Gregory's Inc.

National Labor Relations Board - Board Decisions

May 30, 1979

242 N.L.R.B. 644 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gregory's Inc. and Local 17, Hotel, Motel, Restau-
rant, Bar and Club Employees Union, AFL-CIO.
Case 18-CA-5716
May 30, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On January 26, 1979, Administrative Law Judge
Robert E. Mullin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and arguments in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Gregory's Inc., its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the Ad-
ministrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT withdraw recognition from, or
fail and refuse to bargain in good faith with Lo-
cal 17, Hotel, Motel, Restaurant, Bar and Club
Employees Union, AFL-CIO, while that Union
is lawfully entitled to recognition as the bargain-
.ilg representative of the following appropriate
bargaining unit of our employees:
All employees employed by Gregory's Inc. at
its Minneapolis, Minnesota, facility, including
cooks, waiters, waitresses, captains, busboys,
busgirls, hostesses, checkroom employees,
cashiers, food checkers and dining room and
service employees, but excluding office cleri-
cals, managerial employees, guards and super-
visors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the right to self-organization, to
form labor organizations, to join or assist the
above-named or any other labor organization, to
bargain collectively through representatives of
their own choosing, to engage in concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection, and to refrain
from any or all such activities.
WE WILL, upon request, bargain collectively
with the aforesaid Union as the exclusive repre-
sentative of the employees in the appropriate
unit, and, if an understanding is reached, em-
body such understanding in a signed contract.
GREGORY'S INC.
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This
case was heard on June 14, 1978, in Minneapolis, Minne-
sota, pursuant to a charge duly filed and served,' and a
complaint issued on April 24, 1978. The complaint presents
questions as to whether Respondent violated Section 8(a)(l)
and (5) of the National Labor Relations Act, as amended.
In its answer, duly filed, Respofident conceded certain facts
with respect to its business operations, but it denied all alle-
gations that it had committed any unfair labor practices.
At the hearing, all parties were represented. All were
given full opportunity to examine and cross-examine wit-
nesses, and to file briefs. A motion to dismiss, made by
Respondent at the close of the hearing, is disposed of as
appears hereinafter in this Decision. The parties waived
oral argument. On July 18, 1978, briefs were submitted by
the General Counsel and Respondent.
Upon the entire record in the case, including the briefs of
the counsel, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Minnesota corporation, maintains its prin-
cipal office and place of business in Minneapolis, Minne-
sota, where it is engaged in the operation of a large restau-
rant where it sells food and beverages. During the last full
year period prior to issuance of the complaint, Respondent
had a gross revenue from its restaurant operations in excess
of $500,000. During that same period, Respondent pur-
chased supplies valued in excess of $50,000, of which
amount goods End materials valued in excess of $50,000
were either transported and delivered to its facility in Min-
neapolis directly from points outside the State of Minne-
I The charge was filed on February 22. 1978.
242 NLRB No. 104
644
GREGORY'S INC.
sota, or were transported and delivered to said facility from
other enterprises in the State of Minnesota, each of which
had received such goods and materials directly from points
located outside the State of Minnesota. Upon the foregoing
facts, Respondent concedes, and it is now found, that Greg-
ory's Inc., is engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Local 17, Hotel, Motel, Restaurant, Bar and Club Em-
ployees Union, AFL-CIO, herein Local 17, or Union, is a
labor organization within the meaning of Section 2(5) of the
Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
Respondent and Local 17, or its predecessor organiza-
tions,' have had bargaining relations extending back to the
fall of 1963 when Harriet Long, who was then president of
Respondent, signed the first collective-bargaining agree-
ment. At that time Respondent was known as Ranch
House, In September 1976 the corporate title was changed
to the name which appears in the caption of this case. In
about 1970, Long's son. Gregory, became active in the
management of the restaurant and in July 1977 he became
president of Respondent. His mother remained on the
board as vice-president and consultant. Although there is
now at least one other stockholder in the corporation, Har-
riet and Gregory Long hold a majority and controlling in-
terest in the business.
