Hotel, Motel, Restaurant Employees And Bartenders Union, Local 19, Hotel Employees And Restaurant Employees International Union, Afl-Cio

National Labor Relations Board - Board Decisions

Nov 26, 1985

277 N.L.R.B. 842 (N.L.R.B. 1985)

842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hotel , Motel, Restaurant Employees and Bartenders
Union , Local 19 , Hotel Employees and Restau-
rant Employees International Union, AFL-CIO
and Vicorp Restaurants, Inc., d/b/a Seasons
Restaurant. Cases 32-CB-1932-2, 32-CB-
1932-3, and 32-CB-1989
26 November 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 6 September 1985 Administrative Law Judge
George Christensen issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Hotel,
Motel, Restaurant Employees and Bartenders
Union, Local 19, Hotel Employees and Restaurant
Employees International Union, AFL-CIO, Santa
Clara and San Jose, California, its officers, agents,
and representatives, shall take the action set forth
in the Order.
Douglas Gallop, for the General Counsel.
Michael Roger & William Sokol (Van Bourg, Weinberg,
Roger & Rosenfeld), of San Francisco , California, for
the Respondent.
Alan B. Carlson (Littler, Mendelson , Fastiff & Tichy), of
San Jose, California , for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge.
On 9 April 1985 I conducted a hearing at Campbell,
California, to try issues raised by a complaint issued on
21 March 1985, and amended on 29 March 1985 based
on charges filed by Vicorp against Local 19 in Cases 32-
CB-1932-2 and 32-CB-1932-3 on 18 December 1984'
and in Case 32-CB-1989 on 28 February 1985.2
' Read 1984 after all further date references omitting the year
2 A complaint based on the former two charges issued on 22 January
1985, the 21 March 1985 complaint consolidated the latter charge with
the former two and amended the 22 January 1985 complaint to encom-
pass the subject matter of the latter charge
On 2 April 1985 Local 19 filed an answer to the com-
plaint denying its allegations other than those stating at
all times material it was a labor organization within the
meaning of Section 2 of the Act, since 26 October it has
been the designated representative of Vicorp's employees
within two units described in the complaint for the pur-
pose of bargaining collectively with Vicorp concerning
their rates of pay, wages, hours, and working conditions
and since 26 October Vicorp has recognized it as those
employees' exclusive collective-bargaining representa-
tive 3
The issues created by Local 19's 2 April 1985 answer
are
1. Whether the charges in Cases 32-CB-1932-2 and
32-CB-1932-3 were filed on 18 December and served on
Local 19 on or about 19 December 1985 and whether
the charge in Case 32-CB-1989 was filed on 28 February
1985 and served on Local 19 on or about 1 March 1985.
2. Whether at times material Vicorp was a Colorado
corporation with an office and place of business in Car-
pinteria, California, engaged in operating a chain of res-
taurants nationally, including restaurants in Santa Clara
and San Jose, California.
3. Whether during the 12 months preceding the issu-
ance of the complaint Vicorp, in the course of its busi-
ness operations, derived gross revenues exceeding
$500,000 and purchased and received goods or services
valued in excess of $5000 which originated outside the
State of California.
4 Whether at times material Vicorp was an employer
engaged in commerce within the meaning of Section 2 of
the Act.
5. Whether at times material the two employee units
described in the complaint were appropriate for collec-
tive-bargaining purposes within the meaning of Section 9
of the Act.
6 Whether at times material Daniel A. Fragnito was
Local 19's executive vice president and its agent within
the meaning of Section 2 of the Act.
7. Whether on 20 November Vicorp requested Local
19 as the exclusive representative of Vicorp's employees
within the two units described in the complaint to bar-
gain with it over those employees' rates of pay, wages,
hours, and working conditions.
8 Whether on 11 December representatives of Vicorp
and Local 19 met pursuant to that request.
9. Whether at times pertinent collective-bargaining
agreements -existed which required Vicorp to comply
with their terms.
10. Whether on 11 December Local 19's representa-
tives failed and refused to bargain in good faith with Vi-
corp's representatives concerning the rates of pay,
wages, hours, and working conditions of Vicorp's em-
ployees within the two units.
11. Whether during and/or after January 1985, Local
19 threatened unit employees with discharge unless they
paid current and back dues to Local 19.
3 In that answer, Local 19 denied a substantial number of complaint
allegations identical to allegations it admitted in its 29 January 1985
answer to the 22 January 1985 complaint
277 NLRB No. 90
HOTEL & RESTAURANT EMPLOYEES LOCAL 19 (SEASONS RESTAURANT)
12. Whether by any of the foregoing Local 19 violated
Section 8(b)(1)(A) and/or Section 8(b)(3) of the National
Labor Relations Act.
