high turnover
assumption which in effect is equivalent to an
annual rate of about 13 % to 14%, which means
approximately 100% turnover in 6 or 7 years.
If further information is desired, please contact
me. [Emphasis supplied.)
Respondent gave the Union a copy of this Wyatt
Report.
This 4-year history is merely history or prologue
to the case at hand . Under the Act no unfair labor
practices may be found from the facts herein stated
although such history is admissible for the purpose
of interpreting subsequent events.
2. Facts subsequent to July 17, 1968
So the matter stood in July 1968 with Respon-
dent still contributing to the Union 's health and
welfare and pension plans when Union Attorney
Gregory on July 5 joined Corrigan in further talks
with Kokas and Respondent 's attorney , Rosenfeld.
By this time all parts of the Union 's proposed con-
tract , including the recognition of the Union as the
bargaining agent for the employees in the ap-
propriate unit , had been agreed on except for the
following areas:
(1) Union security . Here Respondent insisted on
an open shop whereas the Union insisted on some
form of union security . Respondent rejected
anything but the open shop.
(2) Insurance . Here Respondent announced that
it was willing to pay the same per hour amount as
under the union contract but insisted on its own in-
surance plan with a private carrier instead of con-
tributing to the union industrywide plan. Although
the Union preferred its own plan , it was agreeable
to a private carrier plan if the benefits thereunder
were equal to or better than the union plan.
(3) Pension plan. Here again Respondent said it
was willing to pay the same amount per employee
as it would have under the union industrywide pen-
sion plan but insisted on its own plan covering only
its own employees with a private carrier . Again the
Union was willing to accept the private carrier plan
provided the benefits equalled or bettered the
union plan.
(4) The 6 -day workweek . Respondent insisted
on a 6-day workweek without premium pay for the
sixth day but was willing to make the sixth day of
work optional with the employee . The Union
wanted premium pay for the sixth day.
(5) Waitresses ' pay. Respondent wanted to raise
waitresses ' pay from the $ 1 per hour under the
1964 contract. Accordingly, Respondent offered
$1.125 per hour for the first year of a 2-year collec-
tive agreement and $1.15 for the second year. The
Union was asking for $1.25.
(6) Split-shift bonus. Respondent was insisting
on the elimination of the $1 bonus for waitresses
working split shifts whereas the Union insisted on
the retention of that bonus subject , of course, to a
final wage package agreement.
Further discussions on these areas of this agree-
ment were held by and between the above-named
individuals on July 23, September 10, and
November 5, 1968 . Additional meetings were held
in January, February, and May 1969, at the last of
which , upon being informed that Respondent's
position had not changed in any regard , Attorney
Gregory stated that they were "wasting their time"
and with Corrigan walked out of the meeting.
There was also considerable correspondence
exchanged between the attorneys.
Under date of August 20, 1968, the Union
detailed for Respondent 's benefit some six areas in
which the pension plan suggested by the Wyatt Re-
CHAMBERTIN RESTAURANT 863
port would be inferior to the Union's industrywide
pension plan. The Union's main criticism of the
Wyatt Report plan as expressed in the letter and
orally, was the fact that Respondent's plan con-
tained no "portability" feature; i.e., the employee
earned credits only while employed at Respon-
dent's restaurant but earned no credits thereunder
if and when employed elsewhere in the industry.
Under the union pension plan an employee earned
credits while working in any restaurant whose
owner contributed to the plan.
During the numerous personal meetings above
mentioned Respondent kept insisting on an open
shop for the reason that Kokas had what he called a
"good faith doubt" as to the Union's majority status
based, after the settlement agreement, allegedly
upon the fact that, according to Respondent's cal-
culations, only three of its employees had been
honoring the union picket line established on
March 2, 1968.
So allegedly because of this "good faith" doubt
as to the Union's status, Respondent filed RM peti-
tions with the Regional Office seeking representa-
tion elections among its employees on September 4
and October 29, 1968, and again on January 7,
1969, all of which were dismissed by the Regional
Office.9
As noted, Respondent insisted throughout these
meetings on having its own insurance and pension
plans covering its own employees only and handled
by a private carrier. Although preferring its own in-
dustrywide plans, the Union agreed that such
private plans with private carriers would be ac-
ceptable to it if the benefits thereunder were equal
to or better than the union plans. Respondent
produced the July 3, 1968, letter from the Wyatt
Company to Respondent's attorney stating what
benefits "could" be available from private carriers,
from an actuarial point of view, with the same pay-
ments per employee per day as were made to the
union plan. The Union continued to point out the
defects listed in its August 20, 1968, letter in any
such proposed plan and particularly stressed the
lack of "portability." Furthermore Respondent
never produced any such plan for the Union's
perusal for a comparison of benefits throughout
these meetings.
In fact, according to the testimony of Kokas, the
only possible implementation of the Wyatt Report
at any time was a " casual " telephone call, Kokas'
description, to a Detroit bank concerning a possible
meeting with one of its trust officers, which call was
made, according to his testimony, approximately 6
weeks before the September 1969 hearing. Also, in
answering a leading question by his attorney, Kokas
at least implied that Respondent had made pay-
ments to a pension escrow fund only a few weeks
prior to the hearing but subsequently corrected this
implication by testifying that no such escrow fund
had been set up and no money segregated for such
purpose, although adding that there was sufficient
money in Respondent's general business bank ac-
count to cover such payments.