Respondent concedes that from 1963 and until Septem-
ber 30, 1974, it had collective-bargaining relations with Lo-
cal 17. Its contracts in those years were negotiated orginally
by an employers' trade association made up of restaurant
owners and on-sale liquor dealers in Minneapolis and Hen-
nepin County (herein Association). Gregory's was not a
member of the latter organization. However, in each in-
stance, and until 1974, after negotiations for a new contract
were completed by the Association, Respondent very
shortly thereafter signed the agreement which the Union
and the employer group had reached. Respondent contends
that after September 30, 1974, when the last signed agree-
ment with the Union expired, it had no further contract
with Local 17. The General Counsel, however, contends
that subsequent to the latter date Respondent adopted and
abided by all provisions in the 1974 to 1977 agreement.
In a letter dated July 25, 1977, the Union sent Respon-
dent a notice that the collective-bargaining contract would
expire on September 30,3 and requested that Respondent
meet with it for the purposes of egotiating a new agree-
' In 1963, the employee representative, and signatory to the contract, was
Local Joint Executive Board of the Hotel and Restaurant Employees and
Bartenders International Union (herein Local Joint Board). The latter was
composed of Locals 152. 458. and 665. In April 1975, these three locals, all
based in Minneapolis, merged with two separate locals in St. Paul. Since that
time, the successor organization has been known as Local 17. the Charging
Party herein.
All dates hereinafter are for the year 1977 unless specifically noted other-
wise.
ment. The Union received no response to this letter. On
several occasions during the month of November and De-
cember. Beverly L.eegard, business representative for Local
17, contacted both Harriet and Gregory Long to request
that they sign the new agreement which the Association
had negotiated with the Union, or bargain as to its applica-
tion to Respondent's personnel. Respondent concedes that
since November 1977, the Union has requested that it bar-
gain, but that it has refused to do so. The General Counsel
contends that Respondent's conduct constitutes a violation
of Section 8(a)(5) and (). This is denied by GregorN's ac-
cording to whom the Union did not meet the statutory re-
quirement that it have a majority within the appropriate
unit at any time in question.
B. The Appropriate Unit
The General Counsel alleged, Respondent conceded and
it is now found that an appropriate collective-bargaining
unit at Gregory's Restaurant, within the meaning of Section
9(b) of the Act, is described below:
All employees employed by Gregory's at its Minne-
apolis, Minnesota facility, including cooks. waiters,
waitresses, captains, busboys. busgirls, hostesses,
checkroom employees, cashiers, food checkers and din-
ing room and service employees. excluding office cleri-
cals, managerial employees, guards and supervisors as
defined in the Act.
C. The Issue as to Whether the Union and the Respondent
were Parties to a Collective-Bargaining Agreement from
October 1, 1974 to September 30. /177
At the hearing Respondent denied that any contractual
obligation existed between it and the Union from 1974 to
1977 because it had not participated in the negotiations for
such a contract and did not execute a copy of the industry-
wide agreement for that period. While conceding that Re-
spondent is correct as to these last two factors, the General
Counsel contends that during the 3-year span in question
Respondent pursued a course of conduct which constituted
recognition of the Union's majority status and adoption of
the industry-wide agreement.
It was Respondent's custom from 1963 to 1974 to sign
each of the industry-wide agreements, although it had not
participated in any of the negotiations. In accord with this
practice, President Long acknowledged that after he be-
came active in Respondent's management he signed the
1971-74 industry-wide contract, although he had partici-
pated in none of the bargaining sessions. After the 1974-77
agreement had been executed by the Union and the Associ-
ation, business agent F. R. Frawley, who had been active in
the negotiations and in the representation of the Gregory
employees, discussed the new contract on several occasions
with President Long. Frawley credibly testified that these
conversations were held after Aprl 1975 and that in each
instance, when he suggested that Gregory Long sign the
new agreement, Long's only comment was "We'll get
around to it," or "Later." or "Some other time."
