Furr's Cafeteria, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1969

179 N.L.R.B. 240 (N.L.R.B. 1969)

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furr 's Cafeteria, Inc. Cafeteria No. 16 and Hotel
and Restaurant Employees and Bartenders Union,
Local No. 716 , AFL-CIO. Cases 28-CA-1700 and
28-CA- 1745
October 21, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On April 17, 1969, Trial Examiner George
Christensen issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and Respondent
filed an answering brief.
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 and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner '
Our dissenting colleague would find that
Respondent lacked a good-faith doubt of the
Union's majority status and that, consequently, its
advancement of a contract term shorter than that
proposed by the Union constituted a refusal to
bargain. In our opinion the basis for Respondent's
expressed doubt are not so frivolous as to compel
the conclusion that it was engaging in a pattern of
surface bargaining designed to frustrate any attempt
to reach an agreement Nor do we find other
evidence that Respondent was bargaining in bad
faith or ever actually refused to bargain following
the June 19, 1968, settlement agreement.'
The record reflects, and the Trial Examiner
found, that Respondent did not insist on a contract
termination date coinciding with the end of the
certification year, nor on any hard and fast date.
Rather, it proposed varying periods for the duration
of the contract, extending as much as 6 months
from the end of the certification year, dependent
'Since we find , in agreement with the Trial Examiner, that Respondent's
postsettlement conduct did not violate the Act , we do not reach, and
consequently do not pass upon , the presettlement conduct alleged as
violations of the Act in Case 28-CA-1700
For that reason , cases cited by the dissent , concerning the basis for a
good-faith doubt sufficient to justify a refusal to bargain , are irrelevant
here
upon agreement to other substantive provisions of
the contract. We find nothing in the record to show
that, following the settlement agreement,
Respondent did other than engage in hard
bargaining.
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.
MEMBER BROWN, dissenting.
The Union was certified in August 1967
Negotiations began in October and soon thereafter
the Respondent questioned the Union's continued
majority status. The Respondent amended its
Answer to the Complaint to assert that it had a
good-faith doubt of the Union's majority from and
after December 19, 1967.
The matter of contract duration was first
discussed in February 1968, when Respondent
suggested an expiration date of September 1, 1968,
taking the position that it would not agree to a
contract term which would preclude a challenge to
the Union's majority status shortly after the end of
the certification year; the Union offered a 1-year
term from the date of execution. In March 1968 the
Respondent offered an expiration date of January
15, 1969, and the Union accepted provided
Respondent would agree to a union-shop clause. On
May 8, 1968, the Union struck, and there was no
bargaining between the parties until after the
settlement agreement of June 19, 1968. On July 18
and 19, 1968, the parties met and the Respondent
proposed an expiration date of October 1, 1968, and
a maintenance of membership-dues check ott clause,
while the Union asked for a term expiring April 18,
1969, with a modified union-shop provision. On July
23 the parties met again, with no change in position
On August 13, the Union offered to accept the
Respondent's maintenance of membership offer if,
inter alia, Respondent agreed to an expiration date
of September 15, 1969, and the next day (August
14) the Respondent offered an expiration date of
January 15, 1969.
My colleagues now find, in agreement with the
Trial Examiner, that the Respondent's insistence on
such limited term during the period after June 19,
1968, was taken in good faith. With this I cannot
agree For this was a certified union and its majority
was presumed to continue in the absence of a
reasonable basis for questioning such status. This
was true after the June 19 settlement as well as
prior thereto. If only the Respondent's conduct after
June 19 may be considered, it is apparent that the
Respondent was questioning the Union's majority
179 NLRB No. 35
FURR'S CAFETERIA
while asserting no grounds for its claim of doubt.'
This, alone, renders questionable its bona /ideti in
taking the position which it did Furthermore, the
employee's representative is entitled to a reasonable
period of bargaining after a settlement agreement
has been entered, and the period here was
insufficient.' If, on the other hand, the events after
the settlement agreement may be considered in light
of the presettlement conduct of the Respondent -- a
view which is clearly permissible under
well-established principles' - then the grounds on
which the Respondent claimed to doubt the Union's
continued majority are apparent and their validity
may be evaluated
The Trial Examiner found that the Respondent's
belief that the Union no longer represented a
majority of the employees was predicated on three
grounds: (1) the Respondent sometime in
mid-December had received a letter signed by four
employees claiming that a majority of the employees
wished to decertify the Union; (2) Respondent had
knowledge of an extremely high turnover of
employees in the unit ; and (3) only seven employees
joined the strike called by the Union on May 8,
1968. 1 am of the opinion that these grounds
furnished no reasonable basis for the Respondent to
conclude that the Union had lost its majority status.
As for the employees' alleged wish to decertify the
Union, the Respondent had only the word of 4
employees in a unit of approximately 48 and
nothing more. Particularly in light of the Union's
substantial election victory just about 3 1/2 months
earlier,' this can hardly be said to be a cogent
indication that the Union had lost its majority
support.