Counsel for the General Counsel and counsel for
Vicorp appeared at the hearing and were afforded full
opportunity to adduce evidence, to examine and cross-
examine witnesses, to argue, and to file briefs.4
Based on my review of the entire record, observation
of the witnesses, perusal of the briefs, the motion, opposi-
tion thereto, and research, I enter the following
FINDINGS OF FACT
1. THE FILING AND SERVICE ISSUE
The complaint alleged and Local 19 denied that the
charges in Cases 32-CB-1932-2 and 32-CB-1932-3 were
filed by Vicorp with the Region on 18 December and
served on Local 19 on or about 19 December.
In support of the complaint allegations, the General
Counsel submitted: (1) the original charges executed by
counsel for Vicorp on 18 December; (2) documents exe-
cuted by Regional personnel certifying that copies of the
charges were sent to Local 19's listed address by post-
age-paid certified mail on 19 December, plus requests
that Local 19 respond thereto; (3) post office documents
showing Local 19's receipt of the copies of the charges
sent to it on 19 December; and (4) an admission by Local
19's counsel in his answer to the 22 January complaint
that Vicorp filed the charges on 18 December and they
were served on Local 19 on or about 19 December.
The complaint alleged and Local 19 denied that the
charge in Case 32-CB-1989 was filed by Vicorp with the
Region on 28 February 1985 and served on Local 19 on
or about 1 March 1985.
In support of the complaint allegations , the General
Counsel submitted: (1) the original charge executed by
counsel for Vicorp on 27 February 1985; (2) documents
executed by Regional personnel certifying a copy of the
charge was sent to Local 19's listed address by postage-
paid certified mail on 1 March 1985 plus a request that
Local 19 respond thereto; and (3) a post office document
showing that Local 19 received the copy of the charge
sent to it on 1 March 1985.
Local 19 failed to appear and produce any evidence in
support of its denials.
On the basis of the evidence recited above, I find and
conclude the charges in all three cases were filed with
the Region by Vicorp and served on Local 19 on the
dates set forth in the complaint.
II. THE EMPLOYER AND COMMERCE ISSUES
The complaint alleged and Local 19 denied at 'all ma-
terial times Vicorp was a Colorado corporation with an
office and place of business in Carpinteria, California,
that Vicorp was engaged in the business of operating a
chain of restaurants located throughout the United States
4 Local 19 neither appeared at the hearing nor filed a brief, it did,
however, file a posthearing motion to strike those portions of the General
Counsel's brief requesting litigation costs and setting forth facts and argu-
ment in support of the request Local 19 did not move to strike those
portions of Vicorp's brief requesting the same relief and setting out facts
and supporting argument The motion is denied
843
(including restaurants in Santa Clara and San Jose, Cali-
fornia), that Vicorp in the 12 months preceding the issu-
ance of the complaint derived gross revenues from its
operations in excess of $500,000 and during the same
period, in the course of its operations, purchased and re-
ceived goods of services valued in excess of $5000 which
originated outside the State of California, and that
Vicorp was an employer engaged in commerce within
the meaning of Section 2 of the Act.
In support of the complaint allegations , the General
Counsel and Vicorp sponsored testimony by Daniel M.
Lindsay, a Vicorp official, that Vicorp was incorporated
in the State of Colorado; that at all material times Vicorp
was engaged in the business of operating a chain of over
500 restaurants , including restaurants operating under the
following names : Village Inn, Hungry Hunter, Carlos
Murphy, Baker's Square and Seasons; and that over 100
of Vicorp's restaurants are located in California and it
has a regional headquarters at Carpinteria, California, to
oversee its California operations , including restaurants lo-
cated in Santa Clara and San Jose, California, operated
under the Seasons name . Lindsay also sponsored the in-
troduction into evidence of a profit-and-loss statement
showing Vicorp's West Coast Region, over the period 18
January to 17 February 1985, derived gross revenues
from operations of $1,859,425; invoices showing, over
the period 14 January to 14 March 1985, the San Jose
restaurant alone purchased and received meats valued in
excess of $5000; and testified those meats originated in
Midwestern States and were shipped by their producers
to California. Local 19 failed to appear and produce any
evidence in support of its denials . I credit Lindsay 's testi-
mony and accept the authenticity of the documents he
sponsored.
I therefore find, as alleged in the complaint, at all ma-
terial times Vicorp was a Colorado corporation engaged
in the business of operating a national chain of restau-
rants, including restaurants in Santa Clara and San Jose,
California, operated under the name Seasons Restaurant;
that it maintained a regional headquarters at Carpinteria,
California ; that it derived gross revenues in its operations
exceeding $500,000 annually and purchased and received
goods or services at its California restaurants valued in
excess of $5000 which originated outside of California,
and that it was an employer engaged in commerce
within the meaning of Section 2 of the Act.
III. LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
at all material times Local 19 was a labor organization
within the meaning of Section 2 of the Act.