There was substantial evidence in the record that by its
conduct during the 3-year period that began on October 1,
645
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1974, Respondent continued to recognize Local 17 as its
employees' bargaining agent and that it applied the terms
and conditions of the new industry-wide agreement which
had been negotiated by the Association. President Long ac-
knowledged that Respondent paid the wages specified in
the 1974 77 industry-wide agreement, and that it imple-
mented all wage increases specified therein. Respondent
also adhered to the contractual provisions which required
that throughout its term the Employer pay into the Union's
health and welfare fund and also pay the insurance costs
which were assessed against it. At one point in his testi-
mony President Long seemed to indicate that Respondent
paid for these fringe benefits only for the older employees
on the payroll during the 1974-77 period. Later, however,
on further cross-examination he acknowledged that such
payments were made for new employees as well.
There was also testimony and documentation as to cer-
tain grievances which employees had during the period in
question and which Respondent handled in accordance
with the procedures established by the contract. Thus, in a
letter dated January 6, 1975, Judy Perron, an assistant man-
ager, notified business agent Beverly Leegard that employee
Jeanne Wheaton had been given a warning notice for habit-
ual tardiness. Then, on March 24, 1975, Martha Stolzfus,
another assistant manager for Respondent, notified Lee-
gard, in writing, that employee Wheaton had received her
second and final warning for neglect of duties. In another
instance, in a grievance dated October 3, 1977, employee
Ruth M. Lindgren complained that she had been unfairly
terminated from her job as a waitress. Leegard testified,
credibly and without contradiction, as to having received
notification of the warning letters and also having received
a copy of Lindgren's grievance. She also testified, with re-
spect to the latter, that she had discussions concerning
Lindgren with both Gregory and Harriet Long in October
1977 and subsequent to the time that the grievance was
filed. Lastly, at some point during the term of the 1974 77
contract, one Hoffman, a cook employed at Respondent's
restaurant, complained to the Union that he had been
shorted some pay. President Long testified that the Union's
president. Robert D. Norgren, and Douglas Wright, an-
other official of Local 17, contacted him with respect to this
grievance. Long acknowledged that the difficulty arose be-
cause of what he described as "an error in bookkeeping"
and not because of any assumption on his part that Re-
spondent was not bound by the contractual rate. Respon-
dent's president testified that the complaint was quickly re-
solved when the union representatives called it to his
attention and he rectified the mistake. Finally, in October
1977. both Gregory and Harriet Long met with Lloyd A.
MacAloon, a labor relations consultant. According to the
latter, Respondent's officials sought his advice as to what
coulC be done about employees who did not want to remain
in the Union as a condition of employment. This action in
itself was indicative that even at that time in October 1977,
Respondent was continuing to recognize the Union as the
majority representative for its employees.
The Board has held, in deciding whether an employer
and a union have agreed upon a contract, that it is not
bound by the technical rules of contract law. Lozano Enter-
prises v. N.L.R.B., 327 F.2d 814, 817 818 (9th Cir. 1964). In
John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 550
(1964), the Supreme Court held that a collective-bargaining
agreement is not governed by the same common law con-
cepts which govern private contracts, nor is it an ordinary
agreement comparable to the one for the purchase of goods
and services. Here, Respondent's continued adherence to
the provisions in the contract on wages and pay raises, as
well as those on the Union's health and welfare fund, on
insurance benefits and on the checkoff of union dues, along
with its continued utilization of the Union in the settlement
of grievances "demonstrate the existence of a continuing
relationship between Respondent and the Union." Manor
Research, Inc., 165 NLRB 909 (1967). On the basis of the
findings set forth above, it is now found that Respondent's
course of conduct between October 1974 and October 1977,
along with the Employer's failure to repudiate the contract
prior to the latter date, manifested Respondent's assent to
be bound by the collective-bargaining agreement which the
Association had negotiated. On no other basis can Respon-
dent's frequent contacts with the Union, as set out above,
be explained. Consequently, it is now found that a 3-year
collective-bargaining agreement existed between Respon-
dent and the Union from 1974 to 1977. Urban N. Patman,
Inc., 197 NLRB 1222, 1227 (1972), enfd. sub nomine Provi-
sion House Workers Union, Local 274 AFL-CIO v.