With regard to the allegedly high turnover of
employment, the Board and the Courts have long
rejected this as a ground for rebutting the
presumption that after the certification year the
incumbent's majority status continued.' Indeed, it
has been stated many times that new employees will
be presumed to support a union in the same ratio as
those whom they have replaced.' Moreover, the
Trial Examiner makes no specific finding as to how
many of the employees who originally voted in the
election were no longer employed when Respondent
is said to have reached its doubt as to the Union
majority status, so that even the existence of the
essentially high turnover has not been established
'That it was claiming such a doubt is apparent throughout, and is
evidenced in the postsettlement period at least by its filing of its RM
petition in October 1968
'W B Johnston Grain Co 154 NLRB 1115, enfd 365 F 2d 582 (C A
10)
'Northern California District Council of Hodcarriers and Common
Laborers of America , AFL-CIO (Joseph Mohamed , Sr. an Individual,
d/b/a Joseph's Landscaping Service) 154 NLRB 1384
'Of the 48 employees eligible to vote, 28 voted for the Union, only 6
against and 9 were challenged
'N L R B v The Little Rock Downtowner Inc. 341 F 2d 1020 (C A
8), and cases cited therein Cf Celanese Corporation of America, 95
NLRB 664, 671-674
'See, for example, John S Swift Company Inc. 133 NLRB 185, enfd
302 F 2d 342 (C A 7), National Plastics Products Compant 78 NLRB
241
Finally, with regard to the May 8 strike and the
fact that only 7 employees walked out, there are
many personal reasons other than disenchantment
with their collective-bargaining representative which
cause employees to respond in this fashion.'
Respondent's known hostility to the Union, its
unlawful interrogation of its employees as to their
union activities, and its threatening to close its doors
if picketing occurred could readily have coerced
employees to withhold or withdraw support from the
Union.
In view of the foregoing and on the record as a
whole, I find that the Respondent has advanced no
valid grounds to question the Union's continued
majority status and hence its insistence upon a
contract of such limited duration in order that
Respondent might again test the Union's majority'"
constituted a failure to bargain in good faith in
violation of Section 8(a)(5) and (1) of the Act both
after and before June 19, 1968.
699, 706, affd 175 F 2d 755 (C A 4)
'Cf Celanese Corporation of America 95 NLRB 664, 674
"Obviously the term of a contract is a subject of bargaining and the
Respondent was not obligated to accept the precise term offered by the
Union The issue before us is not so much the content of the Respondent's
proposals , per se , as their reasonableness in the circumstances , i e , the
validity of Respondent ' s reasons for advancing them
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Trial Examiner On May 7,
1968,' Hotel and Restaurant Employees and Bartenders
Union Local No 716, AFL-CIO (Union) filed a charge in
Case 28-CA-1700 alleging that Furr's Cafeteria, Inc.,
Cafeteria No. 16 (Respondent) had violated Section
8(a)(1) and (5) of the National Labor Relations Act, as
amended (Act) by maintaining a surveillance of its
employees' union activities, circulating a petition among
them to withdraw from the Union, unilaterally granting
wage increases and refusing to bargain On June 7,
Region 28 of the National Labor Relations Board (Board)
informed the Respondent that as a result of its
investigation of the charge it had concluded that
Respondent had violated Section 8(a)(1) and (5) of the
Act by interrogating employees about their union
activities and by granting unilateral wage increases and
proposed that the matter be disposed of by Respondent's
execution of a settlement agreement On June 19 the
Respondent executed such an agreement 2 It provided,
inter a/ta, that the Respondent would post and comply
with all the terms and provisions of a Notice to its
employees which provided that the Respondent
I Would not question its employees about their union
activity, and
2 Would bargain collectively in good faith with the
Union
On July 23 the Union filed a second charge (Case
28-CA-1745) alleging that subsequent to the execution of
the settlement agreement the Respondent had committed
new and additional violations of Section 8(a)(1) and (5) of
the Act, i.e , by stating to its employees that an election
would be held in August and the Union would no longer
'All dates refer to 1968 unless otherwise indicated
'The Union executed the agreement on June 12 It was approved by the
Regional office on June 19
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be their representative, by refusing to bargain collectively
in good faith with the Union over the wages, hours and
other conditions of employment of its employees, by
demanding a contract termination date of October I,
1968, or sooner and by other acts, additionally asserting
that by such acts the Respondent had violated the
settlement agreement
On September 18 the Regional Director for Region 28
advised the Respondent that as a result of his
investigation of the charge in Case 28-CA-1745 he had
determined that the Respondent engaged in a refusal to
bargain subsequent to the execution of the settlement
agreement in Case 28-CA-1700 and that the allegations of
the charge in Case 28-CA-1745 had merit and therefore he
was setting aside the settlement agreement, consolidating
the two cases and issuing a formal complaint based
thereupon
The complaint issued on September 26 alleging that
Respondent violated Section 8(a)(I) of the Act on various
dates subsequent to November 7, 1967, by interrogating
its employees concerning their union activities,'
membership and desires and those of other employees, by
threatening its employees with plant closure if the Union
picketed its premises, by making statements which gave its
employees the impression it was maintaining a
surveillance of their union activities, by threatening
employees picketing its premises with arrest, by telling its
employees it would not sign a contract with the Union,
that an election would be forthcoming shortly at which the
Union would be decertified, and that further support of
the Union was futile, and by telling its employees the
Union would not get them anything in bargaining and
Respondent would give them more than the Union could
obtain for them The complaint further alleged that
Respondent violated Section 8(a)(5) (and (1)) of the Act
on various dates subsequent to November 7, 1967,' by
unilaterally changing wage rates, by negotiating in bad
faith and with no intention of entering an agreement with
the Union as evidenced by the 8(a)(1) acts just set forth
and by insisting on no union security provision and an
unreasonable contract termination date of October 1,