IV. THE APPROPRIATE UNIT ISSUE
The complaint alleged and Local 19 denied the follow-
ing units were appropriate for collective- bargaining pur-
poses within the meaning of Section 9 of the Act:
All full-time and regular part-time employees em-
ployed by the Employer (Vicorp) at its 2910 El
Camino Real, Santa Clara, California facility per-
forming work in and covered by the wage and clas-
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sification schedules set forth in the June 1, 1982
through June 30, 1983 collective-bargaining agree-
ment between Respondent (Local 19) and Sambo's
Restaurants, Inc. covering Sambo's Inc.'s former fa-
cility at 2910 El Camino Real, Santa Clara, Califor-
nia, excluding all other employees, guards and su-
per'visors as defined in the Act.
and
All full-time and regular part-time employees em-
ployed by Vicorp Restaurants, Inc. at its 1860 The
Alameda, San Jose, California facility performing
work in and covered by the wage and classifications
schedules set forth in the June 1, 1982 through June
30, 1983 collective-bargaining agreement between
Hotel, Motel, Restaurant and Bartenders Union
Local 19 and Sambo's Restaurants, Inc. covering
Sambo's Restaurants, Inc.'s former facility at 1860
The Alameda, San Jose, California; excluding all
other employees, guards and supervisors as defined
in the Act s
In late 1984 Vicorp purchased 175 restaurants from
bankrupt Sambo's Restaurants, Inc., including two res-
taurants operating under the name "Seasons Restaurant"
at Santa Clara and San Jose, California. Following the
purchase, Vicorp continued to operate the restaurants,
manning them with some of Sambo's former employees
and other new hires.
For a number of years prior to the ownership change,
Local 19 represented separate units of Sambo's employ-
ees at the two restaurants, negotiating and executing suc-
cessive contracts covering their wages, rates of pay,
hours, and working conditions Representatives of
Sambo's and Local 19 signed the last such contracts on
16 June 1983, agreeing the provisions of the labor agree-
ments between them expiring 31 May 1982 covering em-
ployees at the Santa Clara and San Jose restaurant "will
be extended and observed to and including June 30,
1983."
In the Santa Clara and San Jose agreements referred
to, plus a series of agreements covering prior time peri-
ods, Sambo's recognized Local 19 as the sole collective-
bargaining representative of all employees in classifica-
tions set forth in the wage classification schedules of
those agreements.6
The Board has held appropriate for collective-bargain-
ing purposes within the meaning of Section 9 of the Act
units of employees identical to units of a predecessor em-
ployer's employees.7
I therefore find and conclude at all pertinent times the
units set out in the complaint were appropriate for col-
lective-bargaining purposes within the meaning of Sec-
tion 9 of the Act.
V. LOCAL 19'S REPRESENTATIVE STATUS AND
VICORP'S RECOGNITION THEREOF
Sambo's ceased to operate and terminated all its em-
ployees at the Santa Clara and San Jose restaurants on 25
October (by appropriate notice issued prior to the date)
Prior to those terminations, the affected employees were
informed Vicorp was going to assume operation of the
restaurants on 26 October,' advised the wages, rates of
pay, hours, and working conditions Vicorp was going to
offer its employees when it commenced operations, and
were invited to file employment applications. Most of
Sambo's employees applied, were interviewed, and were
hired by Vicorp.
As noted, at pertinent times prior to 26 October,
Sambo's recognized Local 19 as the duly designated rep-
resentative of a majority of its employees within the two
units heretofore described and negotiated a series of con-
tracts with Local 19 covering their wages, rates of pay,
hours, and working conditions
On assuming operation of the two restaurants, Vicorp
continued the same business formerly conducted by
Sambo's at the two locations with a substantial number
of the employees formerly employed by Sambo's, and
recognized Local 19 as the exclusive collective-bargain-
ing representative of its Santa Clara and San Jose em-
ployees within the units covered by the previous agree-
ments between Sambo's and Local 19.