Hence, although requested to do so, Respondent
never furnished the Union any concrete pension
plan which could be compared as to benefits with
the union pension plan. Nor did Respondent ever
provide the Union with a concrete insurance pro-
gram to be compared with the union insurance
plan.
On one occasion at a meeting on September 10,
1968, Rosenfeld for Respondent "indicated" the
possibility of a wage rate for waitresses of $1.15 on
a 2-year contract provided the split-shift bonus
were eliminated. Respondent's only firm wage offer
for waitresses was $1.125 for the first year and
$1.15 for the second year of a 2-year contract. This
was unacceptable to the Union if the $1 split-shift
bonus were also eliminated. The Union was waiting
for a better wage package before eliminating the
split-shift bonus.
In addition Respondent and the Union also
talked during these rather numerous meetings
about the possible methods of settling the grievance
filed on May 29, 1967, as previously found. When
Respondent originally supplied the Union with the
data requested concerning this grievance, the
records for the years 1964-65 were missing and,
according to Respondent, could not be located.
The Krantz report purporting to show some
$10,000 unpaid back wages to waitresses was com-
piled without that requested data. Respondent
made a number of offers of partial settlement of
this grievance which the Union refused to accept,
the Respondent's and the Union's theories and esti-
mates as to the amount due and owing being con-
siderably apart. However, Respondent's offers
acknowledged that some thousands of dollars were
due and owing due to previous underpayments in
1967-68.
On January 17, 1969, the Union filed its original
charge in the instant matter.
Suddenly by letter dated February 12, 1969,
Respondent offered to make available to the Union
"any and all employment payroll records and
banquet records in our possession for the period
November 1, 1964" to date. This of course in-
cluded some, if not all, of the 1964-65 records
which theretofore had been reported as missing.
The fact was that these missing 1964-65 records
had been uncovered by a field examiner of the Na-
tional Labor Relations Board while investigating a
charge separate and distinct from that involved in
the instant case. So far as this record shows
Respondent's offer of February 12, 1969, has never
been accepted by the Union. Nor have the parties
ever agreed on the amount of unpaid back wages
due.
e Previously Respondent had filed similar petitions with similar results on
August 31, 1967, and March 4, 1968
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under date of May 21, 1969, Respondent wrote
the Union as follows:
Re: Chambertin, Inc.
Gentlemen:
We have requested and have agreed to par-
ticipate in a collective bargaining session with
you next Thursday morning at 10:30 a.m. at
the offices of the Michigan Labor Mediation
Board . As you know, we have met with your
union for the purpose of negotiating an agree-
ment regarding employees of Chambertin, Inc.
represented by your union whenever requested
to do so by you, and on several occasions,
requested such meetings on our own initiative.
Notwithstanding the several meetings held
between us in the last few months, we have
been unable to reach agreement with you con-
cerning the terms and conditions of a new con-
tract. At our last meeting we reiterated our
position, and it was not acceptable to you.
We take this opportunity to again restate our
position and to make to you, with regard to
those issues about which we are not yet in
agreement, a final offer. With regard to those
issues, that offer is as follows:
1. Union Security: Employer proposes an
open shop.
2. Pension and Insurance Benefit: Employer
proposes an employer plan which will spend
the same amount of money as involved in the
union pension and insurance proposal. How-
ever, the employer' will request the employee
who is not already covered under an insurance
plan to make a contribution to such plan. See 5
below. It should be noted that there may be a
difference in types and coverage of benefits
provided between the two plans, however, the
employer feels that his plan will be equal if not
superior to the union 's proposed plan.
3. Shift Proposal: Employer proposes to
guarantee each employee who works the lunch
hour 3-1/2 hours of employment and for each
employee who works the dinner hour a guaran-
tee of 4 hours of employment. The only time
when such guarantee would not be in effect is
when the employee himself requested to leave
early.
4. Work Week Overtime: Employer
proposes a five day work week. If an employee
is requested to work a sixth day, the employee
will have the option to decline such assign-
ment. However, if the employee agrees to work
the sixth day, the sixth day shall be paid at his
straight time hourly rate.
5. Wage Rate: Employer proposes a $1.15
wage rate during the term of the agreement,
such term to be two years. It should be noted
that in connection with the insurance benefit,
No. 2 above , that an additional nickel in wages
will be given to those employees who are al-
ready covered under an insurance plan and for
those employees who are not so covered, this
additional nickel will then serve as part of the
contribution.
Unless we are able to reach agreement with
you at our meeting on next Thursday10 and
thereby break the long standing impasse between
us with regard to these issues , we shall put into
effect effective June 1 , 1969 , our final offer
relating both to these issues and to the other is-
sues about which we have already reached
agreement, except that absent an agreement
we cannot and will not unilaterally implement
our proposals for a grievance procedure in-
cluding arbitration of otherwise unresolved
disputes.
We have also negotiated with you regarding
certain grievances filed by you about two years
ago. On the basis of the information presently
available to us, our offer for settlement con-
cerning employee grievances remains the same
as was presented to you before . However, we
agreed that prior to next Thursday 's meeting to
submit to you in writing a detailed statement
listing employee and the amount he would
receive and the formula used to determine
such amount.
