Eugene's

National Labor Relations Board - Board Decisions

Sep 26, 1977

232 N.L.R.B. 366 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eugene's and Hotel, Motel, Restaurant Employees
and Bartenders Union, Local 86, Hotel and
Restaurant Employees and Bartenders Internation-
al Union, AFL-CIO
Eugene's, Inc., a Subsidiary of Federal Coal Company
and Hotel, Motel, Restaurant Employees and
Bartenders Union, Local 86, Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO. Cases 20-CA-9803, 20-CA-9853, 20-
CA-9869, 20-CA-9897, 20-CA-9905, and 20-
CA-11530
September 26, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On May 10, 1977, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the Respondents and the
General Counsel filed exceptions and supporting
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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Eugene's, Inc., a Subsidiary of Federal Coal
Company, Reno, Nevada, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Administrative Law Judge's recommended Order, as
so modified:
1. Substitute the following for paragraph 1:
"1. Cease and desist from:
"(a) Failing and refusing to recognize and bargain
in good faith with the Union as the exclusive
collective-bargaining representative of its employees
in the following unit:
"All employees employed by the Corporation in
its bar and culinary operations at Reno, Nevada,
excluding all other employees, guards and super-
visors as defined in the Act.
232 NLRB No. 61
"(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondents have excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We find it unnecessary to pass on the General Counsel's contention
that the sum of $24,000, representing the amount received for "disposable
inventory," should be included in the gross revenues of Eugene's,
Respondent partnership, during the period December 1, 1974, through
December 3, 1975; we would assert jurisdiction, in any case, for the reasons
stated by the Administrative Law Judge.
I In par. I of his recommended Order, the Administrative Law Judge
inadvertently omitted the narrow cease-and-desist language. "in any like or
related manner," which the Board traditionally provides in cases involving
8(a)(I) and (5) conduct. Accordingly, we shall modify the recommended
Order. We shall also modify the posting notice to reflect the entire
recommended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT continue in our failure and
refusal to bargain in good faith with Hotel, Motel,
Restaurant Employees and Bartenders Union,
Local 86, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, as
the exclusive representative for collective-bargain-
ing purposes of our employees in the following
unit:
All employees employed by us in our bar
and culinary operations at Reno, Nevada,
excluding all other employees, guards and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL recognize and, upon request, bargain
in good faith with the Union concerning the rates
of pay, wages, hours, and working conditions of
our employees in the above unit and, if an
agreement is reached, WE WILL reduce it to
writing and sign it.
EUGENE'S, INC., A
SUBSIDIARY OF FEDERAL
COAL COMPANY
366
EUGENE'S
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
January 4, 5, and 6, 1977, 1 conducted a hearing at Reno,
Nevada, to hear issues raised by a consolidated, amended
complaint issued on October 3, 1975, against the Partner-
ship1 and a complaint issued on August 31, 1976, against
the Corporation. The original charge in Case 20-CA-9803
was filed by Hotel, Motel, Restaurant Employees &
Bartenders Union Local 86, Hotel & Restaurant Employ-
ees & Bartenders Union, AFL-CIO, 2 against the Partner-
ship and a number of other respondents on December 16,
1974. It was amended seven times, i.e., on December 18,
26, and 31, 1974; January 3 and 6, 1975; May 9, 1975; and
June 2, 1975. The charge in Case 20-CA-9853 was filed by
the Union against the Partnership and other respondents
on January 10, 1975. The charge in Case 20-CA-9869 was
filed by the Union against the Partnership and other
respondents on January 16, 1975. The charge in Case 20-
CA-9897 was filed by the Union against the Partnership
and other respondents on January 23, 1975. The charge in
Case 20-CA-9905 was filed by the Union against the
Partnership and other respondents on January 27, 1975.
The charge in Case 20-CA-11530 was filed by the Union
against the Corporation on June 1, 1976. The Regional
Office issued a consolidated complaint on August 27, 1975,
versus the Partnership and other respondents in the
numbered cases above other than Case 20-CA-11530. On
September 18, 1975, the cases against the Partnership were
severed for hearing purposes from the cases against the
other respondents. On October 3, 1975, an amended
complaint consolidating all the numbered cases other than
Case 20-CA-11530 was issued against the Partnership. On
August 31, 1976, the Regional Office issued a complaint
against the Corporation. On October 27, 1975, Attorney
Wertz filed an answer to the complaint against the
Partnership and on October 14, 1976, Wertz filed an
answer to the complaint against the Corporation.