N.L.R.B., 493 F.2d 1249 (9th Cir. 1974); Hurting Sash and
Door Company, 151 NLRB 470, 474 (1965), enforced as to
this point, 362 F.2d 217, 218 (4th Cir. 1966).
D. The Issue as to Whether the Union had a Majoriy at
the Time of its Request to Bargain
As found earlier, the Union made its first demand on
Respondent in a letter dated July 25, 1977, to which the
Employer made no response. Thereafter, in November and
December, business agent Leegard visited the restaurant on
several occasions to ask President Long when he would be
available to meet for the purpose of executing the new con-
tract. Leegard testified, credibly and without contradiction,
that during her visit to the restaurant shortly before
Thanksgiving, Gregory Long declined to meet at that time
with the comment "I'm too busy right now. I'm going to be
out of town. Could you see me after the holidays?" Leegard
acknowledged that she accepted Long's suggestion at that
time. After Thanksgiving, she made several additional calls
to Long's office, but was unable to contact him. Finally,
during the first week in December, she was unsuccessful in
reaching Long via the telephone. She then asked when it
would be possible to meet with him either to sign the new
contract or at least, to sit down and negotiate. His response
to this inquiry was "No, not now, I'm too busy, if at all."
When she questioned him as to what he meant by the last
remark, he merely repeated the words "if at all" and termi-
nated the conversation. Thereafter, in a letter dated Decem-
ber 16, 1977, Local 17 wrote to President Long restating the
claim to represent his employees and asking that he meet
within the next 10 days to commence negotiations. Respon-
dent never made any response to this communication. Lee-
gard credibly testified that in none of her conversations
with Respondent's officials in the fall of 1977 did either
646
GREGORY'S INC.
President Long, or his mother, assert any belief that Local
17 did not represent a majority of its employees.4
Respondent now defends its refusal to bargain with the
Union on the ground that it had a reasonable doubt that
Local 17 any longer represented a majority of its employ-
ees. It is well settled that a union, whether certified or vol-
untarily recognized, enjoys a presumption of majority sta-
tus after the expiration of its contract with an employer.
Terrell Machine Company, 173 NLRB 1480, 1481 (1969),
enfd. 427 F.2d 1088 (4th Cir. 1970). cert. denied 398 U.S.
929 (1970). This presumption is, of course, rebuttable, and
Respondent contends that legitimate factors caused it to
conclude that the Union no longer represented a majority.
To these contentions we will now turn.
1. The RM petition
In January 1978 Respondent filed an RM petition. Greg-
ory's Inc., Case 18-RM-1012. This was later dismissed by
the Regional Director. At the hearing Respondent sought
to establish that although the petition was not filed until
January 1978, it had taken the initial steps to press for such
an election the preceding fall. Thus, it called as a witness,
Lloyd A. MacAloon, a labor relations consultant with
whom the Longs conferred in October 1977, as to filing
such a petition. MacAloon testified that the decision to ini-
tiate this action had been made in the fall and that the
actual filing of the petition had been delayed solely because
of his personal illness which intervened before he could ac-
complish this mission. This testimony, of course, was prof-
fered to bolster Respondent's assertion that the Union was
lacking in majority support. The filing of such a petition,
however, is irrelevant to the question as to whether the
Union had a majority at the time in question, for the Board
has held that filing an RM petition is no more than a self-
serving assertion and has no evidentiary weight. Cavalier
Division of Seeburg Corporation, and Cavalier Corporation,
192 NLRB 290, 291 (1971), enforced as to this point, 476
F.2d 868 (C.A.D.C., 1973). Massey-Ferguson, Inc.. 184
NLRB 640, 641 (1970), enfd. 514 F.2d 894 (D.C. Cir. 1975).
