Dover Tavern Owners' Association

National Labor Relations Board - Board Decisions

May 23, 1967

164 N.L.R.B. 933 (N.L.R.B. 1967)

DOVER TAVERN OWNERS' ASSN. 933
Dover Tavern Owners' Association and
Bartenders , Culinary Workers and Motel
Employees Union , Local 158, AFL-CIO,
Petitioner. Case 22-RC-3562.
May 23, 1967
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Julius
Cohn. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are
hereby affirmed. The parties did not file briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer, Dover Tavern Owners'
Association, challenges the Board's jurisdiction. It
contends that the members of the Association
individually do not meet the Board's jurisdictional
standards, and that it is improper to consider the
separate businesses of the members as a single
entity because the members of the Association do
not together constitute an appropriate multi-
employer bargaining unit.
Dover Tavern Owners' Association was formed in
1960 by tavern owners in the Dover, New Jersey,
area. At that time the members elected officers and
adopted bylaws. In 1962 and 1964, a committee of
tavern owners representing the Association met with
representatives of the Petitioner's predecessor,
Bartenders, Local 633, to negotiate collective-
bargaining agreements. In each instance, after
agreement on terms was reached by the negotiators,
the committee notified all the Association's
members thereof, and the Union prepared separate
but identical collective-bargaining contracts which
were signed by each Association member.
In November 1965, the Petitioner replaced its
sister Local 633 as bargaining representative. In
December of that year, the Petitioner requested the
Association to reopen the 1964 contract which was
not cue to terminate until September 15, 1966. The
Association acknowledged Petitioner's successorship
to Local 633, but denied the request for bargaining
before the 1966 termination date of the existing
contract.
On July 6, 1966, in view of the impending
expiration of the existing contract, representatives of
the Petitioner met with a committee of the
Association to canvass the prospects for concluding
a new agreement. Petitioner presented its contract
demands and "quite a discussion" ensued. The
parties agreed that the tavern owners' committee
would bring the Petitioner's proposals before the
next meeting of the Association on July 13, and after
this meeting would notify the Petitioner of the
members' position on the Union's demands.
However, the Association did not respond until its
committee met again with Petitioner during the first
week in September 1966. At that meeting, the
committee stated that they did not wish to negotiate
with the Petitioner "at that time."
Prior to the hearing in this case the Petitioner had
never received notice from any member of the
Association that it was withdrawing authorization to
engage in bargaining from the Association's
committee. Nor had the Association ever informed
the Petitioner that the Association no longer
represented the individual tavern owners for the
purposes of collective bargaining. In fact, the
following excerpt from a letter written by the
Association's attorney to the Petitioner only 6
months before the expiration of the 1964 contract
calls attention to the existing pattern of bargaining.
. please be assured that both the Dover
Tavern Owners' Association . and its
individual members recognize Local 158 as the
collective-bargaining agent for their employees
and will be only too happy to work with
Local 158 in harmonious cooperation for the
mutual benefit of both groups. If you desire a
recognition agreement to that effect, I will
submit it to the Association, and it then can be
signed either by the Association or by the
individual members of the Association.
We are pleased to hear that the terms of the
existing contracts with Local 633 will be
acceptable to Local 158 and I am sure that the
bargaining for the new agreements to be
effective after September 15, 1966, will go
smoothly since there is good will on both sides.
On February 10, 1967, between the first and
second days of the hearing herein, the Association
received letters from 11 of its members stating:
Gentlemen, please be advised that it is
hereby confirmed that you are not authorized to
enter into negotiations or bargaining with any
labor organization on behalf of the undersigned.
In this case the bargaining history reveals
unanimous employer acceptance of the two
collective-bargaining contracts negotiated by the
tavern owners' committee since the formation of the
Association in 1960. The same history reveals the
Association's recognition of the Petitioner as the
successor to Bartenders' Local 633. Accordingly, we
find that the Dover Tavern Owners' Association, by
its committee's negotiation and its members'
acceptance of the 1962 and 1964 contracts, had
created a multiemployer unit for the purposes of
collective bargaining.
164 NLRB No. 130
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There remains to be considered the question of
whether the attempted withdrawals of 11 individual
tavern owners on February 10, 1967, were effective.
In this regard, the Board has "maintained a policy of
allowing an employer to withdraw from a
multiemployer unit, provided the withdrawal is
made at an appropriate time, usually prior to the
start of multiemployer negotiations."' Here the
members of the Association did not attempt to
withdraw from the multiemployer bargaining unit
until after the start of the hearing in this case on
February 7, 1967. This was clearly untimely.
Accordingly, we find that the members of the
Assocation have not effectively withdrawn from the
established multiemployer unit and that such unit is
still appropriate for bargaining purposes.
In deciding the jurisdictional question we shall,
therefore, consider the total business done by
members of the Association. Since the record
reveals that the tavern owners together annually
purchase alcoholic beverages exceeding $2,500 in
value from New Jersey distributors who receive such
goods from places outside the State of New Jersey,
and the combined gross annual retail sales revenue
of the Association's members exceeds $500,000, we
find that the Employer is engaged in commerce
within the meaning of the Act, and that it will
effectuate the purposes of the Act to assert
jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The Petitioner seeks to represent a unit of all
bartenders employed by the members of the
Association. In view of the fact that the Petitioner's
predecessor, Bartenders' Local 633, represented the
employees sought herein in an identical unit , and the
Employer failed to object to the unit proposed by the
Petitioner, except as noted above, we find that the
following employees constitute a unit appropriate for
collective bargaining within the meaning of Section
9(b) of the Act:
All bartenders employed by the members of
Dover Tavern Owners' Accociation,2 Dover,
New Jersey, excluding all other employees, and
supervisors as defined in the Act.
[Text of Direction of Election 3 omitted from
publication.]
i Sound Contractors Association, 162 NLRB 364, 366
2 The individual employer-members of the Association are Idle
Hour, Highway Tavern, Dutton Hotel, Old Tye Tavern, Marty's
Essex Tavern, Grande's Tavern, East End Tavern, Fred's Tavern,
Pal Office Cafe, Charlie's Taproom, Green Lantern, Ken's
Tavern, Divvy's Tavern, Johnny's Tavern, and Bill & Dot's
Taproom
9 An election eligibility list, containing the names and
addresses of all the eligible voters , must be filed by the Employer
with the Regional Director for Region 22, within 7 days after the
date of this Decision and Direction of Election The Regional
Director shall make the list available to all parties to the election.
No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure
to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed Excelsior
Underwear Inc., 156 NLRB 1236