The October 3, 1975, complaint alleged that the Partner-
ship since December 13, 1974, has violated Section 8(aXl)
and (5) of the National Labor Relations Act, as amended
(hereafter called the Act), by failing or refusing to comply
with the Union's request to bargain collectively with the
Union as the representative of a majority of its employees
within an appropriate unit. That complaint also asserted
that the Partnership during the previous calendar year
(1974) received gross revenues in excess of $500,000 and
purchased and received goods and materials valued in
excess of $ 10,000 from outside of Nevada. The October 27,
1975, answer to that complaint denied that the Partnership
received service of the charges, 3 denied it received gross
revenues and made purchases in the amounts recited,
denied it was in or affected commerce, denied the Union
I Prior to December 3, 1975, Walter Zahnd, Raymond Capitaine, and
Rene Jacquemain, a partnership, operated Eugene's restaurant, a restaurant
and bar in Reno. Nevada; shortly prior to December 3, 1975, Federal Coal
Company, a West Virginia corporation, caused a Nevada corporation to be
formed named Eugene's, Inc. which corporation purchased the restaurant
and bar from the three partners. Hereafter the owners of the restaurant prior
to December 3. 1975, shall be called the Partnership and the purchasing
corporation shall be called the Corporation. It is undisputed and I find at all
was a labor organization, denied the Partnership was
covered by a series of contracts between the Reno
Employers Council and the Union to and including
February 15, 1975, denied the appropriateness of the unit
set forth in the complaint, denied at appropriate times the
Union represented a majority of its employees within such
unit, denied the Union requested collective bargaining on
behalf of the unit employees, and denied it failed or refused
to comply with the Union's request for bargaining.
The August 31, 1976, complaint alleged the Corporation
was a successor to the Partnership, that it was aware of the
pending unfair labor practice charges against the Partner-
ship when it purchased Eugene's, and that the Corporation
failed or refused to comply with the Union's request to
bargain collectively with the Union as the representative of
a majority of its employees within an appropriate unit.
That complaint also alleged during the 12 months preced-
ing December 1, 1975, the Partnership received gross
revenues exceeding $500,000 and purchased and received
goods valued in excess of $10,000 from outside Nevada,
and that during the calendar year 1976 the Corporation
would receive gross revenues exceeding $500,000 and
purchase and receive goods and services valued in excess of
$10,000 from outside Nevada. The October 14. 1976,
answer to that complaint denied service of the charge, 4
denied the Partnership was covered by a series of contracts
between the Reno Employers Council and the Union with
the last such contract expiring February 15, 1975, denied
the Corporation was a successor to the Partnership as the
owner and operator of Eugene's restaurant and bar, denied
the Corporation knew of the pending unfair labor practice
charges against the Partnership when it purchased Eu-
gene's, denied the Partnership received over $500,000 in
gross revenues in the 12 months preceding December 1,
1975, denied the Corporation would receive gross revenues
in excess of $500,000 in 1976, denied the Corporation was
in or affected commerce, denied the Partnership was in or
affected commerce, denied that Jack, Thomas, and Paul
Hamlin were supervisors and agents of the Corporation
acting on its behalf at pertinent times, denied that
Raymond Capitaine was a supervisor and agent of the
Corporation acting on its behalf at times pertinent, denied
the appropriateness of the unit, denied the Union repre-
sented a majority of the employees within the unit at times
material, denied the Union requested recognition and
bargaining of the Corporation, and denied the Corporation
refused to recognize and bargain with the Union at its
request.
The Regional Office issued an order on September 1.
1976, consolidating the complaints against the Partnership
and the Corporation recited heretofore for purposes of
hearing and determination.
times pertinent the three partners were supervisors and agents of the
Partnership acting on its behalf.
2 Hereafter called the Union.
I Inasmuch as Zahnd testified he received copies of the charges in the
regular course of business. I find they were received by the Partnership on
the dates alleged in the October 3, 1975. complaint.
4 I find the charge was served on the Corporation on the date alleged in
the August 31, 1976, complaint, as T. Hamlin indicated knowledge of it.
367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the outset of the hearing the parties stipulated that the
Partnership received gross revenues in excess of $500,000
during the calendar year 1974; 5 the Partnership purchased
goods and services from outside of Nevada valued in
excess of $10,000 during the calendar year 1974; the
Partnership purchased goods and services from outside
Nevada valued in excess of $10,000 during the 12 months
preceding December 1, 1975; the Corporation purchased
goods and services from outside Nevada valued in excess
of $10,000 during the calendar year 1976; the Union was a
labor organization within the meaning of the Act; the
Partnership was covered by a series of contracts between
the Reno Employers Council and the Union from 1962
through February 15, 1975; and Jack, Thomas, and Paul
Hamlin were supervisors and agents of the Corporation
acting on its behalf at times pertinent.
The issues remaining for determination are:
1. Whether certain portions of the Partnership's gross
revenues for 1974 should be excluded for jurisdictional
purposes.
2. Whether the Partnership received gross revenues in
excess of $500,000 during the 12 months preceding
December 1, 1975.