1968, in order to test the Union's majority representative
status as soon as possible The complaint also alleged
violation by the Respondent of the June 19 settlement
agreement and that a May 8 strike by the Union was
caused and prolonged by Respondent's unfair labor
practices
On October 8 the Respondent filed its answer to the
complaint denying commission of the unfair labor
practices alleged and any violation of the settlement
agreement.' By its answer Respondent admitted the
jurisdictional facts set out in the complaint, that the
Respondent was an employer engaged in commerce and
the Union was a labor organization within the meaning of
the pertinent provisions of the Act, that at all times
pertinent Personnel Director Robert C Hurmence,
Regional Supervisor Harold Andrews and Manager
Kenneth Rue were its agents acting on its behalf within
'At the opening of the hearing the Examiner permitted the General
Counsel to add a subparagraph (g) to paragraph 10 of the complaint
alleging an additional unlawful interrogation by Respondent's manager,
Kenneth Rue, of applicants for employment regarding their union
membership , affiliation and sympathies on or about May 10 and an
addition at the end of subparagraph 10(a) of the words "and applicants for
employment "
At the close of the General Counsel' s presentation of his direct case, the
Examiner permitted him to amend subparagraph 15(d) of the complaint to
substitute the date January 15 for July 23
the meaning of the pertinent sections of the Act, that a
unit consisting of all employees of the Respondent at its
Cafeteria No 16 in Santa Fe, New Mexico, exclusive of
musicians, professional employees, watchmen, guards and
supervisors as defined in the Act constituted a unit
appropriate for the purpose of collective bargaining within
the meaning of the pertinent provisions of the Act, that on
August 4, 1967, a majority of its employees within that
unit by a secret ballot election conducted by the Board
designated and selected the Union as their exclusive
collective-bargaining representative for the purpose of
bargaining collectively with the Respondent concerning
their wages, hours and conditions of employment, that on
August 14, 1967, the Board so certified, that at all times
since August 14, 1967, the Union has been the exclusive
collective bargaining representative of its employees in the
unit,' that it participated in a series of contract
negotiation meetings with the Union between October
1967 and July 1968, and that on May 8 a small number of
employees in the unit went on strike and have continued
on strike at all times subsequent.
The issues presented by the complaint and answer as
amended are whether the Respondent by its named agents
on or about the dates specified at its Santa Fe restaurant
(1) interrogated employees and applicants concerning their
and others' union activities, membership and desires, (2)
threatened them with plant closure if the Union picketed
its premises. (3) made statements giving them the
impression their union activities were under surveillance,
(4) threatened union pickets with arrest, (5) told
employees Respondent would not sign a contract with the
Union, (6) told employees an election would occur shortly
at which the Union would be decertified and their further
support of the Union was futile, (7) told its employees the
Union would not get them anything and that Respondent
would give them more than the Union could obtain for
them, (8) gave them wage increases without prior notice to
or consultation with the Union, (9) insisted on no union
security and an unreasonable contract expiration date, and
(10) if so, whether by such acts or conduct Respondent
violated Section 8(a)(1) and (5) of the Act and either
caused or prolonged the May 8 strike called by the Union.
On October 21 the Respondent asserted that the
complaint was vague and requested the Regional Director
to furnish the names of all employees alleged to have been
unlawfully interrogated, threatened, intimidated, and
coerced by the Respondent, the names of all employees
whose wage rates were alleged to have been increased
unlawfully, the exact date of each such act, the language
of each alleged unlawful statement constituting the
unlawful interrogation, threat, intimidation, or coercion,
the names of Respondent's agents who negotiated in bad
faith with the Union, the dates, times, and places where
such bad-faith bargaining took place, the names of the
persons to whom the alleged bad faith statements were
'Respondent amended its answer to deny the complaint amendments set
out above
'At the opening of the hearing the Examiner permitted the Respondent
to amend paragraph 5 of its answer to change its admission that the Union
was the duly selected exclusive representative of its employees in the unit
at all times following the Board certification to a denial of such
representation accompanied by an affirmative statement that at all times
since December 19, 1967, the Respondent had a good -faith doubt that the
Union continued to represent a majority of its employees in the unit and
filed a petition in Case 28-RM -17 on October 21, 1968 , for an election to
determine whether the Union continued to enjoy such majority status, but
such petition was dismissed by Region 28 on October 29, 1968, because of
the pendency of this proceeding
FURR 'S CAFETERIA
addressed, the names of Respondent's agents who
questioned the Union's majority status without a
good-faith doubt thereof, and the names of the persons to
whom such doubt was expressed The request was referred
to Examiner Bennett for ruling He denied the request on
October 5 On November 5 the Respondent asked leave
from the Board to appeal the ruling On November 27 the
Board denied that request. The Respondent renewed the
request at the opening of the hearing (December 3) It was
denied '
The Examiner conducted a hearing on the issues at
Santa Fe, New Mexico on December 3, 4, 5 and 6 All
parties appeared by counsel and were afforded full
opportunity to introduce evidence, examine and
cross-examine witnesses, argue orally and file briefs. The
General Counsel and the Respondent filed briefs
Based on his review of the entire record, observation of
the witnesses and perusal of the briefs, the Examiner
enters the following
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION
As noted heretofore, the Respondent in its answei
conceded the jurisdictional facts and the conclusions that
it was an employer engaged in commerce and the Union
was a labor organization within the meaning of the Act
The Examiner therefore finds and concludes that the
Respondent is an employer engaged in commerce and in a
business affecting commerce and the Union is a labor
organization within the meaning of Section 2(2),(5), (6)
and (7) of the Act.