Absent agreement with regard to these
amounts next Thursday, we shall pay these
amounts to the named employees on or about
June 1 , 1969. Further accumulation of
amounts due them for the period beyond June
1, 1969 is foreclosed by reason of the changes
in wages, hours, and working conditions
beyond June 1 , making your grievances inap-
plicable with respect to the period beginning
June 1 , 1969. [Emphasis supplied.]
Under date of June 3 , 1969, Respondent again
wrote the Union in pertinent part as follows:
Gentlemen:
Mr. Zameck and I, representing Chambertin,
Inc., entered our negotiating session with you
regarding Chamberlin , Inc. last Thursday fully
prepared to discuss the issues between us in a
further effort to persuade you to accept our point
of view on those very few issues still in dispute.
Your response , you will recall , to our position
being as indicated in our letter to you dated
May 21 was , " We are wasting our time",
whereupon your attorney, Mr. Gregory, im-
mediately left the room followed by Mr. Cor-
rigan.
Your refusal to continue to bargain with re-
gard to the issues between us is further evidence
of the existence of an impasse in our bargaining
10 Apparently May 29, 1969
CHAMBERTIN RESTAURANT 865
and as well as your rejection of the offer con-
tained in our letter of May 21.
We are , accordingly , implementing that offer
effective June 1 , 1969. We shall pay to your
union 's pension fund payments which accrue
through May 31 , 1969 in the manner in which
we have made pension payments in the past.
We initiated discussions with Michigan
Hospital Service/Michigan Medical Service
looking towards their hospital/medical in-
surance for our employees last Thursday after-
noon after 'your rejection of our offer .- We then
learned it was not possible for the group to be
covered by their insurance until July 1, 1969.
We intend , therefore , to continue to pay
monthly premiums to your union 's insurance
program through the period ending June 30,
1969 in the usual manner . My understanding is
we have just recently received and paid the in-
surance billing for the month of April, 1969.
We are required , therefore , to wait until July 1,
1969 to implement our offer with regard to in-
surance. This delay , you will recognize, is
somewhat similar to the delay about a year ago
in reinstating your union 's insurance.
We are , meanwhile , prepared to meet with
you or your representatives for the purpose of
collective bargaining . [Emphasis supplied.]
On June 1 , 1969, Respondent implemented the
threat contained in the May 21 and June 3, 1969,
letters, except that Respondent continued to pay its
contributions to the union insurance fund until Au-
gust 1 , 1969, because its discussions with Blue
Cross-Blue Shield had been instituted at such a late
date as to make coverage by Blue Cross -Blue Shield
impossible for the months of June and July. Con-
tributions to the insurance fund ended August 1.
Contributions to the Union 's pension fund had
ended June 1 despite the fact that to the date of the
hearing Respondent had not implemented the
Wyatt Report with any pension plan. Waitresses
were paid $ 1.15 per hour . The split-shift bonus was
eliminated . In addition Respondent gave checks
dated June 25, 1969 , to certain employees allegedly
in settlement of that employee 's claim for back
wages under the grievance of May 29, 1967,
without notice to or approval of the Union. The
amounts paid , with one possible exception , were for
sums less than the Krantz report indicated was due
the employee . At the hearing the Respondent
produced certain other checks dated June 25,
1969, for similar settlements which Respondent
claimed could not be delivered because the address
of the payee was not available to Respondent.
B. Conclusions
If I may be pardoned a personal remark, I do be-
lieve that the instant case is possibly the most
unsympathetic one-as regards all parties and in all
areas-which this Trial Examiner has ever had the
misfortune to hear.
To begin with this case stems from an apparently
illegal "sweetheart arrangement ," neither litigable
nor litigated here for obvious sound legal reasons,
which was initiated and masterminded by Respon-
dent in 1964 but which was also acquiesced in and
consented to by the Union , to wit , the execution of
the 1964 collective -bargaining agreement by and
between Respondent and the Union purporting to
establish the wages , hours, and working conditions
for a period of 2 years for Respondent 's still unem-
ployed staff of employees who necessarily had not
then selected the Union as the bargaining agent nor
was consulted in regard to the contractual terms
agreed on . This was the original sin from which all
others flowed . It is not a happy beginning.
For a period of nearly 3 years thereafter the
"labor peace " thus arranged for in the absence of
the employees apparently proved eminently
satisfactory to both parties thereto . Respondent
operated its restaurant with not too scrupulous re-
gard to the terms and conditions contained in the
executed agreement and the Union did not seem to
care.
Respondent was happy and so apparently was the
Union.
However on May 29 , 1967, this serenity was sud-
denly and rudely shattered when the Union filed its
grievance to the effect that Respondent had failed
to pay , or underpaid , its employees from the very
beginning of this deal the wages provided for in the
executed contract . From the thousands of dollars
which the Respondent has offered in settlement of
this grievance , even though amounting to a con-
siderable lesser amount than has been claimed to
be due by the Union , it is apparent both that there
was substance to the Union 's grievance and that
these under payments , intentional or otherwise,
were substantial . The exact amount of the moneys
involved has never been definitely ascertained to
date because originally Respondent made offers of
settlements without allowing the Union any ex-
amination of its books and records and then sub-
sequently in the summer of 1968 , when Respondent
did grant access to the books and records "in the
possession " of Respondent , the records for the
years 1964-65 allegedly could not be located. As of
that time admittedly , as contended by General
Counsel , Respondent had failed to produce the
records and data requested by the Union for the in-
telligent prosecution of the grievance. However, on
February 12, 1969 , after the 1964-65 records had
been uncovered by pure chance by a Board field
examiner while investigating a completely different
charge against Respondent , Respondent offered in-
spection of these records to the Union for the
completion of its investigation of the grievance. It is
undisputed in this record that the Union then failed
to avail itself of the offer.