On these grounds, Local 19 admitted in its answer, and
I find and conclude, since 26 October Local 19 has been
the designated collective-bargaining representative of a
majority of Vicorp's employees within the two units and
has been so recognized by Vicorp
VI. THE AGENCY, BARGAINING REQUEST, AND
MEETING ISSUES
The complaint alleged, and Local 19 denied, that at
times pertinent Daniel A. Fragnito was Local 19's execu-
tive vice president and its agent within the meaning of
Section 2 of the Act; that about 20 November Vicorp
asked Local 19 to bargain with it concerning the wages,
rates of pay, hours, and working conditions of Vicorp's
employees within the two units; and that on 11 Decem-
ber Vicorp met with Local 19 pursuant to that request 8
About 16 November, the managers of Vicorp's restau-
rants at Santa Clara, San Jose, and Sunnyvale, Califor-
nia,9 received letters dated 14 November and signed
"Daniel A. Fragnito" over the title "Executive Vice-
President" on the letterhead of Local 19 Those letters
stated Local 19 represented Vicorp's employees at the
three restaurants, demanded Vicorp meet and discuss the
employees' terms and conditions of employment, en-
closed "a copy of the collective-bargaining agreement
covering said employees which we can discuss when we
5 Local 19 admitted these allegations in its answer to the 22 January
complaint
6 The findings in the last three paragraphs are based on the uncontra-
dicted testimony of Sambo's former labor counsel, the testimony of
Sambo's and Vtcorp's director of human relations (Sambo's director was
hired by Vicorp), and supporting documents
7 Indianapolis Mack Sales, 272 NLRB 690 (1981)
8 In its 29 January 1985 amendment to the 22 January 1985 complaint,
Local 19 admitted receipt of the request and the meeting
9 The Sunnyvale restaurant was included among the 175 restaurants
Vicorp purchased from Sambo's in late 1984 The facts concerning Local
19's representation and collective bargaining on behalf of a unit of em-
ployees at the restaurant while it was operated by Sambo's are identical
to those relating to the Santa Clara and San Jose units
HOTEL ,& RESTAURANT EMPLOYEES LOCAL 19 (SEASONS RESTAURANT)
meet," and requested Vicorp contact Fragnito to arrange
a time and place for such meeting and discussion. 10
The three letters were turned over to Daniel M. Lind-
say, Vicorp's director for human resources (formerly
Sambo's director of human resources). Fragnito was per-
sonally known to Lindsay through previous contact. On
20 November, Lindsay dispatched responses to the 14
November letters addressed to Fragnito at the address
shown on the letterhead of the 14 November Fragnito
letters. In those responses, Lindsay denied the existence
of any agreements, between Vicorp and Local 19, cover-
ing its employees at the three restaurants, stated Vicorp
purchased Sambo's assets at each location and did not
assume any agreements Sambo's may have entered into
with Local 19, and stated, in view of Local 19's majority
representative status among units of its employees at the
restaurants while those employees were employed by its
predecessor, Vicorp recognized Local 19 as their collec-
tive-bargaining representative and Lindsay would con-
tact Fragnito within the next 10 days to set a date, time,
and place for commencing negotiations of agreements
covering their wages, rates of pay, hours, and working
conditions.
On 26 November Lindsay dispatched another letter
addressed to Fragnito at the same address as his earlier
letters. In this letter, Lindsay advised Fragnito that
Vicorp was withdrawing its earlier recognition of Local
19 as the exclusive collective-bargaining representative of
its Sunnyvale employees because Vicorp had received a
document signed by a majority of its employees within
the Sunnyvale unit formerly represented by Local 19
while the restaurant was operated by Sambo's, stating
they no longer desired representation by Local 19.
Lindsay also contacted Fragnito by telephone at the
telephone number set out on the letterhead of the 14 No-
vember communications and the two agreed to meet at
Local 19's headquarters in San Jose on 11 December.
On the latter day, Lindsay, accompanied by David
Klernberg, Vicorp's divisional personnel manager, pro-
ceeded to the San Jose address appearing on the letter-
head of the 14 November communications and met with
a person there known to Lindsay and self-identified as
Fragnito. In the course of ensuing discussions, that
person acknowledged his authorship of the 14 November
letters, his receipt of Lindsay's 20 and 26 November let-
ters, and his telephone call, and assumed the role of
spokesman for Local 19 on behalf of units of Vicorp's
employees represented by Local 19 while Sambo's oper-
ated those restaurants.' 1 At that meeting, Lindsay reiter-
ated Vicorp's recognition of Local 19 as the exclusive
collective-bargaining representative of Vicorp's Santa
Clara and San Jose employees within the units represent-
ed by Local 19 while they were employed by Sambo's
'0 The enclosed agreements were voluminous documents setting out
provisions governing wages, rates of pay , hours , and working conditions
for a term extending from 1 June 1983 through I June 1986, contained
the same unit descriptions set out in the Sambo 's-Local 19 agreements
covering the three units, and were signed on behalf of Local 19 by Frank
Marolda, president, Daniel A Fragnito, executive vice president; and
Vincent Curci, financial secretary-treasurer, with spaces for employer's
signature blank
11 These findings are based on Lindsay's uncontradicted testimony,
partial corroboration by Klernberg , and pertinent documents
845
and repeatedly requested negotiations for agreements
covering those employees' wages, rates of pay, hours,
and working conditions. 12
On the basis of the foregoing, I find and conclude that
at pertinent times Daniel A. Fragnito was the executive
vice president of Local 19 and its agent within the mean-
ing of the Act,13 that from 20 November Vicorp asked
Local 19 to meet and negotiate a contract with Vicorp
covering those employees' wages, rates of pay, hours,
and working conditions and that on 11 December Vicorp
representatives met with Fragnito (and other representa-
tives of Local 19, as detailed hereafter) for that purpose.