II THE UNFAIR LABOR PRACTICES
A Preluntnut i Findings
The Board conducted an election among Respondent's
employees in the unit heretofore described on August 4,
'It appeared to the Examiner that since the parties and their witnesses
were all present for the hearing and prejudice to the Respondent could be
avoided by its plea of surprise as to any evidence offered by the General
Counsel and request for time to prepare therefor, the best interests of all
concerned would be served by proceeding on that basis , and he so ruled
He also noted that the complaint appeared sufficiently to apprise the
Respondent of the dates , places, agents and acts whereby it was alleged to
have violated the Act , that the Board has long followed the policy of not
naming before trial the employees against whom the alleged discriminatory
acts were directed to avoid their intimidation before trial, that much of the
information sought was evidentiary in nature, that neither the Act or the
Board 's rules and regulations provide for the use of discovery procedures
before trial , and that both the courts and the Board have held that denial
of discovery does not violate due process N L R B v Movie Star, 361
F 2d (C A 5), NLRB v Vapor Blast Mfg. 287 F 2d 402 (C A 7),
N L R B v Chambers Mfg. 278 F 2d 715 (C A 5), N L R B v Globe
Wireless. 193 F 2d 748, 751 (C A 9), Plumbers & Steanifrtters (Beard
Plumbing Co ). 128 NLRB 398, 400 Also see Trojan Freight Lines. Inc v
N L R B. 356 F 2d 947 (C A 6), wherein it was held that such denial is
within the discretion of the Board, and N L R B v Safewav Steel, 383
F 2d 273 (C A 5), where it was held that in any event such denial is not
prejudicial error Respondent ' s named agents were present during the
General Counsel ' s presentation of his case in chief No surprise was
claimed during such presentation After the General Counsel rested his
case (during the third day of hearing), Respondent requested a recess He
was unable to identify any evidence which took him by surprise The
Examiner nevertheless offered to recess the hearing to the following
morning, which would have afforded the balance of the day (plus the two
evenings following the close of hearing the previous 2 days ) to prepare its
rebuttal While claiming prejudice in not receiving more time, Respondent
nevertheless elected to proceed immediately with its rebuttal and did so
243
1967 The Union received 28 votes of the 43 votes cast (48
were eligible to vote) The Board's certification issued on
August 14, 1967
Face-to-face negotiations commenced on October 17,
1967, and continued on December 4 and 5, 1967, after an
exchange of proposed contracts and receipt by the Union
of bargaining information requested from the Respondent
The parties met again on December 18 and 19, 1967,
January 15 and 16, February I, 2, and 28, and April 8
When the April 8 meeting broke up, it was with tentative
agreement on all contract issues but one, union security
On this, Respondent offered maintenance of membership
plus dues checkoff' and the Union proposed union shop
with no dues checkoff Respondent left the meeting with a
promise to consult with his superiors to secure their
reaction to the union position
On April 15, Respondent advised the Union (through
the federal mediator) that it would not go beyond its offer
of maintenance of membership and dues checkoff
On May 7 the Union filed its charges in Case
28-CA-1700 and on May 8 called a strike against
Respondent Approximately seven employees left their
jobs to join the strike
On June 19 the Respondent executed an agreement
settling the charges
On July 19 negotiations resumed, and continued on
July 23 The parties were unable to reconcile their
differences
On July 23 the Union filed its charges in Case
28-CA- 1745
The parties met for the last time in negotiations on
August 13 and 14, again without resolving their
differences.
During the year preceding the latter date, which
coincidentally marks the end of the certification year,
there had been almost a 500 percent turnover of
employees within the unit
B The Alleged Section 8(a)(l) Violations
Harold Andrews
It is alleged that Respondent violated Section 8(a)(1) of
the Act by the following actions of its agent Harold
Andrews
I Interrogation of employees of Respondent regarding
their and other employees' union membership in
December 1967, January 1968, and on or about April 11
2 Statements to employees of Respondent in April
a. That Respondent would lock its doors if its premises
were picketed,
b. Which gave them the impression their and other
employees' union activities were under surveillance;
c. That there was going to be another election in
August which would result in the Union's decertification,
that Respondent was not going to sign a contract and
continued support of the Union was futile,
d That the Union would not get anything for them but
Respondent could and would.
3 A threat on May 10 to arrest employees of
Respondent for picketing its premises
4. A repeat on May 10 of the conduct set out in 2,b,
and 2,c, above.
5 A repeat on June 20 of the conduct set out in 2,c,
and 2,d, above 8
This is the only allegation of independent 8(a)(I) violation after the date
of execution of the agreement settling the charges in Case 28-CA-1700
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These allegations will be treated seriatim
1 The alleged December, January, and April
interrogations
Andrews and employee Angela Miller confirmed that
sometime between September and December of 1967
Andrews overheard Miller and another employee
discussing a recently held union meeting and somewhat
playfully asked Miller if she had been invited to attend it,
at which Miller laughed and replied in the negative.
Andrews ended the exchange with the remark that he
guessed they did not like her enough. Andrews and Miller
explained that her vote in the August 1967 election was
challenged by the Union and that she had several times
approached Andrews and spoken to him about the Union
and its plans and program.'
This evidence fails to establish that the conversation
took place within 6 months prior to the Union's filing of
its first charge (May 7) and was more in the nature of a
joking exchange than an employee interrogation. The
Examiner therefore will recommend that this allegation of
the complaint be dismissed (paragraph 10(a), re an alleged
December 1967 interrogation).
The record does not disclose any evidentiary support
for the paragraph 10(a) allegation of a January' 1968
interrogation. It will be recommended that this allegation
likewise be dismissed.