3. Whether the Corporation received gross revenues in
excess of $500,000 in the calendar year 1976.
4. Whether Board jurisdiction may or should be
asserted over the Partnership and the Corporation.
5. The appropriateness of the bargaining unit set forth
in the two complaints and the Union's representative status
therein.
6. Whether the Union requested the Partnership to
bargain collectively and the Partnership failed or refused to
comply with that request.
7. Whether the Corporation was a successor to the
Partnership.
8. Whether the Corporation had notice of the pending
unfair labor practice charges against the Partnership when
it purchased Eugene's.
9. Whether Raymond Capitaine was a supervisor and
agent of the Corporation acting on its behalf at times
pertinent.
10. Whether the Union requested the Corporation to
bargain collectively and the Corporation failed or refused
to comply with that request.
11. Whether the Partnership and the Corporation
violated Section 8 (a)(I) and (5) of the Act.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, to examine
and cross-examine witnesses, to argue, and to file briefs.
Briefs have been received from the General Counsel, the
Partnership, and the Corporation.
Based upon my review of the entire record, observation
of the witnesses, perusal of the briefs, and research, I enter
the following:
I But contend certain portions of those revenues should be excluded in
computing their gross income for jurisdictional purposes, which would result
in gross income less than $500,000.
FINDINGS OF FACT
1. JURISDICTION
As noted heretofore the parties stipulated that the
Partnership purchased goods and services from outside
Nevada valued in excess of $10,000 during calendar year
1974, that the Partnership purchased goods and services
from outside Nevada valued in excess of $10,000 during the
period December 1, 1974, through November 30, 1975, and
that the Corporation purchased goods and services from
outside Nevada valued in excess of $10,000 during the
calendar year 1976.
The parties further stipulated that the Partnership
received gross revenues in excess of $500,000 during the
calendar year 1974.6
The record discloses the Corporation's gross revenues for
the calendar year 1976 totaled $463,652 and that the
restaurant and bar was closed for the month of October
1976. Dividing the gross figure for the 11 months of
operations by 11 indicates an average monthly revenue
over the 11 months of operations of $42,150. Adding the
latter figure to the actual revenues for the 11 months of
operations yields a total for the year, had the restaurant
and bar been in operation continuously, of $505,802.
The Partnership tax return filed by the Partnership for
the calendar year 1975 discloses gross revenues over the 11-
month, 3-day period of the Partnership operation of the
restaurant and bar during 1975 (January I - December 3,
1975) of $475,897. The ledger reflecting the Partnership's
operations during the calendar year 1974 discloses during
the month of December 1974 that the Partnership received
revenues of $38,162. Adding these two figures together
reflects total revenues to the Partnership for the 12-month,
3-day period extending from December 1, 1974, to
December 3, 1975, of $514,059.
It is undisputed on June 30, 1974, the Partnership ceased
to provide catering services for United Airlines which,
during the 6 months extending from January I to June 30,
1974, produced gross revenues of approximately $100,000.
The Partnership's records reflect that over the year 1974
the credit card companies with whom it did business
subtracted $7,445 in discounts from the amounts submitted
by the Partnership charged for food and liquor purchases
by its customers on their credit cards. Neither the
Partnership nor the Corporation has resumed the catering
service operations.
The Partnership argues that the nonrecurring income
from the United Airlines catering service in 1974
($100,000) and the credit card discount ($7,445) should be
subtracted from its gross revenues in calendar year 1974 for
the purpose of computing whether or not the Partnership
meets the Board's jurisdictional standards for retail
establishments. It argues since the $100,000 catering
income for that year is a nonrecurring income, it should
not be used in calculating the jurisdictional amount for
purposes of this case. The Partnership also argues that the
credit card discounts should be calculated in because the
Partnership never received the moneys in question, which
6 The Partnership's gross revenues during the calendar year 1974 totaled
S598,772.
368
EUGENE'S
were deducted prior to remission from the credit card
companies for food and beverages purchased at the
restaurant.
I reject both contentions; certainly the Partnership's
actual gross receipts for the year 1974 included the
approximately $100,000 received on the United Airlines
catering contract and did not dilute the income for that
calendar year; as to the latter, it was obviously a cost of
doing business, that is, the restaurant and bar permitted its
customers to charge their purchases of food and liquor to
encourage their patronage and thus the resulting charges
the credit companies levied against the restaurant on
receiving the bills were anticipated costs of doing business,
that is, an expense of doing business.
I therefore find and conclude that for the calendar year
1974 the Partnership satisfied the Board's jurisdictional
standards for retail establishments both as to legal
jurisdiction (buying more than $10,000 in goods and
services from outside the State of Nevada) and its
discretionary standard (over $500,000 in gross receipts).