2. The RD petition
In April 1978, an employee of Respondent filed an RD
petition. Gregory's Inc., Case 18-RD-861. This was also
dismissed. The General Counsel contends, correctly, that
the filing of such a petition in April 1978 is not relevant to
a determination as to Respondent's good-faith doubt on the
majority issue in the fall of 1977. Since Respondent's re-
fusal to bargain occurred in the fall of the latter year, the
principal issue is whether, during the period from October
to December, when the Union sought to bargain with the
Employer, the latter had any reasonable basis for conclud-
ing that Local 17 no longer represented a majority of em-
ployees in the appropriate unit. Bartenders, Hotel, Motel
and Restaurant Employers Bargaining Association of Poca-
tello, Idaho, 213 NLRB 651, 652, (1974); Gultmont Hotel
' In its brief Respondent argues that in 1963 Respondent never requested
proof of majorit) from the Union and that, as a result, no presumption of
majority can flow from such recognition as may have been accorded the
Union either then or subsequent to that time. This argument is without merit
as being untimely and belatedly raised.
Company, 362 F.2d 588, 589 (5th Cir. 1966). Obviousl an
RD petition filed 5 to 6 months later has no relevance to a
decision on that question.
3. The allegation that the Union had become inactive
Respondent also asserts that it had reason to doubt the
Union's majority because the representatives of the latter
were inactive during the period 1974-77. There is no basis
for this contention. As found earlier herein, there were a
number of occasions during the period in question when
employee complaints resulted in the intervention of union
representatives or business agents. President Long himself
testified about an instance when Norgren, vice-president of
Local 17, and another union agent, met with him about the
complaint of Hoffman, the cook. Even more significantly.
on October 3, 1977, and the same month that Respondent
allegedly began to formulate a good-faith doubt about the
Union's majority, employee Lindgren filed a formal griev-
ance which led to a discussion between Gregory Long and
Business Agent Leegard. Moreover. Business Agent Fraw-
ley testified, credibly and without contradiction, that he vis-
ited Respondent's restaurant about once a month from
1974 to July 1977, that in the course of these visitat ons he
met with the employees and with Long. and that on these
occasions he participated in the informal resolution of
many employee problems.
The fact that there was not a great number of grievances
is more a tribute to a good relationship between the em-
ployer and the bargaining agent than an indication that the
Union was inactive. If there had been grievances which the
Union never processed or handled poorly. this would be
relevant to establishing that Local 17 had become inactive
or irresponsible in discharging its obligations. North Ameri-
can Manufacturing Comparn, 224 NLRB 1252. 1255 (1976).
In this respect, however, Respondent offered no evidence
that would substantiate such a charge against the Union's
effectiveness or its interest in the employees. Nor does the
fact that the Union never secured a signed contract rom
Respondent for the 1974-77 period point to a contrary con-
clusion. As found earlier, the Changing Parts's represcrita-
tives solicited Gregory Long to sign the Association agree-
ment on a number of occasions and in each instance he
evaded the necessity of doing so b suggesting that this
matter could he taken care of at "Some other tme'" and
promising the business agent "We'll get around to it." In
view of these facts, found earlier, Respondent is not no in
a position to assert that the Union was Inactive because it
did not secure a signed agreement since this plainl3 resulted
from the subterfuges which Respondent practiced to avoid
having to execute the new contract.
Respondent also contends that the Union was inactive by
reason of the fact that it had not requested the discharge of
those employees who did not join Local 17 as required by
the union shop provisions of the collective-bargaining
agreement. That the Union did not request such action,
however, resulted from Respondent's evasive conduct.
rather than from a lack of interest on the Union's part.
Thus, as found earlier, each month during the 1974 77 pe-
riod Respondent remitted to the Union the dues that it de-
ducted from employee wages. On cross-examimation. Pres-
h47
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ident Long acknowledged that in the latter months of the
contract term Respondent began supplying only a partial
list of the newly hired employees. However, the Union was
never given any notice that such lists were incomplete. In-
stead, Business Agent Leegard testified that as late as No-
vember 1978, lyone Rice, Respondent's bookkeeper, as-
sured her that all applications and authorizations from new
employees were being sent to the Union. Leegard further
testified, credibly and without contradiction, that whenever
she inquired as to specific employees who were not on the
lists, she was informed by either bookkeeper Rice or Vice
President Harriet Long that the individual in question was
excluded from the union shop requirement because he or
she was only working part-time, was in an on-call classifica-
tion, or was a student on short hours.