As to the alleged April interrogation, Andrews
acknowledged that on about April 28 while passing near
her work station he asked employee Barbara Martinez in
the presence of employees Gloria Apodaca and Jesse
Martinez if she had received a letter from the Union
regarding its last meeting, that she replied that she had
not, and that he then grinned and told her not to worry
about it. Andrews volunteered that he asked her the
question because he wanted to find out if the employees
were going to have an opportunity to decide whether to
accept or reject the Respondent's April contract offer.
While Andrews thus by his own admission intended to
question Martinez concerning union activities, his question
was preliminary and no interrogation resulted due to her
negative reply. The exchange was fragmentary and does
not appear of sufficient substance to support a finding of
an unlawful interrogation. The Examiner will recommend
that this allegation be dismissed (Paragraph 10(a), re
April 11).
2. The alleged April threat, surveillance, intimidation,
and promise
About a month before the strike commenced (May 8),
Richard Griego and Delfino Romero met with Andrews
and Rue in the back dining room of Respondent's
restaurant after completing work for the day, at Andrews'
request. A third supervisor, Harold Hansen, was also
present. Andrews informed Griego and Romero that six
employees had voted against the Union at the election,
that he .knew who the six were, and that he knew Griego
and Romero were not among them. He criticized the two
for voting for the Union, said they were just sheep, and
that they would find out later what the Respondent would
do for them He also told them that if the Union ever put
"This finding is based upon the mutually corroborative testimony of
Angela Miller and Harold Andrews.
up a picket line at Respondent's premises, it would close
its doors, turning his hand as if in the act of locking a
door while saying "click-click.""
The Examiner concludes that Respondent interfered
with, restrained and coerced Griego and Romero's
exercise of their Section 7 rights and violated Section
8(a)(1) of the Act by Andrews' telling Griego and Romero
the Respondent would lock its doors if any picketing
occurred at its premises, since this was a threat of a
lockout if the employees engaged in their right to picket in
support of their requests for changes in their wages, rates
of pay and working conditions.
Andrews' recitation of his knowledge concerning the
identity of the six employees who voted against the Union
(and therefore the identity of the others who voted for it)
does not necessarily imply that such knowledge was
derived from any surveillance of the union activities of the
employees in question. The six may have volunteered to
him the information that they voted against the Union;
they may by openly expressing antiunion sentiments
within his hearing have led him to that conclusion; etc
The Examiner thus concludes that such recitation" does not
give the impression that a surveillance of its employees'
union activities was being maintained by the Respondent
and he shall recommend dismissal of such allegation
(paragraph 10(c), re April 10).
Neither Griego nor anyone else testified to any April
statements by Andrews regarding an election in August at
which the Union would be decertified, nor a reference to a
contract, nor a statement that continued support of the
Union was futile. The General Counsel argues that
Andrews' statement to Griego that the Respondent would
lock its doors if pickets appeared contains grounds for
inferring that continued support of the Union was futile.
The Examiner disagrees The Examiner therefore finds
that the General Counsel failed to proffer evidence in
support of paragraph 10(e) of the complaint with regard
to any April 10 incident and will recommend dismissal
thereof.
Andrews stated to Griego and Romero that "later on
we would find out what the cafeteria would do for us." In
the Examiner's judgment this language is ambiguous and
he is unable to find an implied promise of benefits that
Respondent will supply some time in the future that the
Union will bey unable to secure. The Examiner concludes
that the April 10 portion of paragraph 10(f) of the
complaint is not supported by sufficient probative evidence
to warrant a favorable finding thereon and will
recommend its dismissal.
I
3. The alleged May 10 threat
Andrews and employee Jennie Arguello confirm that
shortly after the strike started on May 8 Andrews
addressed Arguello on the picket line (Arguello was the
picket captain) and stated he would call the police.
However, Arguello conceded that Andrews prefaced that
statement with a request that the pickets cease picketing
in a manner which prevented customers from entering and
leaving the cafeteria by its front door and said he would
call the police if they did not comply with that request
(they did comply). To threaten action he was legally
entitled to take to assure free passage into and out of the
"This finding is based upon the undenied and uncontradicted testimony
of Griego Hansen and Romero were not called to testify Andrews and
Rue contented themselves with a denial of any recollection of the
conversation , which is not a denial that it occurred.
FURR'S CAFETERIA 245
cafeteria is not violative of Section 8(a)(1) of the Act and
the Examiner will recommend dismissal of this allegation
on that ground (paragraph 10(d) of the complaint)
4 The alleged May 10 surveillance and intimidation
when the Respondent executed that agreement, and most
likely took place shortly thereafter
Inasmuch as the evidence as found above fails to
substantiate the allegations of paragraphs 10(e) and (f) as
to their June 20 allegations, it shall be recommended that
they be dismissed
Respondent called a meeting of its employees at the
cafeteria not long after the strike started to explain its
stand, and particularly its reasons for not agreeing to the
Union's union shop demand, which was the sole issue
preventing agreement prior to the commencement of the
strike.
Hurmence acted as spokesman at the meeting, as he at
all times was in charge of the contract negotiations for the
Respondent The meeting apparently occurred during the
week of May 20 to 24, since Hurmence read an
advertisement Respondent inserted in the May 17 local
newspaper setting out its position
None of the employee testimony at the hearing
developed any remarks which in the judgment of the
Examiner could support a finding that Hurmence of any
other management official in attendance gave the
impression the Respondent was maintaining a surveillance
of its employees' union activities, views, or sympathies.