The record reflects during the period December 1, 1974
to December 3, 1975, credit card discounts of $8,327
showed on the Partnership books. The Partnership claimed
that gross revenues over that period also include the sum of
$24,600 it received from the Corporation for disposable
inventory.7
Accepting the Partnership's evaluation of the value of the
disposable assets and its inclusion in the gross receipts
figure reduces the Partnership's gross receipts from
operations figure below $500,000 for the 12-month, 3-day
period (to $489,459). I again reject the contention the credit
card discounts should be utilized to further reduce the
gross receipt figure for the period in question, for reasons
stated heretofore.
The Corporation argues its gross receipts for 1976 for its
11 months of operations ($463,652) should be reduced by
$8,000, the value of its credit card discounts for the
calendar year. I reject that position for the reasons stated
above. The Corporation further contends an interpolated
figure should not be added in for the month of October
1976 on the ground its current management consultant
advocates a policy of closing I month each year as a future
practice. It is undisputed that the October 1976 closing was
utilized for extensive renovations and remodeling of the
restaurant and bar, which will not normally constitute
grounds for failing to interpolate a figure for such time in
arriving at anticipated gross receipts for an entire calendar
year.
I reject the Corporation's position concerning this matter
on the ground its future conduct is problematical at best.
I therefore find and conclude for the calendar year 1976
the Corporation met both the Board's legal standard for
asserting jurisdiction (purchase of over $10,000 in goods
and services from outside Nevada) and its discretionary
7 Liquor, food, napkins, etc., on hand at time of sale. The amount the
Partnership received from the Corporation for purchase of furniture.
fixtures. dishes. silverware, etc., while it appeared in the Partnership income
tax return for 1975. was not included in the gross receipts figure of 475, 897.
T'he alleged value of the disposable inventor) ($24,600) allegedly included
within the gross receipts figure was estimated by the Partnership: no records
were produced to substantiate the $24,600 figure or prove it was included
within Ihe gross receipts figure.
standard for retail institutions (gross revenues in excess of
$500,000).
Under the circumstances of this case, I do not find the
fact that the Partnership may have received gross revenues
during the period December 1, 1974 to December 3, 1975,
approximately $11,000 under the $500,000 discretionary
standard as sufficient ground for declining to exercise
jurisdiction over both the Partnership and the Corporation
in this case. Certainly the gross revenues of the Partnership
for calendar year 1974 and the gross revenues of the
Corporation for calendar year 1976 exceeded the discre-
tionary standard; the standard for the exercise of legal
jurisdiction has been met for all three periods; thus the
small drop, if the disposable inventory value figure is
accepted, in gross revenues for 1975 appears a temporary
drop insufficient to warrant the declination of jurisdiction
in this case.
Based on the foregoing, I find and conclude at all times
pertinent both the Partnership and the Corporation were
employers engaged in commerce in a business affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
11. LABOR ORGANIZATION
The two complaints alleged, the parties stipulated, and I
find at all times pertinent the Union was a labor
organization within the meaning of Section 2(5) of the Act.
11I. THE PARTNERSHIP-THE UNIT, UNION
REPRESENTATIVE STATUS, AND REFUSAL-TO-BARGAIN
ISSUES
When the Partnership commenced business in 1962, it
joined the Reno Employers Council and became a party to
a series of collective-bargaining agreements between the
Council and the Union covering the bar and culinary
employees employed by the Partnership and other mem-
bers of the Council in the Reno-Tahoe-Sparks area. The
last such agreement expired on February 15, 1975.
On November 15, 1974, the Union sent letters to the
Council, the Partnership, and other members of the
Council requesting bargaining over the terms of an
agreement supplanting the expiring February 15, 1975,
agreement.
In a familiar pattern of response, 8 on December 12, 1974,
the Partnership sent a letter to the Council withdrawing
authority from that organization to further represent it for
collective-bargaining purposes and, on the same date, sent
a letter to the Union notifying the Union of that
withdrawal and its termination of the expiring agreement.
The Partnership made no response to a second (Decem-
ber 13, 1974) letter from the Union reiterating its request
for a meeting to bargain out the terms of a contract to
succeed the expiring agreement.
I Cf. Tahoe Nuggell, Inc. 227 NLRB 357 (1976); Nevada Lodge, 227
NLRB 368 (1976); Barne's Club, Incorporated, 227 NLRB 414 (1976):
Carda Motels, Inc., d b/a Holiday Hotel & Casino, 228 NLRB 926 (1977)}:
Silver Spur Casino, 228 NLRB 1147 (1977). Pioneer Inn, Asociatles, d' ba
Pioneer Inn and Pioneer Inn Casino 228 NLRB 1263 (1977).