It is evident that the Union's failure to request the dis-
charge of nonmembers on Respondent's payroll and to se-
cure Respondent's signature on the 1974-77 contract were
due to the subterfuges practiced by Respondent's officials.
Further, on the basis of the findings set forth above as to
the Union's efforts to resolve employee complaints, to dis-
pose of formal grievances, and to secure Respondent's sig-
nature on the contract, as well as the frequent visits to the
Employer's premises by the business agent servicing the
agreement, it is now found that there is no merit to Respon-
dent's contention that the Union was inactive in fulfilling its
obligations as the employee's representative.
4. Turnover
Both at the hearing and in its brief Respondent has con-
tended that the turnover of employees in the unit reinforced
its conclusion that the Union no longer represented a ma-
jority. President Long estimated that there was a turnover
rate of approximately 50 percent between 1974 and 1977.
However, Respondent offered no evidence of any signifi-
cant change in the composition of the unit. The Board has
held that evidence as to turnover of employees is relevant
only to the extent that the employer is able to demonstrate
that substantial changes have occurred in the composition
of the bargaining unit. Peoples Gas System, Inc., 214 NLRB
944, 946-947 (1974). Since no such evidence was proffered
and it appears that none was available, it must be presumed
that the new employees support the Union in the same ratio
as those whom they have replaced. Joel Costa Trucking
Compan, 238 NLRB 1516, SI. op., pp. 3-4 (1978); Wash-
ington Manor, Inc. d/b/a Washington Manor Nursing Center
(North), 211 NLRB 324, 323 (1974); King Radio Corpora-
tion, Inc., 208 NI.RB 578 583 (1974).
5. ecrease in checkoff authorizations
At the hearing Respondent contended that the number of
checkoffs declined from 1974 to February 1978. In support
of that contention it offered in evidence a listing of the
employees who authorized dues checkoffs in February
1978. This list contained only 32 names. This evidence,
however, is irrelevant to the issue as to whether Respondent
had reason to doubt the Union's majority the preceding
November and December when Local 17 requested the
Employer to bargain. Obviously, during the fall of 1977 and
during the period critical to a determination of the Union's
majority, Respondent did not have available and could not
have relied on a February 1978 employee list of checkoff
authorization.'
The General Counsel offered in evidence the lists of
checkoff authorizations for the period from June to Decem-
ber 1977. These establish that for each of the months in that
period the number of employees on checkoff was as indi-
cated below:
June 40
July 36
August 38
September 34
October 41
November 36
December 34
On December 3, 1978, there were 69 employees in the
unit. 6 From the data above, it appears that there was a
decrease of six employee authorizations for checkoff from
June to December 1977. Assuming that there was approxi-
mately the same number of employees in June as in Decem-
ber,7 this would mean that about 57 percent of the unit
employees authorized checkoffs in June and that 49.2 per-
cent did so in December, a decrease of less than 8 percent in
the 7-month period. Even if less than a majority of unit
employees authorized checkoffs in December 1977 that in
itself is immaterial to the issue of majority status. N.L.R.B.
v. Gulfmont Hotel Company, 362 F.2d 588, 591 (5th Cir.
1966); Washington Manor, Inc., d/b/a Washington Manor
Nursing Center (South), 211 NLRB 315, 320-321 (1974).