Hurmence, not Andrews, in response to an employee
inquiry, stated an election could occur after the end of the
certification year (i.e , after August 14, 1968) However,
he did not state that an election would occur
No testimony was offered to any statement, by
Hurmence or any other management representative
present, that Respondent would not execute a contract
with the Union
Hurmence spoke of the picketing, explained the
Union's right to seek its objective (union shop) by striking
and picketing, stated it was Respondent's right to adhere
to its position (maintenance of membership) and that
Respondent was going to stick to that position Such
statement of position was within Respondent's free speech
privilege Certainly such expression carries the implication
that continued support of the Union's strike objective
would not be successful, but it is not unlawful On the
basis of the foregoing, the Examiner will recommend that
paragraphs 10(c) and 10(e) of the complaint be dismissed
(with reference to the May 10 allegations thereof).
5 The alleged June 20 intimidation and promise
Another employee meeting occurred in June, when a
film was shown on sanitation . Following the film showing,
Andrews addressed the employees in attendance regarding
certain picketing incidents, a rumor regarding
replacements, and to explain the agreement Respondent
had signed on June 19 settling the first charge (Case
28-CA-1700). With regard to the picketing, Andrews
stated that he had received complaints of picket conduct
from several employees and cautioned them to avoid any
unnecessary contacts and to report any future incidents to
him. He advised them the Union had a right to picket the
cafeteria as long as it wanted to and the cafeteria had a
right to continue to operate its business, and would
continue to do so As to replacements, he assured them
the Respondent had no intention to replace those working
As to the settlement agreement, he commented, inter alia,
that the Respondent had been found in violation of the
Act by granting wage increases and would have to refrain
from granting increases." Since part of Andrews' remarks
referred to the settlement agreement, it is clear this
meeting occurred subsequent to June 19, a Wednesday,
Kenneth Rue
It is alleged that Respondent violated Section 8(a)(1) of
the Act by the following actions of its agent Kenneth Rue
1 A February 11 interrogation of employees of
Respondent regarding their and other employees' union
membership, activities, and desires
2 An interrogation about May 10 of employees of
Respondent and applicants for employment by
Respondent concerning their and others' union
membership, activities, and desires
3 Statements about June 16 to employees of
Respondent which gave them the impression their and
other employees' union activities were under surveillance.'
These allegations will be treated seriatim
1. The alleged February 11 interrogation
On about February 11, Rue asked employee Geraldine
Roybal if she and Barbara Martinez had attended the
union meeting the preceding night and if Roybal knew
Jack Byers, the Union's business representative Roybal
replied in the negative to the first question and in the
affirmative to the second The exchange took place in the
course of a running conversation which took place while
both were working at the salad bar Roybal stated they
usually chatted while so employed Roybal's negative
response to the first question precluded any interrogation
as to what transpired at the meeting and the latter
question appears wholly innocuous For these reasons, the
Examiner shall recommend that this allegation of the
complaint (paragraph 10(a), as to a February 11
interrogation) be dismissed
2 The alleged May 10 interrogation
The Union called its strike and commenced picketing
on May 8 Shortly thereafter, Gloria Garcia was
interviewed by Rue for employment No pickets were
present at the time of the interview, so Rue informed
Garcia there was a strike on and the Union was picketing
the cafeteria and asked her if she was in the Union,
whether she would work behind a picket line, i e , was she
willing to cross the Union's picket line. She replied that
she was willing to do so. Rue also asked her if her
husband was working and in the Union, and she replied
that he was not working due to a back injury, which was
why she needed a job badly
This appears no more than the seeking of an assurance
that the prospective employee would report for work
despite the fact a strike was in progress and an inquiry
into her husband's potential availability for employment
"This finding is based upon the mutually corroborative testimony of
Andrews, Rue, and employees Angela Miller , Ercilia Montez and Jessie
Martinez The testimony of employee Gloria Garcia and Ramon Romero
to additional remarks by Andrews re another election in August, the
futility of paying union dues , etc, is discredited in view of the uniform
denial of the five persons earlier named that such remarks were made
Garcia was a confused and contradictory witness and Romero's testimony
was completely unsupported by anyone else in attendance at the meeting
"See fn 8, /bid
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and similar willingness. For this reason, it shall be
recommended that this paragraph of the complaint be
dismissed (it was added by oral amendment at the opening
of the hearing).
3. The alleged June 16 statements
On about June 16 Ramon Romero, Rue and a third
person Romero was unable to identify were in Rue's
office. Romero testified that Rue talked to him about
washing pots, told him he was not doing the job very well
and that he was going to keep Romero on pots until he
could do the work efficiently. Shortly thereafter,
according to Romero, the unknown third person said
Romero had been to see Jack Byers, the Union's business
agent. Romero asked him to prove it and he said he could
not do so.
The Examiner shall recommend that this allegation of
the complaint be dismissed for failure to provide
evidentiary support of it (paragraph 10(c) as to an alleged
June 16 incident).
C. The Alleged 8(a)(5) Violations
1. The unit and union majority status
As noted heretofore, there is no dispute between the
parties that a unit of all employees of the Respondent at
its Cafeteria No. 16 in Santa Fe, New Mexico exclusive
of musicians, professional employees, watchmen, guards
and supervisors as defined in the Act constitutes an
appropriate unit within the meaning of Section 9 of the
Act and the Examiner so finds.
It is likewise undisputed that on August 14, 1967, the
Union was certified by the Board as the exclusive
collective-bargaining representative of the employees
within that unit and from that date to August 14, 1968,
acted as their representative in collective bargaining with
the Respondent over their wages, hours and working
conditions.