One of General Counsel 's contentions in the
refusal to bargain complaint here is that Respon-
dent has failed to produce all the books , records,
and data requested by the Union . It is all too clear
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent's production of the requested
material was at least painfully slow. In fact the ac-
cidental discovery of the missing 1964-65 records
by a field examiner would seem to indicate that
Respondent's original search for its own records
was neither painstaking, thorough, or
wholehearted. But the fact remains that, although
the Union did not take advantage of Respondent's
offer, Respondent did in fact finally offer on
February 12, 1969, the Union access to the thereto-
fore missing 1964-65 data. There is no showing
here that, although belated, Respondent's final
offer of the 1964-65 business books and records
did not complete the books and records requested
by the Union back in 1967. We would know better
if the Union had taken advantage of the 1969 offer.
Consequently, despite the undue delay, I will have
to hold, contrary to the claim of the General Coun-
sel, that Respondent did not refuse to supply the
Union with the requested books and records and
thus did not violate Section 8(a)(5) in this regard.
The previous peaceful coexistence at the restau-
rant was not only shattered by the May 29, 1967,
grievance but also by reason of the fact that the
Union filed other charges against Respondent with
the Board which developed into Cases 7-CA-6077
and 6427. In April 1968 these cases were voluntari-
ly settled by the parties and a consent decree by the
United States Court of Appeals for the Sixth Circuit
was entered enforcing the Board's Order dated May
14, 1968, based upon the settlement against
Respondent which , inter alia , affirmatively ordered
that Respondent:
2. Take the following affirmative action
which the Board finds will effectuate the poli-
cies of the National Labor Relations Act, as
amended:
(a) Upon request, bargain collectively
with the Detroit Local Joint Executive
Board, Hotel & Restaurant Employees and
Bartenders International Union,
AFL-CIO, as the exclusive collective-bar-
gaining representative of all employees
employed at the Dearborn, Michigan,
restaurant of the Respondent , excluding
office clerical employees, guards,
manager, assistant manager , dining room
supervisors and other supervisors as
defined in the Act, with respect to any
proposed changes in group insurance or
the method of adjusting grievances, and
concerning wages, hours, and any other
term or condition of employment.
The settlement agreement of the parties, the
Board Order and this consent decree effectively
eliminated not only the question of the appropriate
unit but also the question of the Union's majority
" It may be of passing interest here that, subsequent to the Board's deci-
sion finding a new and separate refusal to bargain, the Board not only
brought a contempt of court case based on the same evidence as presented
before me but also won that case. See N.L.R B. v Satilla Rural Electric
representation therein from the instant case.
In addition this decree raises a fundamental
question as to whether the allegations of the
present complaint create a new and separate refusal
to bargain violation of Section 8(a)(5) or, more ap-
propriately, constitute a case of contempt of the
aforementioned court decree.
It appears that the Board has answered the above
perplexing question in its decision in Satilla Rural
Electric Membership Corporation, 155 NLRB 747.
The Satilla case is very similar to the case at bar in
that the Circuit Court of Appeals for Fifth Circuit
had enforced a Board Order in a prior Board
proceeding requiring Satilla to bargain with the
recognized bargaining agent. When within 1 year
from the date of the entry of the court's decree en-
forcing the Board's Order, Satilla again questioned
the union's majority status, the General Counsel as
here issued a new refusal to bargain complaint
against Satilla. After a hearing this Trial Examiner
dismissed the complaint against Satilla largely on
the ground that the fact that respondent had again
questioned the union's majority status within the 1-
year period of the entry of the decree constituted a
matter of contempt of court rather than a new and
separate refusal to bargain. The Board, however,
experienced no difficulty in reversing that decision
of this Trial Examiner and finding a new and
separate refusal to bargain violation on the facts
presented. Thus under Board law a respondent can
commit a new refusal to bargain violation despite
the existence of a court decree ordering that
respondent to bargain. That being the existing
Board law this Trial Examiner must, and hereby
does, find in accord therewith."
In its pleadings and in the testimony of Kokas,
Respondent claimed that at all times material
herein (1) Respondent had a "good-faith doubt"
as to the Union's majority status; but at the same
time (2) Respondent bargained in good faith with
that same Union.
By making the first contention Respondent de-
nies the representative status of the Union while
with the second Respondent admits that representa-
tive status. In short the two contentions are mu-
tually exclusive. One or the other can exist but not
both at the same time. The "good-faith" element of
one contention would eliminate the "good faith" of
the other. Thus it seems to be appropriate to deter-
mine which contention was dominant in Respon-
dent's mind.