369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zahnd testified the Partnership refrained from respond-
ing to the Union's repeated requests for bargaining because
he doubted the Union represented a majority of the
Partnership's bar and culinary employees, reciting the same
litany chanted by his fellow council members (see the
preceding footnote) as grounds for his alleged doubt, i.e.,
(1) that he read two newspaper articles published in late
August 1974 wherein the Union's chief representative
bewailed the extent of organization within the Union's
jurisdiction in the Reno-Tahoe-Sparks area, complained
wages and benefits paid to employees within the Union's
jurisdiction in that area were far below the standards
prevailing in Las Vegas, and declared the Union's determi-
nation to better both its membership in the area and their
wages and benefits; (2) that two employees 9 told him they
signed up with the Union in the course of its August 1974
organizational drive with the expectation the Union would
improve their wages and benefits but later decided they
had wasted their time and money and dropped out and
that he heard two other employees 10 say they were satisfied
with their wages and conditions; (3) that he saw the
employee who collected dues for the Union collect only
from two or three employees; (4) that no grievances were
filed by the Union against the Partnership; " (5) that the
employees never had an opportunity either to choose or
reject union representation; and (6) that the Council-
Union contracts did not contain any union-security
provision.a
The Board has held consistently (see the cases recited in
fn. 8) that it will presume that the Partnership lawfully
recognized the Union in 1962 as the representative of a
majority of its bar and culinary employees when it became
a party to the then current Council-Union agreement and
further presume that such majority representative status
continued through the terms of the successive agreements
thereafter through the agreement expiring February 15,
1975, unless such presumptions are rebutted by affirmative
evidence sufficient to support a finding the Union did not
represent a majority of the unit employees at the time it
requested bargaining for a new contract or affirmative
evidence sufficient to support a finding the employer
possessed a good-faith belief based upon objective, factual
evidence that the Union did not represent a majority of the
unit employees at the time the employer failed or refused to
comply with the Union's request for bargaining for a new
contract. 13
The Partnership made no effort to prove that the Union
did not represent a majority of its employees within the
unit it recognized under the agreements either at the time
the Union requested bargaining for a new agreement or at
the time Zahnd decided to refrain from complying with
that request. Thus, the Partnership's attempt to rebut the
presumption the Union represented a majority of its
employees in the contract unit was grounded solely upon
the contentions advanced by Zahnd in his testimony.
9 Waiters Leon Hernandez and Uwe Nicolai.
'° Ernest Phillips and Michael Cevantes.
n At the same time stating the Partnership complied with all the terms of
the successive contracts.
2 Nevada is a right-to-work State, which bars such agreements.
':' See cases cited in fn. 8 and Komatz Construction, Inc. v. N. L.. R.B., 458
F.2d 317 (C.A. 8, 1972); N.LR.B. v. Frick Company, 423 F.2d 1327 (C.A. 3,
Those contentions fail to satisfy the criteria recited above;
i.e., objective, factual proof sufficient to justify Zahnd's
alleged doubt of the Union's continued majority represen-
tative status. Reason 1, the newspaper articles, makes no
mention of the Union's representative status among the
Partnership's unit employees and, by Zahnd's own testimo-
ny, the Union's August 1974 organizational effort among
the Partnership's employees enjoyed considerable success.
Reason 2, Hernandez' and Nicolai's August 1974 com-
ments they joined the Union in the course of the August
1974 organizational drive and later dropped out and
Phillips' and Cevantes' comments about the same time that
they were satisfied with conditions at the restaurant are
remote in time to the date of Zahnd's declination to
bargain, are ambiguous with regard to the question of
whether the employees in question nevertheless supported
the Union in its announced campaign to better their wages
and working conditions in bargaining for a new contract to
supplant the agreement expiring on February 15, 1975 and,
in any event, fail to prove that a majority of the
Partnership's employees within the unit did not support the
Union at the time (December 1974) the Union requested
bargaining and Zahnd decided to refrain from compliance
with that request. It is further noted that statements made
by employees to their employer at a time a union
organizational campaign is in progress are somewhat
suspect as to whether they reveal the true sentiments of the
employees concerning their union sentiments.
Turning next to reason 3, Zahnd's observation of union
dues collection in the restaurant from only two or three
employees is inconclusive; many employees may choose to
pay their dues to the collector off the premises, they may
bring or mail such dues directly to the Union's office, or
they may support the Union even though not paying dues
(as earlier noted, Nevada, as a State with a right-to-work
statute, prohibits any contractual requirement that employ-
ees join or pay dues to a union except on a voluntary
basis). As to reason 4, Zahnd conceded the Partnership
complied with all the terms of the Council-Union agree-
ment, so there was no basis for any grievances. As to
reason 5, the absence of any poll to determine employee
sentiment, it is presumed the Union represented a majority
of the unit employees when the Partnership recognized the
Union as their exclusive collective-bargaining representa-
tive in 1962 and continued such recognition in succeeding
contracts through 1975.14 In any event, this is not proof of
objective facts justifying a refusal to bargain. Reason 6 is
irrelevant as well; the Nevada statute barring union-
security agreements prohibits any agreement between the
Union and the Partnership conditioning employment on
union membership, so the absence of such agreement has
no significance.' 5 A seventh reason noted in the briefs,
heavy employee turnover, does not warrant consideration
inasmuch as Zahnd did not testify he placed any reliance
on this factor in reaching his decision to refrain from
1970); N.L. R.B. v. Master Touch Dental Laboratories, Inc., 405 F.2d 80 (C.A.