VII. THE ALLEGED REFUSAL TO BARGAIN AND
CONTRACT ISSUES
The complaint alleged and Local 11) denied at the 11
December meeting that Local 19 violated Section 8(b)(3)
of the Act by refusing to bargain in good faith with
Vicorp over the wages, rates of pay, hours, and working
conditions of Vicorp's Santa Clara and San Jose employ-
ees represented by Local 19.
Fragnito opened the 11 December meeting by inform-
ing Lindsay and Kleinberg that the successor provision
of an unexpired agreement between Sambo's and Local
19 required Vicorp to continue to recognize Local 19 as
the collective-bargaining representative of its Sunnyvale
employees. Lindsay disagreed, stating Vicorp was a dif-
ferent employer and doubted Local 19 represented a ma-
jority of its Sunnyvale employees within the unit former-
ly represented by Sambo's at Sunnyvale. Lindsay stated
he and Kleinberg were present solely for the purpose of
negotiating agreements covering the wages, rates of pay,
hours, and working conditions of Vicorp's Santa Clara
and San Jose employees within the units previously de-
scribed. Fragnito replied the successor provisions of un-
expired agreements between Sambo's and Local 19 re-
quired Vicorp to comply with their terms at the Santa
Clara and San Jose restaurants, as well as Sunnyvale.
Lindsay disputed Fragnito's contentions, stating Vicorp
was a different employer, that Vicorp did not assume
any agreements Sambo's may have had when it pur-
chased Sambo's assets, and suggested they begin negotia-
tions. Fragnito asked Lindsay what he wanted to discuss.
Lindsay suggested they use the framework of the agree-
ments Fragnito enclosed with his 14 November letters.
Fragnito replied Local 19 made a mistake in sending
Vicorp those agreements; there were different agree-
ments in effect binding Vicorp. Lindsay demurred, re-
peated his earlier position, and proposed Local 19 agree
to a change in the terms of the health plan covering the
Santa Clara and San Jose employees Vicorp placed in
effect on commencing operations at those locations.14
Fragnito replied Vicorp was obligated under the unex-
pired agreements between Sambo's and Local 19 to make
payments on behalf of its Santa Clara and San Jose em-
ployees represented by Local 19 to a health fund admin-
12 These findings are based on Lindsay's uncontradicted testimony,
partial corroboration by Klernberg , and pertinent documents
rs See 2(13)
14 Lindsay proposed reducing the employee copayment for coverage
under the plan
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
istered by trustees designated by Local 19 and certain
employers and risked having to pay both its health plan
carrier and the trust fund for coverage during the same
time period if it failed to make the payments required
under the unexpired agreements. Lindsay responded
there were no agreements in effect between Vicorp and
Local 19 requiring Vicorp to pay into the trust fund and
renewed his request they commence negotiations. Frag-
nito launched into a long description of the allegedly
prominent role he played in organizing Sambo's employ-
ees, the effectiveness of Local 19's strike and picketing
tactics, and concluded with the statement he was not
there to negotiate any agreements with Vicorp, he was
there to tell Vicorp what its obligations were under the
alleged three unexpired agreements between Sambo's and
Local 19 covering Vicorp's employees at Santa Clara,
San Jose, and Sunnyvale. 15
Local 19's financial secretary-treasurer, Vincent Curci,
and its president/business manager, Frank Marolda,
joined the conference after Fragnito's dissertation con-
cerning his and Local 19's activities (Fragnito acted as
Local 19's sole spokesman up to that time). Marolda
echoed Fragnito's position there was nothing to negoti-
ate; all Local 19 was prepared to do was explain to
Vicorp its obligations under three alleged unexpired
agreements between Sambo's and Local 19 covering Vi-
corp's Santa Clara, San Jose, and Sunnyvale employees.
Lindsay repeated his position (stated above); Marolda
observed it appeared they were in complete disagree-
ment , and presented Lindsay with a letter requesting in-
formation concerning the hiring dates, job classifications,
rates of pay, hours of work, addresses, etc., of Vicorp's
employees at Santa Clara, San Jose, and Sunnyvale.
Lindsay accepted the document and asked when they
would next meet. Marolda replied he would contact
Lindsay after his receipt of the requested information.
On or about 13 December, the managers of Vicorp's
Santa Clara , San Jose, and Sunnyvale restaurants re-
ceived documents labeled "grievances" from Local 19
which alleged Vicorp violated the terms of alleged
agreements covering Vicorp employees at each location
by making unilateral changes in the wages, rates of pay,
hours , and working conditions set out in the alleged
agreements . The documents were forwarded to Lindsay.