6. Employee statements
President Long testified that many employees made
statements to him that were critical of the Union. The
Board has held that to carry evidentiary weight in support
of a reasonable doubt, such expressions of antiunion senti-
ment must have been made prior to the Employer's with-
drawal of recognition and must convey a clear intention not
to be represented by the Union. Grand Lodge of Ohio, In-
dependent Order of Odd Fellows d/b/a Odd Fellows Rebekah
Home, 233 NLRB 143, 144 (1977). On the other hand,
statements that are merely critical of the Union or in dis-
agreement with its policies cannot be considered the equiv-
alent of repudiation of the Union as the employees' bar-
gaining agent. Retired Persons Pharmacy, t/a NRTA-AARP
Pharmacy, 210 NLRB 443, 446 (1974), enforced 519 F.2d
486 (2d Cir. 1975). Long's testimony as to various conversa-
I In rejecting a similar argument that was advanced in another case the
Board stated: "the situation must be appraised as of the time of the commis-
sion of the unfair labor practices, and not currently." Gibson Products Com-
pany of Washington Parish, La., Inc.. 185 NLRB 362, 363 (1970).
6The payroll for this period carries 77 names. However, Gregory Long
acknowledged that eight of those listed were individuals who were excluded
from the unit because they were salaried, had the power to hire and fire, or
were office clericals. The names of these employees were: Ardele Hagen-
bugh, a salaried cashier; Priscilla Avery and yone Rice, both office clericals;
Kevin McPartland, a manager; Beatrice Wollan, a salaried day hostess;
Crystal Olson, a hostess with authonty to hire and fire; Sam Totino, a chef;
and Thomas J. Wherley, a salaried night broilerman.
' This would appear to be a valid assumption. Although Gregory Long
estimated that there were about 75 to 85 employees in the unit at all times,
this estimate was not borne out by the payroll period ending October , 1977,
when the total number in the unit was 67, and for the period ending Novem-
ber 12, 1977, when there were 70 employees in the unit.
648
GREGORY'S INC.
tions he had with employees over a period of months was in
large measure lacking in specificity as to details and dates.
Characteristic of many of the statements which he proffered
as a demonstration that the Union had lost employee sup-
port was a comment attributed to Ted Gladhill, a busboy.
According to Long, on one occasion, the date unspecified,
Kevin McPartland, the general manager, related that when
Gladhill picked up his payroll check he remarked "There
goes my eight bucks again." On direct examination, Long
expressed the view that Gladhill was expressing an objec-
tion to the union dues. On cross-examination, however, and
after being shown an exhibit which indicated that Gladhill
only paid $6.50 a month in union dues, Long acknowledged
that the employee's comments may have been unrelated to
the subject of union dues. Long testified as to a conversa-
tion he had with Mary C. Brieger, a waitress, who found,
after being hospitalized, that she was not covered by the
Union's hospitalization insurance. According to Long, "She
was upset with the union." He related nothing further as to
his conversation with the employee. From this account it is
obvious that although the employee may have been very
distressed about not being eligible for insurance coverage,
the statement quoted certainly cannot serve as the basis for
a conclusion that she no longer cared to be represented by
the Union.
Many of the other employees whom Long quoted pur-
portedly complained about having to pay dues or, as new
employees, asked if they had to join. Apart from the fact
that Long could not give any further details as to the times
and places where these conversations were allegedly had, he
also gave no testimony which would establish that these
employees expressed a desire to be no longer represented by
the Union. These then were statements which do not mea-
sure up to the standard required to establish that the em-
ployees in question had repudiated the Union. In another
instance, Long related a conversation with William Morris-
sey, a waiter who was also a college student, who requested
information for a college term paper. According to Long,
this conversation occurred just before Christmas and from
it he concluded that Morrissey no longer wished to be rep-
resented by Local 17 because the employee wanted to write
about what unions do not do for people. Apart from the
question as to whether Long was justified in reaching this
presumption as to Morrissey's desires with respect to repre-
sentation by the Union, the request for such information
occurred after Respondent had already refused to bargain
with Local 17. As a result, this evidence does not meet the
test which the Board requires, viz., that the employee ex-
pression of antiunion sentiment must have been made be-
fore the Employer's withdrawal of recognition. Odd Fellows
Rebekah Home, supra. From a consideration of all the evi-
dence which Respondent introduced on this issue and on
the basis of the findings set forth above it is now found that
the satements offered to support Respondent's conclusion
that the employees did not want the Union to represent
them were not such as Respondent justifiably could rely on
in challenging the majority status of the Union. North
American Manufacturing Company, 224 NLRB 1252, 1258
(1976), enfd. 563 F.2d 894, 897-898 (8th Cir. 1977); .Nu-
Southern Dyeing & Finishing, Inc.. and Henderson Combin.