2. Unilateral wage increases
The parties stipulated to wage increases made effective
in November and December 1967 as well as January,
February, and April 1968. Respondent conceded it neither
notified nor bargained with the Union prior to placing the
increases into effect.
There were five raises in November, four of 5 cents per
hour and one of 10 cents; two raises in December, one of
5 cents and the other of 10 cents; one in January of 5
cents; six in February, three of 5 cents and three of 7
cents; ten in April, three of 5 cents, two of 10 cents, one
of 15 cents and four of 25 cents. All the April increases
were placed into effect on April 21, after the bargaining
impasse and shortly before the strike.
Rue explained that all the February increases (six in
number) were to bring Respondent's minimum wage
structure into compliance with the Fair Labor Standards
Act, which required a $1.15 minimum wage as of that
time. He stated he was directed to raise all employees
receiving less than that rate up to the required minimum.
Company records disclosed that several employees earning
less than $1.15 at the time were not increased to the
minimum. Rue pleaded oversight and negligence to this.
He attributed the bulk of the increases, 16 in number,
to changes in job content, which resulted because of rapid
promotion caused by the excessive turnover normal to the
cafeteria business.
As to two 5-cent increases in April to Jennie Arguello
and A. M. Torres, Rue attributed their increases to
improved job performance, i.e, merit.
No evidence of an established company policy
concerning merit increases was developed; in fact, Rue
testified that while the Respondent granted merit increases
prior to the union certification, it ceased such policy
thereafter.
The Examiner therefore finds that at least as to the
Arguello and Torres April increases, the Respondent by
failing to notify and discuss such proposed increases with
the Union prior to their effectuation, the Respondent
failed to bargain in good faith and thereby violated
Section 8(a)(5) and (1) of the Act. In view of this finding
the Examiner finds it unnecessary to make a specific
finding as to the balance of the increases.
3. The alleged failure to bargain in good faith
After meetings, exchanges of documents, and telephone
conferences dating from August 24, 1967, to April 8,
1968, the parties reached tentative agreement on all issues
but one - union security. At the April 8 meeting the
Respondent offered a contract expiration date of January
15, 1969, and a maintenance of membership-dues checkoff
union security provision The Union countered with an
offer to accept the proposed January 15, 1969, expiration
date (and all other provisions tentatively agreed upon -
including, apparently, the wage schedule then in effect)
and do without dues checkoff if the Respondent would
agree to union shop as the union security provision.
Hurmence agreed to take this back to his principals and
let the Union know if they would so agree. On April 15
the Union was notified that the Respondent would not
agree to union shop. Faced with this impasse, on May 8
the Union called a strike and commenced to picket the
Respondent's establishment. Seven employees left their
jobs to join the strike.
Prior to the fateful April 8 meeting, the parties had
reached agreement on approximately 31 issues, all
requested information was furnished with reasonable
promptness, the parties met at reasonable times and
places, and at its close only remained at odds over one
issue. On these facts it is not possible to find that the
Respondent, at least up to the date of strike, did other
than engage in hard bargaining.
Tracing the history of the bargaining on the crucial
issues, contract duration and union security, it appears
that with reference to the latter, the original union
proposal submitted to the Respondent in September 1967
provided for union shop and dues checkoff with a blank
for contract expiration date. The Respondent's
counterproposal submitted later that month provided for
maintenance of membership, a blank for contract
expiration date, and made no provision for dues checkoff.
In January the Respondent added a dues checkoff
provision to its offer. Both parties held fast thereafter on
their respective union security positions, except that on
April 8 the Union offered to forget dues checkoff if it
could get a union shop agreement.
As to contract duration, this was not discussed until
February. At that time the Respondent proposed an
expiration date of September 1, 1968, and the' Union
countered with a proposed expiration date one year from
the date of execution of any contract. In March,
Respondent proposed an October 1, 1968, expiration. The
Union adhered to its 1-year contract position. As recited
FURR 'S CAFETERIA 247
heretofore, on April 8 as part of its package proposal the
Respondent offered an expiration date of January 15,
1969, and the Union accepted, provided the Respondent
would agree to union shop.