On 18 December Lindsay sent Local 19 the information
requested on 11 December with respect to Vicorp's
Santa Clara and San Jose employees, repeated his posi-
tion that Vicorp doubted Local 19's majority representa-
tive status among its Sunnyvale employees, informed
Local 19 Vicorp could not process its grievances because
there were no agreements between Vicorp and Local 19,
and reiterated his request that Local 19 meet with
Vicorp for the purpose of negotiating agreements cover-
ing the wages, rates of pay, hours, and working condi-
tions of Vicorp's employees at Santa Clara and San Jose.
Local 19 has not contacted Vicorp since Vicorp
mailed its 18 December communication to Local 19.
15 During the entire meeting, the alleged agreements were never pro-
duced, despite Fragnito's statement at one point prior to a recess in the
discussions he was going to secure and return with them (at a later point,
Lindsay was told to get them from his own files)
Under Section 8(b)(3) of the Act, a labor organization
which represents a majority of an employer's workers
within an appropriate unit within the meaning of the Act
is required to bargain with that employer, at its request,
concerning wages, rates of pay, hours, and working con-
ditions of the employees within the unit.
I have entered findings that at times pertinent Local 19
represented a majority of Vicorp's Santa Clara and San
Jose employees within such units, that Vicorp asked
Local 19 to meet and negotiate agreements covering the
wages, etc., of those employees, and that on 11 Decem-
ber Local 19 refused to enter into the requested negotia-
tions on the ground Vicorp was bound by the terms of
unexpired agreements between Sambo's and Local 19
covering the wages, etc., of those employees.
Sambo's and Local 19 were parties to a series of agree-
mentsis covering the wages, etc. of Sambo's employees
within appropriate units at the San Jose and Santa Clara
restaurants. The 1 June 1982 to 30 June 1983 agreements
contained both a provision requiring Samba's to condi-
tion any sale of its restaurants on the buyer's assumption
of those agreements and a provision for automatic exten-
sion of the agreements for 1-year terms, subject to can-
cellation by service of timely termination notice prior to
an anniversary date.
No evidence was produced establishing that either
Samba's or Local 19 terminated the agreements on 30
June 1984.
It therefore appears it was the position of Marolda and
Fragnito at the 11 December meeting that the provisions
of the 1 June 1982 to 30 June 1983 agreements were
automatically extended, first to 30 June 1984, and second
to 30 June 1985.
Assuming those agreements were binding on Sambo's,
they were not binding on Vicorp inasmuch as Vicorp did
not assume them. Thus, although Local 19 may have a
cause of action against Sambo's and/or the bankruptcy
overseer for failing to condition the sale of the restaurant
on Vicorp's assumption of Samba's agreements with
Local 19, Vicorp had no liability therefor, was not
bound thereby, and was only required to recognize and
bargain with Local 19 over the wages, etc., of its San
Jose and Santa Clara employees. a 7
I therefore find and conclude Local 19's position con-
cerning the Sambo's-Local 19 agreements was without
merit and that Local 19 violated Section 8(b)(3) of the
Act by its 11 December refusal to bargain in good faith
with Vicorp over the wages, rates of pay, hours, and
working conditions of Vicorp's San Jose and Santa Clara
employees within the units heretofore described.
15 Two-year agreements extending from 1 June 1977 to 31 May 1979,
2-year agreements modifying and extending the terms of the 1977-1979
agreements to 31 May 1981, 1-year agreements modifying and extending
the terms of the 1977-1979 agreements as modified in 1979 to 1 June
1982; and a 13-month agreement extending the terms of the 1977-1979
agreements as modified in 1979 and 1981 to 30 June 1983
17 NLRB v Burns Security, 406 U S. 272 (1972), Spruce Up Corp, 209
NLRB 194 (1974)
HOTEL & RESTAURANT EMPLOYEES LOCAL 19 (SEASONS RESTAURANT) 847
VIII . THE ALLEGED DISCHARGE THREATS
The complaint alleged, and Local 19 denied, that
Local 19 violated Section 8(b)(1)(A) of the Act by
threatening Vicorp employees represented by Local 19
with discharge unless they paid delinquent dues to Local
19.
Barbara Solario, Beckie Badgely, and Dawn De-
Vaughn were employed as waitresses by Sambo's at its
San Jose restaurant for several years prior to October
1984. In compliance with union-security provisions of
agreements in effect when they were hired, the three
joined Local 19. By 31 August, all three ceased paying
dues to Local 19. On 15 October Sambo's terminated
their employment, effective 25 October, advising them
Vicorp had purchased the restaurant and would com-
mence operating it on 26 October. Between 15 and 25
October, Vicorp interviewed the three, told them the
wages, rates of pay, hours,, and working conditions it
was going to offer its waitresses, and offered the three
employment on those terms. All three accepted the offer
and commenced working for Vicorp on 26 October.
