Eddie's Chop House, Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1967

165 N.L.R.B. 861 (N.L.R.B. 1967)

EDDIE 'S CHOP HOUSE, INC. 861
Eddie's Chop House, Inc. and Rochester
Local Joint Executive Board of the Hotel
and Restaurant Employees and Bartenders
International Union , AFL-CIO. Case
3-CA-2856
1966. Subsequent to the hearing, Respondent filed a brief
which I have carefully considered.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
June 22, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On March 30, 1967, Trial Examiner George J. Bott
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in the
unfair labor practice alleged in the complaint and
recommending that the complaint be dismissed, as
set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Decision and a supporting brief. The Respondent
filed a brief and answer to the General Counsel's
exceptions.
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.
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, the exceptions, the briefs, and
the entire record in the case, 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
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT, Trial Examiner: Upon a charge filed
on February 15, 1966, by Rochester Local Joint Executive
Board of the Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, hereinafter
called the Union, against Eddie's Chop House, Inc.,
hereinafter called Respondent or Company, the General
Counsel of the National Labor Relations Board issued a
complaint and notice of hearing dated September 2, 1966,
alleging that Respondent violated Section 8(a)(1) and (5) of
the National Labor Relations Act, as amended, herein
called the Act. Respondent' s answer denied the
commission of unfair labor practices, and a hearing was
held before me, at Rochester, New York, on November 16,
1. RESPONDENT'S BUSINESS
Respondent , a New York corporation , owns and
operates a restaurant in Rochester , New York. During the
year prior to the issuance of the complaint , Respondent
sold and distributed products valued in excess of $500,000,
and during the same period received goods valued in
excess of $50,000 transported to its place of business in
interstate commerce from States other than the State of
New York. Respondent concedes , and I find , that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
A. The Issue
The only issue involved is whether Respondent
unilaterally granted a Christmas bonus to its employees in
December 1965 without having reached an impasse in
bargaining and without notice to or discussion with the
Union, as the complaint alleged. I find, contrary to the
allegations of the complaint, that Respondent bargained
with the Union to an impasse on all issues, including the
Christmas bonus, that it discussed the bonus with the
Union, and that its payment of the 1965 bonus was no
different in any material respect than its offers to the
Union during negotiations.
B. The Facts
The Union has represented and been a party to
contracts covering Respondent's employees for many
years. The last labor agreement covering employees in the
bargaining unit expired on April 30, 1965, and it was
during the negotiations for a new agreement that the
alleged unfair labor practice occurred. I find on the basis
of the record in the case, including the testimony of John
Litto, secretary-treasurer of the Union, that the Union has
been at all times since 1950 the exclusive bargaining
representative of the employees in an appropriate unit for
the purposes of collective bargaining within the meaning
of Section 9(a) of the Act. The appropriate unit within the
meaning of Section 9(b) of the Act is:
All head bartenders, bartenders, cooks, kitchen
employees, butchers, bakers, headwaiters, captains,
hostesses, waiters, waitresses, cashiers, checkers, porters,
maids, housemen, bellmen, captains of bellmen,
superintendent of service, busboys or girls, laundry
workers, employees of Respondent employed at its
restaurant exclusive of office clerical employees, guards,
professional employees and all supervisors as defined in
the Act.
For many years Respondent has paid bonuses at
Christmas time to its employees based upon their job
classifications and seniority. Respondent grants a bonus
only when it has uncommitted funds, and the record shows
165 NLRB No. 112
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that during the last 10 years a bonus was paid in 1956 and
1957, but not thereafter until it was reinstituted in 1963
and continued in 1964 and 1965. It was the 1965 bonus
which is contended to have been a unilateral act in
violation of the statute.
Litto testified without contradiction that he first learned
about the Company's practice of giving bonuses at
Christmastime during the negotiations for a new
agreement in April 1965, and that he proposed that a
provision governing bonus payments be included in the
next contract. The Company took the position, however,
that bonuses were not bargainable, and the Union filed an
unfair labor practice charge with the Board which was
settled on August 25, 1965, by an agreement in which the
Respondent undertook to bargain with the Union about
Christmas bonuses.