ing Co., 179 NLRB 573, 577 (1969), enfd. as to this point,
444 F.2d 11 (4th Cir. 1971).
Finally, on the basis of all the findings set forth earlier
herein, the undersigned concludes that Respondent has
failed to rebut the Union's presumption of majority status.
Accordingly, it is now found that there is substantial evi-
dence to support the allegation in the complaint that Re-
spondent unlawfully refused to bargain with the Union on
and after December 16, 1977, and that it thereby violated
Section 8(a)(5) and (1) of the Act.
CONCIUSIONS OF LAW
1. Respondent is engaged in commerce and the Union is
a labor organization, all within the meaning of the Act.
2. By its conduct set forth and found in section 111, su-
pra, Respondent has engaged and is continuing to engage in
unfair labor practices in violation of Section 8(a)(5) and (1)
of the Act.
3. Said unfair labor practices affect, and unless perma-
nently restrained and enjoined, will continue to affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act, Respondent should be ordered to cease
and desist from engaging in. or continuing, such, or like,
violations.
It has been found that there was a presumption that the
Union had a majority at the time the 1974-77 contract ex-
pired on September 30, 1977, and that Respondent did not
rebut that presumption with any evidence which it offered
during the course of the hearing in this matter. After the
expiration of the contract the Union made several requests
that Respondent meet and bargain with it and on Decem-
ber 16, 1977, Local 17 repeated these requests in a letter
addressed to Respondent to which it never received any
answer. By the latter date, it is evident, from the findings set
forth earlier herein, that Respondent had determined not to
recognize the Union as the representative of its employees,
notwithstanding its statutory obligation to do so. By then
Respondent had. as the Board found in a recent case "em-
barked on a clear course of unlawful conduct ... to under-
mine the union's majority status." Trading Port, Inc., 219
NLRB 298, 301 (1975); The Great Atlantic & Pacific Tea
Company, Inc., 230 NLRB 766, 767 (1977); The Kroger Co.,
228 NLRB 149, 151 (1977). Consequently. it is now found
that the bargaining order should be dated as of December
16. 1977.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is issued the following recommended:
ORDERS
The Respondent, Gregory's, Inc., its officers, agents, suc-
cessors, and assigns, shall:
8 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 obections thereto shall be deemed
waived for all purposes.
649
DECISIONS OF NATIONAL IABOR RELATIONS BOARD
I. Cease and desist from:
(a) Withdrawing recognition from, or failing and refus-
ing to bargain in good faith with, Local 17, Hotel. Motel.
Restaurant. Bar and Club Employees Union. AFL CIO,
while that Union is lawfully entitled to recognition as the
bargaining representative of the following appropriate bar-
gaining unit of the Respondent's employees:
All employees employed by the Respondent at its
Minneapolis, Minnesota facility, including cooks, wait-
ers, waitresses, captains, busboys, busgirls, hostesses,
checkroom employees, cashiers, food checkers and din-
ing room and service employees, but excluding office
clericals, managerial employees, guards and supervi-
sors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the right
to self-organization. to form labor organizations, to join or
assist the above-named or any other labor organization, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
and to refrain from any or all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively, with the aforesaid
Union as the exclusive representative of the employees in
the appropriate unit, and, if an understanding is reached,
embody such understanding in a signed contract.
(b) Post at its place of business in Minneapolis, Minne-
sota, copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Regional
Director for Region 18, after being duly signed by Respon-
dent's authorized representative, shall be posted by it for a
period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered. defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 18, in writ-
ing, within 20 days from the date of this Order. as to what
steps Respondent has taken to comply herewith.
I In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading. "Posted b Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
650