In late January 1985, the three received notices in the
mail from Local 19 stating they were delinquent in their
dues payments covering the months of September, Octo-
ber, November, and December 1984 and January 1985.
A standard, printed statement appeared on each notice
stating, "The Hotel and Restaurant Employees and Bar-
tenders International Union Constitution requires suspen-
sion if dues are two months in arrears. Local 19 must
adhere strictly to this requirement. The actual date we
RECEIVE the remittance, not the postmark date, gov-
erns application of this regulation. If suspended, you will
be required to pay a reinstatement fee plus dues and may
be removed from the job."
The three did not tender any payments to Local 19 to
cure their dues delinquencies and preserve their good
standing membership.
No evidence was developed that Local 19 made any
effort to collect any monies from the three other than
sending the notices, or sought in any way to affect their
employment is
It is an unfair labor practice under Section 8(b)(1)(A)
for a labor organization to restrain or coerce employees in
the exercise of their right to refrain from joining or as-
sisting that organization; a labor organization's standard,
printed notice to its dues-delinquent members that if sus-
pended, they may be removed from the job does not
amount to such restraint or coercion. 19
A statement such as this, i.e., of possible future conse-
quences in the event a member does not cure his dues
Is These findings are based on the undisputed testimony of Solario,
Badgely, and DeVaughn, plus supporting documentary evidence (the
dues delinquencies notices)
19 By the italicized language, Local 19 reserved to later decision
whether to accept a delinquent member's late tender of back dues and
uninterrupted continuation of his or her good standing membership or
suspension following 2 months of dues delinquencies and restoration to
new membership status dating from his or her tender of the requisite rein-
statement fee, as well as a decision whether the delinquent member was
subject to discharge under a valid union-security agreement and, if so,
whether or not to proceed
delinquency, does not constitute the restraint or coercion
contemplated by Section 8(b)(1)(A) of the Act.2°
I therefore find and conclude Local 19 did not violate
the Act by virture of its dues delinquency notices to So-
lario, Badgely, and DeVaughn.
CONCLUSIONS OF LAN
1. At all pertinent times Vicorp was an employer en-
gaged in commerce in a business affecting commerce and
Local 19 was a labor organization within the meaning of
Section 2 of the Act.
2. At all pertinent times the following were appropri-
ate units for collective-bargaining purposes within the
meaning of Section 9 of the Act:
All full-time and regular part-time employees em-
ployed by Vicorp Restaurants, Inc. at its 2910 El
Camino Real, Santa Clara, California facility per-
forming work in and covered by the wage' and clas-
sification schedules set forth in the June 1, 1982
through June 30, 1983 collective-bargaining agree-
ment between Hotel, Motel, Restaurant and Bar-
tenders Union, Local 19, and Sambo's Restaurants,
Inc. covering Sambo's Restaurants, Inc.'s former fa-
cility at 2910 El Camino Real, Santa Clara, Califor-
nia; excluding all other employees, guards and su-
pervisors as defined in the Act.
All full-time and regular part-time employees em-
ployed by Vicorp Restaurants, Inc. at its 1860 The
Alameda, San Jose, California facility performing
work in and covered by the wage and classifications
schedules set forth in the June 1, 1982 through June
30, 1983 collective-bargaining agreement between
Hotel, Motel, Restaurant and Bartenders Union
Local 19 and Sambo's Restaurants, Inc. covering
Sambo's Restaurants, Inc.'s former facility at 1860
The Alameda, San Jose, California; excluding all
other employees, guards and supervisors as defined
in the Act.
3. At all pertinent times Local 19 represented a majori-
ty of Vicorp's employees within the units set forth above
and was recognized by Vicorp as their exclusive collec-
tive-bargaining representative.
4. At all pertinent times Daniel A. Fragnito was Local
19's executive vice president and its agent within the
meaning of Section 2 of the Act.
5 On and since 20 November Vicorp has requested
that Local 19 meet and bargain with it concerning the
wages, rates of pay, hours, and working conditions of
Vicorp's employees within the two units.
6. At all pertinent times Vicorp has neither executed
nor been subject to any valid collective -bargaining agree-
ments with Local 19 covering the wages, rates of pay,
hours, and conditions of its employees within those units.
7. On II December representatives of Local 19 met
and refused to bargain in good faith with representatives
of Vicorp concerning the wages, rates of pay, hours, and
20 Electrical Utility Workers (Indianapolis Power Co), 208 NLRB 124
(1974)
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working conditions of Vicorp's employees within the
two units, thereby violating Section 8(b)(3) of the Act.
8. Local 19 did not violate Section 8(b)(1)(A) of the
Act by its late January 1985 notices addressed to Vicorp
employees Solario, Badgely, and DeVaughn advising
them of their dues delinquencies and the possible conse-
quences of failing to cure those delinquencies.