As a result of the settlement of the charge relating to the
Company's position on the bonus, a negotiating meeting
was held on August 27, 1965. The Respondent was
represented by its president, James Giancola, and its
attorney, Richard Epstein, and the Union was represented
by Litto and its attorney, George Hoffenberg, as well as
representatives of the locals which comprise the Joint
Board. There is no real dispute about what happened at
this meeting and, based upon the testimony of Litto,
Epstein, and Hoffenberg, I find that the Union, through
Litto, stated that it was in complete agreement with the
formula used by the Company to compute each
employee's Christmas bonus, but it wanted a firm
agreement in the labor contract that a bonus would be
paid, and some clarifying language about date of payment,
eligibility of probationary employees, and the shares of
long-term employees who may have terminated their
employment before the bonus was paid.
After the Union demanded that the Company's freedom
to decide whether a bonus should be paid be eliminated by
contract language, Attorney Epstein explained that the
Company as a matter of policy paid bonuses only when
there were funds available from operating revenue which
were not otherwise committed, and he proposed that the
bonus be abandoned entirely. The Union objected to this
proposal, stating that it was there to negotiate a bonus, not
to abolish it. The Respondent then made three proposals
regarding Christmas bonuses. Epstein offered either to
eliminate the bonus completely, agree to negotiate its
provisions with the Union if the Company decided to pay
one in the future, or agree to accept the Union's clarifying
provisions which Litto had proposed but still maintain the
right to make a decision unilaterally about paying a bonus
at all. The parties reached no agreement on the subject
and the meeting dissolved.
Another bargaining meeting took place November 30,
1965, and although there is some difference in the
emphasis placed on certain subjects, the testimony of each
side is essentially the same. Epstein said the Company
offered the terms of the now expired old agreement with
addition of the Company's wage proposal of May 7, but he
also advised the Union that the Respondent would no
longer agree to union security. According to Epstein,
Hoffenberg then inquired about the Company's position
regarding a pension, the Christmas bonus, and health and
welfare and Epstein replied that the Company would not
agree to a pension plan, would not bind itself by contract to
pay a Christmas bonus, but would consent to make some
contribution to a health and welfare fund. Epstein also said
that one of the union representatives commented that if
the Company would agree to a pension plan the Union
might "adjust" its thinking about Christmas bonuses and
increases in the Company's contribution to the health and
welfare plan.
Attorney Hoffenberg did not contradict Epstein's
testimony about the November 30 meeting. He said the
Union made three proposals, one of which was to have a
commitment to a bonus by contract. Hoffenberg's notes
made during the session indicate that the Company was
opposed to a pension and would not bind itself to a
Christmas bonus, and that, in addition, Respondent raised
for the first time the question of eliminating the union-
security provision from the contract. Hoffenberg
maintained that the Joint Board never withdrew its
proposal regarding the bonus, but he conceded that there
was "some negotiating talk" by one of the local union
representatives that they might "trade" the bonus if a
pension were obtained.
Another bargaining session, which lasted only about 30
minutes, took place on December 9, 1965. There is no
question that most of the time at the meeting was spent
discussing the union-security issue, but it is not clear
whether the Christmas bonus was discussed in any detail.
It seems from Litto's and Hoffenberg's testimony that it
may have been mentioned, but not to any extent. In any
case, there was no agreement about including a bonus
clause in the contract, and the parties were also apart on
other issues. According to Epstein, Respondent's counsel,
at the end of the meeting, Hoffenberg summarized that the
parties had "broken up" on several issues; namely,
pensions, union security, and economic matters.
Hoffenberg thought the bonus issue was mentioned "in a
general way" at the December 9 meeting, but he agreed
with Epstein that it was a very short meeting, and he said
"we reached an impasse very quickly." He also agreed
that most of the discussion was about union security and
that there was no agreement on that item or on pensions or
a bonus. Hoffenberg said his notes of the meeting revealed
the following: "Union proposals as made not acceptable.
Employer counterproposal: Eliminate union shop, refuse
the pension plan. Union offered elasticity on economic
offer, impasse, adjorned."