It is quite clear that very soon after the filing of
the May 27, 1967, grievance Respondent began to
indicate its doubt of the representative capacity of
the Union. On August 31, 1967, a decertification
petition was filed. According to Kokas, it was the
filing of such decertification petitions by employees
Membership Corporation, 393 F 2d 134 (C.A 5) Therefore it appears that
the Board has concurrent remedies available to it in a situation like the
present
CHAMBERTIN RESTAURANT 867
which originally created Respondent's "good-faith"
doubt,12 this despite the manner in which the 1964
agreement was executed. The alleged doubt con-
tinued thereafter, however, but at that time, ac-
cording to Kokas, was based on the fact that, ac-
cording to his count, only three employees out of
Respondent's staff of 100-105 employees honored
the picket line established by the Union on March
2, 1968. Supposedly because of this continuing
doubt, Respondent filed an RM petition seeking an
election among its employees on March 4, 1968, 2
days after the establishment of the picket line.13
Respondent continued to express this doubt as to
the Union's representative status by filing other RM
petitions for elections on September 4 and! October
29, 1968, and finally on January 7, 1969. Under
these facts there is no question but that Respon-
dent's doubt as to the Union's majority status con-
tinued to persist even after Respondent agreed in
the settlement of Cases 7-CA-6077 and 6427, to
bargain with the same Union over the bargainable
issues here involved.
The inconsistency of agreeing to bargain with the
Union as the. exclusive representative of its em-
ployees while at the same time filing RM petitions
for elections did not faze Respondent. It managed
to flit from one horn of the dilemma to the other
with the greatest of ease. In this regard Respon-
dent's only consistency has been its inconsistency.
However under the facts here it has to be said that
Respondent's alleged doubt of the majority status
of the Union has persisted throughout the whole
period of this case. Kokas first expressed his deter-
mination to secure an election for his employees in
his letter to them dated October 31, 1967, and that
determination persisted throughout, as he said it
would, until his final filing of a petition for election
on January 7, 1969.
In his testimony Kokas candidly admitted that he
personally had "deprived" his employees of the op-
portunity of expressing their desires for or against
union representation by executing the contract
recognizing the Union on November 1, 1964. His
sudden desire for an election came into being soon
after the May 29, 1967, grievance. He explained
this sudden change of heart after May 29, 1967,
and his determination thereafter to secure an op-
portunity for such employee expression by testify-
ing that his "morals improved" after November 1,
1964. Be that as it may, the fact remains that
Kokas' "improved morals" just happened to coin-
cide exactly with Respondent's newly acquired
determination to eliminate the Union and the union
contract just as his previously unimproved morals
had also just happened to coincide exactly with his
determination to arrange a sweetheart deal on
November 1, 1964. His "morals" varied with his
own aims and objectives.
Having thus determined that Respondent did
have a doubt as to the representative capacity of
the Union, whether a "good faith" doubt or not,
throughout this period, consideration must now be
given to Respondent's claim that it bargained "in
good faith" with the Union as the exclusive
representative of those employees from on and
after July 17, 1968, despite the other doubt.
It must be acknowledged that on many occasions
Respondent sat down and discussed all bargainable
issues with the Union. In fact agreement on all the
terms of a contract was quickly arrived at except in
the following areas: union security, insurance plan,
pension plan, split-shift bonus, the 6-day workweek,
and the wages of the waitresses.
Respondent began these so-called negotiations
demanding an open shop, its own insurance plan
and its own pension plan with private carriers at the
exact same monetary cost to Respondent as the
eliminated union plans would have cost, the
elimination of the split-shift bonus which was one
of the bases for the Union's May 29, 1967,
grievance, a sixth day of work to be optional with
the employee but to be paid for at the regular wage
rate. Respondent, recognizing the business necessi-
ty for an increase in waitresses' wages, offered
$1.125 per hour for the first year and $1.15 for the
second year, whereas the Union was demanding
$1.25 per hour. When the bargaining ceased in
1969, Respondent's positions in each of these areas
remained exactly the same as when negotiations
began. The same was true in regard to Respon-
dent's offers to settle the May 29, 1967, grievance.
Respondent had moved not one iota.
Respondent's letter of June 3, 1969, set forth
Respondent's idea of bargaining "in good faith"
quite accurately in the following statement:
Mr. Zameck and I, representing Chambertin,
Inc., entered our negotiating session with you
regarding Chambertin, Inc. last Thursday fully
prepared to discuss the issues between us in a
further effort to persuade you to accept our point
of view on those very few issues still in dispute.
Your response, you will recall, to our position
being as indicated in our letter to you dated
May 21 was, "We are wasting our time,"
whereupon your attorney, Mr. Gregory, im-
mediately left the room followed by Mr. Cor-
rigan. [Emphasis supplied.]
Thus Respondent's view of good-faith bargaining
was succinctly expressed as Respondent's attempt
"to persuade you to accept our point of view on
those few issues still in dispute." Respondent's
definition so expressed makes good-faith bargaining
definitely a one-way street: "You accept our terms
and we may have an agreement." It is clear beyond
a peradventure of a doubt that acceptance of
Respondent's terms constituted a condition
11 It is to be noted that in the settlement agreement of April-May 1968
Respondent agreed to cease initiating and sponsoring or aiding and
abetting the filing of such petitions
13 These representation filings, being prior to July 17, 1968, cannot be
considered as unfair labor practices here
427-258 O-LT - 74 - 56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
precedent to arriving at any collective-bargaining
agreement. Without union acceptance of Respon-
dent's demands, there would be no contract. This
hardly qualifies as bargaining "in good faith." But it
was the way Respondent bargained here.