2, 1968).
14 Bartenders, Hotel, Morel and Restaurant Employers Bargaining Associa-
tion of Pocatello, Idaho, 213 NLRB 651 (1974).
i5 Wald Transfer & Storage Co. and Westheimer Transfer & Storage Co,
Inc., 218 NLRB 592 (1975).
370
EUGENE'S
bargaining with the Union at its request. In any event, this
is not determinative; it is presumed changes in employee
complement do not change the degree of union support
within the unit in the absence of evidence to the contrary.' 6
On the basis of the foregoing I find (as did the Board in
the series of cases involving other casino, bar, and
restaurant operators and the Union decided to date-see
fn. 8) that the grounds cited by the Partnership for its
alleged doubt of the Union's majority representative status
in the unit were subjective in nature and insufficient to
rebut the presumptions created by the Partnership's
original (1962) recognition of the Union as the exclusive
collective-bargaining representative of its bar and culinary
employees and continued recognition thereafter through
the expiration of the February 15, 1975, agreement.
I therefore find and conclude:
All employees employed by the Partnership in its bar
and culinary operations at Reno, Nevada, excluding all
other employees, guards and supervisors as defined in
the Act,
constitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the Act.' 7
I further find and conclude that, inasmuch as the
Partnership failed to rebut the presumption arising from
the agreement then in effect between the Council and the
Union wherein the Partnership recognized the Union as
the representative of a majority of its employees within the
above unit, both at the time (November 15, 1974) the
Union requested bargaining for a new contract and the
time (December 12, 1974) the Partnership decided to
refrain from complying with that request, the Union
represented a majority of the Partnership's employees
within the unit.
Based on the foregoing, I find and conclude the
Partnership violated Section 8(a)(1) and (5) of the Act by
its failure or refusal to comply with the Union's request for
bargaining over the terms of an agreement to supplant the
contract expiring February 15, 1975.
IV. THE CORPORATION-THE SUCCESSORSHIP AND
NOTICE ISSUES; CAPITAINE'S STATUS
While the Corporation assumed control and operation of
Eugene's restaurant on December 3, 1975, there was no
interruption of the business. In fact, two of the partners
(Raymond Capitaine and Rene Jacquemain) continued in
their customary role in charge of the kitchen, as employees
of the Corporation, after their December 3, 1975, sale of
their partnership interest to the Corporation (Zahnd acted
as maitre d'hotel and bar manager during the Partnership's
operation of the business). There was no change in the
name of the restaurant and bar, no change in the employee
complement, no change in the furnishings, fixtures, or
16 Strange & Lindsey Beverages, Inc., and Dr. Pepper Bottling Co., Inc.,
Joint Emplorers d bra Pepsi-Cola-Dr. Pepper Bottling Co., 219 NLRB 1200
(1975).
'7 Since such unit has been recognized as appropnate by the Partnership
in successive agreements extending from 1962 through 1975. Cf. Pioneer Inn,
supra, Morand Brothers Beverage (Co., 91 NLRB 409 (1950); N.LR.B. v.
Detective Intelligence Service, Inc., 448 F.2d 1022 (C.A. 9. 1971).
I8 N.L.RB. v. The William J. Burns International Detective Agenc)i Inc..
406 U.S 272 (1972).
operations of the restaurant and bar and only a substitute
in management (the three Hamlins-Jack, Thomas, and
Paul-assumed management and control of operations).
Under the circumstances, it is clear the Corporation was
the Partnership's successor for purposes of the /. .'
Zahnd testified without contradiction that he was the
managing partner in the Partnership, i.e., that he, in
addition to running the dining room and bar operations.
also handled the business details, while Capitaine and
Jacquemain ran the kitchen. He acknowledged that he
received copies of the various charges, the various
amendments thereto, the original consolidated complaint
against the Partnership and other respondents, the amend-
ed complaint solely against the Partnership, etc., and kept
the papers in manila envelopes on the premises of the
restaurant and bar. Zahnd testified that, either on the day
the business changed hands (December 3, 1975) or shortly
before that date, he gave the manila envelopes containing
the documents described above to Dan Hamlin, an
admitted supervisor and agent of the Corporation, stating
the envelopes contained the details of an ongoing dispute
with the Union and requesting Hamlin to contact him if he
had any questions about the contents of the envelopes.'