The December 9 meeting adjourned subject to being
reconvened on 5 days' notice from either side. Neither
party called a meeting within 5 days, but one was arranged
for January 7, 1966, probably by the State mediation
board. In the meantime, however, the Union had begun to
picket the Respondent on December 22, and the Company
on the same day had paid its employees a Christmas bonus
employing the same formula for payment as it had in 1964.
There were no communications between the parties
between the meeting of December 9 and the date the
bonus was paid.
Union security was the only or principal topic discussed
at the January 7, 1966, meeting. Epstein said it was
covered "in depth," and Litto said it was the only matter
discussed. In any case, the matter of the Christmas bonus
was not mentioned, and it also is clear that the parties
were then deadlocked over wages and union security. It
does not appear that there have been any meetings
between parties since January 7, 1966.
B. Analysis and Conclusions
Respondent does not deny, and it may be taken for
granted, that the Christmas bonus is part of the
employees' wages and a condition of employment which is
EDDIE 'S CHOP HOUSE, INC.
a mandatory subject of bargaining under the Act.' It is also
well established that an employer violates the duty to
bargain within the meaning of Section 8(a)(5) of the Act
when he puts into effect policies affecting wages or
working conditions without discussion with his employees'
representative or before an impasse has been reached, and
that even if an impasse is reached an employer may not
grant more than has previously been offered during the
bargaining.2
It is evident to me that the parties were deadlocked and
had reached an impasse in bargaining on all issues,
including the Christmas bonus, on December 9, 1965. The
last contract between the Company and the Union had
expired in April 1965, and it was stipulated that by
November 30, 1965, the parties had reached an impasse on
union security. In addition, during the November 30
meeting, pensions and Christmas bonuses were also
discussed and, as set out in more detail above, no
agreement was reached on those items. Union security
was the main subject debated on December 9,1965, and it
is apparent that the parties had reached a stalemate on
that point as well as on others. Hoffenberg said an
"impasse" was quickly reached and it appears from his
and Litto's testimony that the parties were still apart on
wages, pensions, and bonuses, and they adjourned without
fixing a definite date for another meeting. There is no
contention that the parties had not had an adequate
opportunity to discuss their differences by December 9,
and I find that on that date a genuine impasse existed on
major issues, such as pensions, union security, and wages,
as well as on Christmas bonuses, which appears to have
been a relatively minor issue in the negotiations.
The Christmas bonus issue was discussed along with
the other matters involved in the bargaining. Proposals
and counterproposals were made about it during the
August 27 and November 30 meetings, and, according to
Hoffenberg, it was also mentioned in a "general way" on
December 9 without being resolved. I find that in this area
' N L R B v Niles-Bement-Pond Company, 199 F 2d 713
(C A 2), Stark Ceramics, Inc, 155 NLRB 1258.
2 N L R B v Benne Katz, d/b/a Williamsburg Steel Products
Co , 369 U S 736, N.L R B v Crompton-Highland Mills, Inc , 337
U S 217
863
too the Union was given the bargaining opportunity to
which it was entitled under the Act.
I also find that the Company's unilateral act of paying
the bonus after an impasse was reached was not
significantly different from its bargaining proposals or
from its past practices. Respondent had offered to
eliminate the bonus, pay it at its discretion, using,
however, the same standards it had in the past with the
clarifications or amendments suggested by the Union, or to
negotiate it with the Union before paying it. The Union
rejected these proposals and insisted that the Company
bind itself to pay a Christmas bonus as it had the year
before. An impasse having developed, Respondent,
utilizing the same formula it had used in 1964 to determine
payments to individual employees, paid a Christmas bonus
in a sum no larger than its payment in 1964. By taking such
unilateral action after an impasse in bargaining had been
legitimately reached, Respondent did not refuse to bargain
with the Union in violation of Section 8(a)(5) and (1) of the
Act 3
CONCLUSIONS OF LAW
1. Respondent's, Eddie's Chop House, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that the complaint be dismissed in its
entirety.
' See N L R B v Katz, supra , N L R B v Crompton-Highland
Mills, Inc , supra , fn 2, Fetzer Television , Inc. v. N L R.B , 317
F 2d 420 (C A. 6); N.L.R B v Sonics Corp 312 F 2d 610 (C A 1)