Respondent's conditions had been carefully
selected. Respondent's demands as to the open
shop and as to the economic issues each were con-
siderably less favorable for the Union and for the
employees than had been provided for in the 1964
agreement. In 1968 the acceptance by a union of
retrogressive terms was hardly to be anticipated.
Although Respondent said it wanted to increase the
wages of the waitresses, at the same time Respon-
dent's other conditions would have effectively
reduced any such wage increase by eliminating
overtime for the sixth day and the split-shift bonus.
The elimination of union security also reduced the
effectiveness of the Union as the representative of
the employees as well as being a further amplifica-
tion of its "good faith doubt" theory. Each of these
terms was retrogressive from what the Union and
the employees already had. Acceptance by the
Union of any of all of such terms, particularly in the
year of 1968, would have effectively denigrated the
Union as their bargaining agent in the eyes of
Respondent's employees. These terms appear to
have been selected for this purpose by Respondent.
Perhaps Respondent's adamant insistence on the
acceptance of the economic terms, even to the
point of conditioning the execution of any agree-
ment on such acceptance, could possibly be at-
tributed to hard bargaining.
But these arguments fall when Respondent's de-
mands regarding insurance and pensions come into
consideration. Throughout the numerous meetings
Respondent expressed its complete willingness to
pay out the same amount of money for insurance
and pensions as it had been contributing to the
union industrywide plans. But at the same time
Respondent adamantly insisted on eliminating the
union plan and upon having its own insurance and
pension plans with private carriers. Reluctantly the
Union agreed to the private carrier plans provided
the benefits thereunder were equal to, or better
than, those under the union plans.
Although requested to do so, Respondent failed
to produce a pension plan, or an insurance plan, for
purposes of comparison. In fact Respondent's attor-
ney by letter dated February 26, 1969, rather plain-
tively protested that, "We never stated that we
would provide information regarding a pension plan
over and above the actuarial report (Wyatt Report)
already furnished you. "14 This could only mean that
it was incumbent upon the Union to accept
Respondent's verbal assurances that its pension
plan would be equal to or better than the union
plan in order to reach agreement with Respondent.
When allegedly because the Union had created
an "impasse" by failure to accept Respondent's al-
leged pension plan on faith, Respondent on June 1,
1969, unilaterally put its "last offer" into effect at
its restaurant. This "last offer," of course, included
Respondent's alleged pension plan with a private
carrier at an agreed cost of 40 cents per day per
employee.
At this point what must have been suspected al-
ready from Respondent's absolute refusal to
produce its private carrier pension plan became a
proven fact: There was no private carrier pension
plan, there never had been such a plan and, judging
from Respondent's efforts since June 1, 1969, to
wit, one "casual" telephone call, there will never be
any such plan.
So all of Respondent's insistence on its own
private carrier pension plan over the past many
months of so-called negotiations had proved to be
nothing more than time consuming conversation,
idle chit chat or, in the venacular, "a lot of hot air."
Wasting time haggling over "hot air," i.e., nonex-
istent, fictitious private carrier pension plans, and
indeed making that a sina qua non to agreement, is
not bargaining in good faith. It is in fact affirmative-
ly bad faith, if not worse.
Respondent's insistence on the Union's ac-
ceptance, as a condition of agreement, of this al-
leged plan without examination and on faith of the
oral assurances of this Respondent-after all these
years of futile, abortive bargaining-that the
benefits of the plan would equal or better the
benefits under the union plan equates with being
asked to buy a "pig in the poke" sight and unseen
from a street peddler. No reasonable man would
buy. No reasonable man would expect him to.
Accordingly I can only conclude, as I do, that
under the circumstances here Respondent made its
private carrier pension plan a condition to agree-
ment solely as a means whereby Respondent could,
and did, assure itself that agreement with the Union
would never occur. This is far beyond "hard bar-
gaining."
The nonexistence and therefore the nonimple-
mentation of Respondent's pension plan, in addi-
tion to being clear evidence of Respondent's intent
that no agreement would be reached, had another
result of interest here. On June 1, 1969, Respon-
dent raised the hourly rate of its waitresses from $1
to $1.15. Simultaneously Respondent's 40 cents per
day per employee contributions to the union pen-
sion fund ceased and Respondent's private carrier
plan was, of course, being nonexistent, not imple-
mented. So the waitresses' 5 cents per hour fringe
benefit for pensions was unilaterally taken from
them at that same time and began flowing into
Respondent's bank account for Respondent's use
and benefit. Thus this generous 15-percent wage in-
"The Wyatt Report was not a pension plan At best the Wyatt Report
was a written confirmation of a telephone conversation that , in the opinion
of the Wyatt Company, a pension plan having certain features was feasible
from an actuarial point of view The Wyatt Company was not a carrier
CHAMBERTIN RESTAURANT
crease became a less generous 10-percent increase.
The actual increase shrinks even under 10 percent
when we subtract the further loss of income to the
waitresses caused by Respondent 's simultaneous
elimination of split-shift bonus and overtime for the
sixth day of work , a reduction which cannot be
ascertained in this record.