While Capitaine was somewhat evasive in his testimony, 20
in essence he confirmed a statement in his pretrail affidavit
that he also advised Jack Hamlin, an admitted agent and
supervisor of the Corporation, in either October or
November 1975, that a charge filed by the Union against
the Partnership was pending before the NLRB. His
testimony to that effect is credited.
It is additionally noted that Capitaine, who as one of the
partners clearly was conversant with the unfair labor
practice proceedings against the Partnership, stayed on in
the Corporation's employ from December 3, 1975, through
May 1976. While the Corporation denies Capitaine was a
supervisor and agent of the Corporation during this period
whose knowledge may be imputed to the Corporation, I
find to the contrary. Capitaine's testimony, that during the
period in question he acted as head chef of the restaurant
operation, was in charge of the kitchen operations and
personnel, and hired dishwashers, was supplemented and
corroborated by Tom Hamlin, an admitted supervisor and
agent of the Corporation. Hamlin testified Capitaine was a
supervisor, that he directed the work of the kitchen
employees, that he hired and terminated kitchen employees
or effectively recommended such hire or termination, and
that he ordered food, prepared work schedules, etc. On the
basis of the above-recited testimony, which I credit, I find
that Capitaine between December 3, 1975, and May 1976
was a supervisor and agent of the Corporation acting on its
behalf and that his knowledge of the unfair labor practice
proceeding against the Partnership pending before the
NLRB may be imputed to the Corporation.
19 I do not credit Dan Hamlin's denial of this exchange. Zahnd
impressed me as a credible witness.
20 Undoubtedly due to counsel for the Corporation's repeated represen-
tations he nsked legal liability under the sales contract for so testifying in
view of a provision in that contract wherein the partners represented there
were no outstanding legal claims pending against them at the time of sale.
371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing, I find and conclude the
Corporation had notice of the instant unfair labor practice
proceeding against the Partnership pending before the
NLRB
V. Ili. CORPORATION -- THE UNIT, UNION
REPRESENTAI'IVE SIATUS, ANI) REFUSAL TO BARGAIN
ISSUES
The Unlion made its first overtures to secure contract
negotai.;ors with the Corporation in January 1976, a
month after the Corporation assumed operation of the
restaurant Jack Seaver, the Union's organizing director,
went to the restaurant with Union Business Agent Marie
Tidwell. 2' Tidwell introduced Seaver to Tom Hamlin.
Seaver 1told Hamlin the Union had a contract with the
previou.: owners and asked for a date Hamlin could meet
with Bud Tucker, his superior, to discuss the situation.
Hamlin replied they had recently assumed operation of the
restaurant and would like a few weeks to get settled. Seaver
and Tidwell left without further conversation.
A few weeks later Seaver and Tucker went to the
restaurant. Seaver introduced Tucker to T. Hamlin. Tucker
stated the Union had a contract with the previous owners
and would like to renegotiate it rather than pursue legal
action, he suggested that he bring Hamlin a contract
proposal for him to look over. Hamlin replied he was
willing to look over anything. In early February 1976
Seaver and Tucker again stopped by the restaurant and
gave 'r. Hamlin a proposed agreement.
In April 1976 Tucker was replaced by Howard Lawrence
as director of the Union's Reno operations.2 2
In early May, Seaver and Lawrence visited Eugene's.
Seaver introduced Lawrence to T. Hamlin and informed
Hamlin he was Tucker's replacement. Lawrence advised
Hamlin the Union was scheduled to participate in a series
of NLRB hearings, including one against Eugene's, and he
would like to see their differences settled amicably rather
than by litigation; that it was the Union's position it
represented the Corporation's bar and culinary employees
and the Corporation was obligated to bargain with the
Union over a contract covering them. Lawrence stated the
Union was prepared to be flexible in negotiations and
willing to discuss anything. T. Hamlin stated he wanted to
think about the matter and consult with his brother, Dan
Hamlin. Lawrence and Seaver then left.
On June 1, 1976, the Union filed its charge against the
Corporation. Shortly thereafter Seaver and Lawrence again
approached T. Hamlin at the restaurant. Lawrence asked
Hamlin if they were going to be able to get together.
Hamlin asked them to wait a moment, left, and returned
with D. Hamlin. T. Hamlin then stated he had nothing to
discuss with Lawrence since the Union had filed a charge
against the Corporation and requested that Lawrence make
any further contact with Clinton Knolls. 23
e~ Tidwell was formerly employed at Eugene's as a cashier; part of her
duties fior the t nion was to service its members employed at Eugene's
restaurant and bar,
22 Lawrence pre iously headed the Union's Tahoe office and operations;
in April, he was placed in charge of both the Reno and Tahoe offices and
operations
21 Knolls is in charge of the Reno Employers Council.
-z The sole evidence adduced by the Corporation to rebut such
No further contacts between the Union and the Corpora-
tion have occurred.