The Union struck on May 8 and filed its charges in
Case 28-CA-1700 the previous day No bargaining took
place until after the Respondent's execution of the June 19
agreement settling that charge The parties next met on
July 18 and 19, July 23, and August 13 and 14
At the July 18 to 19 meeting, the Respondent reverted
back to its March proposals for an October 1, 1968,
contract expiration date and maintenance of
membership-dues checkoff, plus small wage increases to
certain classifications The Union countered with an offer
to exclude six employees from the unit if the Respondent
would accept a union shop provision, and a 9-month
agreement (to expire April 18, 1969). Both parties
discussed the former, agreed it was unlawful, and the
Union then proposed a modified union shop. No
agreement was reached The same deadlock occurred at
the July 23 meeting At the August 13 meeting the Union
offered to accept the Respondent's maintenance of
membership offer if the Respondent would grant an
immediate wage increase of 10 cents to all employees,
another 10-cent increase on February 1, 1969, and a
contract expiration date of September 15, 1969. On
August 14 the Union reduced its February wage proposal
to 5 cents Respondent stated it would renew its April 8
offers of a January 15, 1969, expiration date and a
maintenance of membership-union security provision, but
that it would not grant the increases proposed
Negotiations then broke off and have not resumed since
By April Hurmence had reached the belief that the
Union no longer represented a majority of its employees
within the unit, he based this belief on his knowledge of
the extremely large turnover of employees in the unit, in
excess of 500 percent per annum, a letter he had received
in December 1967 signed by four employees stating that a
majority of the employees wished to decertify the Union,
and reports from the supervisors on the scene. Sometime
between January and April he expressed this doubt to the
union negotiators, who replied defensively. When only
seven employees joined the strike, his belief became a
certainty He took the position that he was not going to
agree to a contract term which would preclude a challenge
of the Union's majority status within a reasonable time
(Respondent filed a petition seeking an election to
determine the Union's majority status on October 21,
1968, in Case 28-RM-17, which was dismissed due to the
pendency of this proceeding)
The General Counsel contends that Respondent took
inconsistent positions on union security through the
negotiations and thereby demonstrated its bad-faith
bargaining The evidence is to the contrary. From the time
of its first contract proposal in October 1967 to the last
meeting of the parties in August of 1968 the Respondent
offered a union security provision providing for
maintenance of membership, i.e , any employee who
joined the Union voluntarily during the term of the
contract would be required to maintain his membership in
the Union for the balance of the contract term. The
Union, on the other hand, started with union shop and by
August of 1968 offered to accept maintenance of
membership (provided certain wage demands were met)
As to contract duration, prior to the strike the parties
tentatively agreed on a January 15, 1969, contract
expiration date; true, they reverted back to earlier
positions when bargaining resumed in July, but even then
at one point were only three months apart (the Union
offered to accept a contract expiring in April of 1969 at a
July meeting, Respondent offered a contract expiring in
January of 1969 at an August meeting).
Section 8(d) of the Act clearly provides that while it is
the obligation of an employer and the Union representing
his employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other
working conditions of the affected employees, they are not
compelled to agree to proposal or make a concession,
several courts and the Board have pointed out that
employer insistence on either limited or no form of union
security comes within the purview of the latter portion of
Section 8(d) just quoted N L R B v Gopher Aviation,
402 F 2d 176 (C A 8); Capitol Aviation v N L R B, 355
F 2d 875 (C.A 7), N L R B v Southern Coach and Body
Co , 336 F 2d 214 (C.A 5), Intercontinental Eng and
Mfg Co , 151 NLRB 1441; Star Expansion Industries,
164 NLRB No 95
In two of those cases, insistence on a contract term
ending with the certification year also was held not to
constitute bargaining in bad faith (Capitol Aviation v
N L R B, ibid, N L R B v. Southern Coach and Body
Co , ibid )
Based on the foregoing, the Examiner finds and
concludes that the Respondent, while engaging in hard
bargaining, did not bargain in bad faith in violation of
Section 8(a)(5) and (1) of the Act, either before or after
execution of the June 19 settlement agreement but to the
contrary met and bargained in good faith with the Union
throughout the certification year. The Examiner therefore
shall recommend that those portions of the complaint
alleging a refusal to bargain on the part of the
Respondent be dismissed
4. The alleged unfair labor practice strike
The Examiner has entered findings above that at the
last meeting prior to the May 8 strike the parties reached
an impasse over the issue of union security and the Union
thereupon struck in order to bring economic pressure to
bear to cause the Respondent to yield to its proposal on
that issue The Examiner based upon that finding and
those preceding with regard to the 8(a)(5) allegation finds
that the May 8 strike was neither caused nor prolonged by
any unfair labor practice committed by the Respondent
but rather was an economic strike and therefore will
recommend that the portion of the complaint so alleging
be dismissed
5 The effect of the finding of no postsettlement
violation
The Regional Director for Region 28 set aside the June
19 agreement settling Case 17-CA-1700 on the ground his
investigation of the charge in Case 17-CA-1745 led him to
conclude that the Respondent had violated the agreement
The Examiner has entered findings above that the
postsettlement conduct alleged as violative of Section
8(a)(5) and (1) did not violate those sections and stated
that he shall recommend that they be dismissed.
The presettlement conduct the Regional Director
determined to be violative of the Act were certain coercive
interviews and the unilateral grant of several wage
increases, by virtue of the settlement agreement the
Respondent obligated itself not to repeat the objectionable
interviews and to refrain from granting unilateral
increases and to bargain with the Union in good faith at
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its request The Examiner has entered findings that no
coercive conduct violative of Section 8(a)(1) has occurred
subsequent to June 19, the date of execution of the
agreement , and that the Respondent has bargained in
good faith since that date
The Examiner therefore finds and concludes that the
Respondent did not violate the settlement agreement of
June 19 and will recommend that the portion of the
complaint so alleging be dismissed.
Ordinarily when no postsettlement conduct has been
found to be violative of the settlement agreement and the
Act, the entire complaint is dismissed and no findings are
made as to the presettlement conduct (Jackson Mfg Co ,
129 NLRB 460) For the convenience of the reviewing
authorities , however , the Examiner has entered findings on
the presettlement conduct (Case 28-CA-1700)
Inasmuch as he has not found any postsettlement
violations , however , he shall recommend that the
complaint be dismissed and that the settlement agreement
be reinstated (Teamcterc General Local 200 (Bachman
Furniture Co ). 172 NLRB No 119, Conroe Creosoting
Co , 149 NLRB 1174
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
and in a business affecting commerce and the Union is a
labor organization within the meaning of Section 2 (2), (5),
( 6), and (7) of the Act.
2. Respondent did not commit the postsettlement
agreement violations of the Act alleged in the complaint.
RECOMMENDED ORDER
On the basis of the foregoing findings and conclusions,
and upon the entire record in the case, the Examiner
recommends that the complaint be dismissed and the June
19, 1968, settlement agreement be reinstated