One of the "positions " taken by General Counsel
here , 15 despite the figures above , was that Respon-
dent violated Section 8 ( a)(5) by unilaterally in-
stituting the $1.15 hourly wage on June 1, 1969,
whereas the best wage offered to the Union had
been $1 . 125 for the first year and $1.15 for the
second year . Although this does appear to have
been the best firm offer made to the Union, still
Gregory acknowledged that at one time Rosenfeld
"intimated " a $1.15 rate if the split-shift bonus
were eliminated and Respondent's letter of May 21,
1969, refers to a $1.15 rate . So, although Rosen-
feld's " intimation" may not have been a firm offer
and the offer in the May 21, 1969 , letter may well
have been too late , I still cannot find that Respon-
dent 's $1.15 wage rate put into effect on June 1,
1969 , was greater than the best offer made to the
Union and thus a violation of Section 8(a)(5) of
the Act. Consequently I must dismiss paragraph 16
(h) of the complaint.
Respondent 's insurance plan with a private carri-
er was almost , but not quite , in the same category.
On June 1 , 1969, there , was no insurance plan with
a private carrier in existence or arranged for so
Respondent decided to continue to contribute that
same amount of money to the union insurance fund
in order to assure continued coverage . By August 1,
however , Respondent had arranged with Blue
Cross-Blue Shield for a coverage for those of its
employees who agreed to make a certain percent-
age contribution thereto . The result has been that
instead of having all employees covered under such
plan as was done with the union plan, the
November report made by Respondent shows that
only 36 out of Respondent 's 100-105 employees
had agreed to make contributions and thus secure
coverage by Blue Cross-Blue Shield. But, regardless
of what may have happened to the moneys thus
saved by Respondent , an insurance plan did come
into existence even though belatedly.
Respondent defends against the charge of refus-
ing to bargain and justifies its implementation of its
so-called " last offer" to the Union on June 1, 1969,
on the grounds that the negotiations had reached
an "impasse " when Gregory and Corrigan walked
out of a meeting on or about May 29, 1969, with
the remark , "We are wasting our time" after being
informed that Respondent 's position in each of the
five disputed areas remained unchanged. Of course
Respondent had been claiming that the renewed
negotiations had reached that same " impasse" as
early as June 25 , 1968, as well as thereafter. The
"impasse " Respondent refers to resulted in large
869
measure from the fact that the Union refused to ac-
cept Respondent's private carrier pension plan on
Respondent's verbal assurances and demanded the
right to see the actual terms of such plan which
Respondent both refused, and was unable, due to
its nonexistence, to produce for purposes of com-
parsions. If this private carrier pension plan were
not an intentional plan to create an alleged im-
passe, a reasonable man would have anticipated
that its nonproduction upon request would create
such an impasse. Yet Respondent's attorney as
early as February 26, 1969, answered another
union request for that alleged pension plan by
curtly writing:
We never stated that we would provide in-
formation regarding a pension plan over and
above the actuarial report already furnished
you.
This answer not only indicates the peculiar defini-
tion of bargaining in good faith under which
Respondent was operating but also conclusively
shows that Respondent was intentionally refusing
information necessary for true collective bargain-
ing. Thus Respondent itself was responsible for
whatever impasse existed and hence cannot defend
its own actions on that ground.
Under all these facts I can only conclude that
Respondent entered upon the present negotiations
with a mind hermetically sealed against arriving at
any agreement with the Union and with plans laid,
as in the case of the pension plan, whereby any
such agreement could be prevented by Respondent.
I further find that throughout these meetings
Respondent engaged in nothing but surface bar-
gaining, and in mere conversation and "hot air"
about nonexistent, fictitious terms of any agree-
ment which might be arrived at. From the
beginning Respondent has bargained in bad faith.
In all these regards I must, and hereby do, find that
Respondent refused to bargain in good faith in
violation of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with Respon-
dent's operations described in section I, above,
have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, I shall recommend
that Respondent cease and desist therefrom and
that it take certain affirmative action designed to
" See the letter amendment to paragraph 16(h), mentioned supra
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effectuate the policies of the Act.
Having found that Respondent has refused to
bargain in good faith with the Union as the exclu-
sive representative of Respondent's employees in
violation of Section 8(a)(5) and (1) of the Act, I
will recommend that, upon request, Respondent
bargain collectively in good faith with the Union as
the exclusive representative of all its employees in
the appropriate unit with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, including the underpayment of
Respondent's waitresses and other employees
raised in the Union's grievance of May 29, 1967,
and, if agreement is reached, embody such un-
derstanding in signed agreement. The appropriate
unit is: All employees employed at the Dearborn,
Michigan, restaurant of Respondent, excluding of-
fice clerical employees, guards, manager, assistant
manager, dining room supervisors and other super-
visors as defined in the Act.
In addition as a direct result of Respondent's il-
legal refusal to bargain as well as by Rspondent's
only partial implementation of its "last offer" on
June 1, 1969, Respondent failed and neglected to
provide its employees with any pension plan as
Respondent had agreed to do. As a result of
Respondent's failure in this regard each of Respon-
dent's employees was illegally deprived either of
credits accruing to him on and after June 1, 1969,
under the terms of the union pension plan by
reason of Respondent's failure to make the con-
tributions to that pension plan, or else that em-
ployee suffered a cash loss of 40 cents per day, the
agreed on cost of the pension plan purportedly to
be in existence on or after June 1, 1969. Instead of
thus resulting to the benefit of the aforementioned
employees, this sum of 40 cents per day per em-
ployee has been diverted by Respondent to its own
use and benefit since June 1, 1969. Accordingly, in
order to restore the status quo as nearly as possible
to that existing prior to Respondent's default on
June 1, 1969, I am going to order that Respondent,
at the option of the individual employee affected,
either
(1) Contribute that sum of money due and
owing to the union pension fund for work per-
formed by the individual employee on and after
June 1, 1969, so as to restore that employee's
credit in such fund to the status it would have at-
tained in the event that there had been no hiatus in
Respondent's contributions on behalf of that em-
ployee to the fund on and after June 1, 1969; or
(2) Pay to the affected individual employee in
cash the sum of 40 cents per day for each day said
employee has worked at Respondent's restaurant
since June 1, 1969, with interest thereon at 6 per-
cent per annum.