The Corporation's attack upon the appropriateness of
the unit and the Union's representative status therein was
based upon the applicability of the presumption of
continued union majority status within a unit consisting of
the Partnership's bar and culinary employees after the
Partnership's withdrawal from the multiemployer unit
represented by the Council.
Inasmuch as the Corporation continued the same bar
and culinary workers the Partnership employed prior to the
change in ownership of Eugene's bar and restaurant and I
have entered findings that unit was appropriate for
collective-bargaining purposes, I find the same unit, i.e., a
unit consisting of:
All employees employed by the Corporation in its bar
and culinary operations at Reno, Nevada, excluding all
other employees, guards and supervisors as defined in
the Act,
has been appropriate for collective-bargaining purposes
within the meaning of the Act since December 3, 1975, the
date the Corporation assumed ownership, control, and
operation of the restaurant and bar.
I further find, in the absence of evidence sufficient to
rebut the presumption noted heretofore that the Union
continued to represent a majority of the employees within
that unit since the expiration of the February 15, 1975,
contract, 24 the Union has represented a majority of the
Corporation's employees within the aforesaid unit at all
times subsequent to December 15, 1975.
In view of the foregoing, I find and conclude by T.
Hamlin's failure and refusal to bargain with the Union at
Lawrence's request concerning the rates of pay, wages,
hours, and working conditions of the unit employees that
the Corporation violated Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. At all pertinent times the Partnership and the
Corporation were employers engaged in commerce in a
business affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. At all pertinent times the Union was a labor
organization within the meaning of Section 2(5) of the Act.
3. All employees employed by the Partnership and by
the Corporation in their bar and culinary operations at
Reno, Nevada, excluding all other employees, guards, and
supervisors as defined in the Act, constituted and consti-
tutes a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act.
4. At all times pertinent the Union has represented a
majority of the employees of the Partnership and the
Corporation within the aforesaid unit.
presumption was T. Hamlin's testimony Seaver stated in the course of the
second May 1976 conversation between Lawrence, Seaver, and T. Hamlin
that the Union could not win an election among the employees. I do not
credit that testimony, as it is incredible Seaver would undermine the whole
purpose of the interview and the Union's position vis-a-vis the Corporation.
Seaver was a sophisticated union representative and fully cognizant with the
facts and laws.
372
EUGENE'S
5. At times pertinent Capitaine was a supervisor and
agent of the Corporation acting on its behalf.
6. The Corporation was a successor to the Partnership
within the meaning of the Act and took ownership with
knowledge of the instant unfair labor practice charges
pending before the National Labor Relations Board
against the Partnership.
7. By failing and refusing to bargain with the Union at
its request concerning the rates of pay, wages, hours, and
working conditions of the employees within the aforemen-
tioned unit, the Partnership and the Corporation violated
Section 8(a)( ) and (5) of the Act.
8. The above unfair labor practices affected commerce
within the meaning of the Act.
THE REMEDY
Having found that both the Partnership and its succes-
sor, the Corporation, violated the Act by their refusals to
bargain with the Union at its request concerning the wages,
etc., of the unit employees, I shall recommend that the
latter cease and desist therefrom and take affirmative
action designed to remedy the unfair labor practice.
The affirmative action in question shall be to recognize
the Union as the exclusive collective-bargaining represen-
tative of its bar and culinary employees and to meet and
bargain with the Union at its request concerning their rates
of pay, wages, hours, and working conditions and, if an
agreement is reached, reduce it to writing and sign it, and
post notices to its employees so stating.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
25 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order. and all objections thereto shall be
deemed waived for all purposes.
ORDER 25
The Respondent, Eugene's, Inc., a Subsidiary of Federal
Coal Company, Reno, Nevada, and the Corporation, their
officers, agents, successors, and assigns, shall:
I. Cease and desist from failing and refusing to
recognize and bargain in good faith with the Union as the
exclusive collective-bargaining representative of its em-
ployees in the following unit:
All employees employed by the Corporation in its bar
and culinary operations at Reno, Nevada, excluding all
other employees, guards and supervisors as defined in
the Act.
2. Take the following affirmative action designed to
effectuate the purposes of the Act:
(a) Recognize and, upon request, bargain in good faith
with the Union concerning the wages, rates of pay, hours,
and working conditions of the employees in the above unit
and, if an agreement is reached, reduce it to writing and
sign it.
(b) Post at its Reno, Nevada, facility copies of the
attached notice marked "Appendix." 26 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being signed by an authorized representa-
tive of the Corporation, shall be posted by it immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Corporation
to insure that the notices are not defaced, altered, or
covered by other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps the Corporation has taken to comply with the Order.
26 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 National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeais Enforcing an Order of
the National Labor Relations Board."
373