Because of the variety of the unfair labor prac-
tices engaged in by Respondent, I sense an opposi-
tion by Respondent to the policies of the Act in
general and I deem it necessary to order Respon-
dent to cease and desist from in any manner in-
fringing upon the rights guaranteed its employees in
Section 7 of the Act.
Upon the basis of the foregoing findings of fact
and upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. Detroit Local Joint Executive Board, Hotel &
Restaurant Employees and Bartenders International
Union, AFL-CIO, is a labor organization within the
meaning of the Act.
2. By refusing on and after July 17, 1968, to bar-
gain in good faith with Detroit Local Joint Execu-
tive Board, Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO, as the
exclusive bargaining representative of the em-
ployees in the above-found appropriate unit,
Respondent has engaged in and is engaging in un-
fair labor practices in violation of Section 8(a)(5)
and (1) of the Act.
3. By interfering with, restraining , and coercing
its employees in the rights guaranteed them in Sec-
tion 7 of the Act, as found above, Respondent has
interfered with, restrained, and coerced its em-
ployees in violation of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in this
case , it is hereby ordered that Respondent Cham-
bertin, Inc. d/b/a Chambertin Restaurant, Dear-
born, Michigan, its officers, agents, successors, and
assigns, shall:
(1) Cease and desist from:
(a) Refusing to bargain in good faith with the
Union as the exclusive representative of Respon-
dent's employees in the appropriate unit which is:
All employees employed at the Dearborn,
Michigan, restaurant of the Respondent, excluding
office clerical employees, guards, manager,
assistant manager , dining room supervisors and
other supervisors as defined in the Act.
(b) In any manner interfering with, restraining,
or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good
faith with Detroit Local Joint Executive Board,
Hotel & Restaurant Employees and Bartenders In-
ternational Union, AFL-CIO, as the exclusive
representative of Respondent's employees in the
appropriate unit found above with respect to rates
of pay, wages, hours of employment, and other
terms and conditions of employment including pen-
sion plans , insurance plans, and settlement of the
grievance filed by the Union on May 29, 1967, and,
if an understanding is reached, embody same in a
written signed agreement.
CHAMBERTIN RESTAURANT 871
(b) Make whole its employees for any loss of in-
surance And/or pension benefit they may have suf-
fered as a result of the termination of Respondent's
payments to the health and welfare insurance and
pension plans of the Union in the manner set forth
in the section of this Decision entitled "The
Remedy."
(c) Post at its Dearborn, Michigan, restaurant
copies of the attached notice marked "Appen-
dix."" Copies of said notice, on forms provided by
the Regional Director for Region 7, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith. 17
IT IS FURTHER ORECOMMENDED that, unless
Respondent notify said Regional Director within 20
days from the receipt hereof that it will take the ac-
tion here ordered, the Board issue an order direct-
ing Respondent to take the action here ordered.
16 In the event that this Recommended Order is adopted by the Board,
the.words " a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words " a Decision
and Order "
17 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulation- of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 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 In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
Bartenders International Union, AFL-CIO, as
the exclusive representative of the employees
in the appropriate unit below with respect to
rates of pay , wages, hours of employment, and
other terms and conditions of employment, in-
cluding insurance plans , pension plans , and set-
tlement of the grievance filed by the Union on
May 29, 1967, and, if an agreement is reached,
we will embody the same in a written signed
agreement . The appropriate unit is as follows:
All employees employed at the Dear-
born , Michigan, restaurant of Respondent,
excluding office clerical employees,
guards , manager , assistant manager , dining
room supervisors and other supervisors as
defined in the Act.
WE WILL make whole each of our employees
for any loss of insurance and/or pension
benefits each may have suffered as a result of
the termination of payments to the health and
welfare insurance and pension plans.
WE WILL NOT in any manner interfere with,
restrain , or coerce our employees in the exer-
cise of their right to self-organization , to form,
join , or assist Detroit Local Joint Executive
Board , Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO, or
any other labor organization of our employees'
choosing , to engage in concerted activities for
the purposes of collective bargaining or mutual
aid or protection , or to refrain from any such
activities , except to the extent that such right
may be affected by an agreement requiring
membership in a labor organization as a condi-
tion of employment , as authorized by Section
8(a)(3) of the Act, as amended.
CHAMBERTIN, INC. D/B/A
CHAMBERTIN RESTAURANT
(Employer)
Dated By
(Representative ) (Title)
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, bargain collectively
in good faith with Detroit Local Joint Execu-
tive Board, Hotel & Restaurant Employees and
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washing-
ton Boulevard, Detroit, Michigan 48226,
Telephone 313-226-3200.