9. The aforesaid unfair labor practice affected and af-
fects commerce as defined in Section 2 of the Act.
THE REMEDY
Having found Local 19 engaged in an unfair labor
practice in violation of Section 8(b)(3) of the Act, I rec-
ommend the traditional remedies, i.e., that Local 19 be
directed to meet and bargain with Vicorp at its request
concerning the wages, rates of pay, hours, and working
conditions of Vicorp's employees within the units found
appropriate and post appropriate notices.
The General Counsel and the Charging Party request
the additional extraordinary remedy of an order directing
Local 19 to reimburse their litigation costs21 on the
ground Local 19 (by experienced counsel) in its answer
to the 21 March complaint denied allegations admitted in
Local 19's answer to the 22 January complaint'22 denied
complaint allegations within its knowledge23, and failed
to appear and support its denial it violated the Act by its
I1 December (and subsequent) failure and refusal to bar-
gain with Vicorp over the wages, etc., of Vicorp's Santa
Clara and San Jose employees because it had no valid
defense, causing the Government and the Charging
Party to expend considerable time, effort, and expense in
developing and placing those facts in the record.
The Board has stated it generally prefers "to refrain
from assessing litigation expenses against a respondent,
notwithstanding that the respondent may be found to
have engaged in `clearly aggravated and pervasive mis-
conduct' or in the `flagrant repetition of conduct previ-
ously found unlawful' where the defenses raised by that
respondent are `debatable' rather than 'frivolous. 11,24
Since its issuance of the seminal cases in this area '25 the
Board has reviewed approximately 50 cases in which ex-
traordinary relief was requested, but rarely granted it.
Typically the Board rejected the request with statements
that: "Although we find all of Respondent's contentions
to be wholly lacking in merit and/or unsupported by the
record, we cannot say that all of its defenses were pa-
tently frivolous,"26 "We do not find in the instant case
21 For investigation, preparation, presentation, and conduct of the pro-
ceeding,
22 Filing and service of the charges, the appropriateness of the two
bargaining units, Local 19's receipt of the 20 November Vicorp letter,
and the holding of the 11 December meeting between representatives of
Local 19 and Vicorp as a consequence of the 20 November letter
23 Vicorp's ownership of a chain of restaurants, including the Santa
Clara and San Jose restaurants , Fragnito 's office and agency status, and
that Local 19's representatives on I1 December refused to bargain with
Vicorp's representatives over the wages, etc, of Vicorp's Santa Clara
and San Jose restaurants
24 Heck's Inc, 215 NLRB 765 at 767 (1974).
25 Heck's Inc., 191 NLRB 886 (1971), and Tudee Products, 194 NLRB
1234 (1972)
26 Beira Mfg Co, 233 NLRB 1126 (1977) To similar effect, Winn
Dixie Stores, 224 NLRB 1418 (1976), affd 567 F 2d 1343 (2d Cir 1978),
that respondent's defenses are meritless on their face.
"27 etc. 28
This is not to say the Board never (other than in
Tiidee) has directed a respondent to pay litigation costs
to the Government and the charging party; such costs
were awarded in Koval Press, 241 NLRB 1261 (1979),
J.P. Stevens Co., 244 NLRB 407 (1979), Wellman Indus-
tries, 248 NLRB 325 (1980), and Autoprod, Inc., 265
NLRB 331 (1982). In these cases, the traditional remedy
for a refusal-to-bargain violation was found inadequate.
As the Board stated in Wellman:
[W]e view Respondent's latest refusal to bargain as
not occasioned by a reasonably debatable point of
view but, instead, a meritless attempt to relieve
itself of its statutory duty to bargain in good faith.
The Board went on to award litigation costs to the gov-
ernment and the charging party, stating:
[T]he . . principle that litigation expenses are, in
limited circumstances, recoverable . . . flows from
the public interest which seeks to remove frivolous
litigation from crowded Board and court dockets
Reimbursement for legal expenses occasioned by
such litigation vindicates that interest
Along the same lines, in Koval the Board awarded liti-
gation expenses with the statement:
. . . Respondent's defenses to the 8(a)(5) charge
herein are without merit and can only be character-
ized as patently frivolous . . . . It is thus apparent
that Respondent is merely resting on denials in its
pleadings-frivolous denials at that-without setting
forth specific facts showing that there is a genuine
issue for hearing. The only logical inference to be
drawn is not that Respondent seeks to raise legiti-
mate issues, but that it seeks to delay the proper ef-
fectuation of the policies of the Act by its unlawful
refusal to bargain . . . [I]n view of the facts . . . we
deem it necessary to order the remedial measures
sought by the General Counsel . . . . Such meas-
ures are necessary to discourage future frivolous
litigation, to effectuate the purposes of the Act, and
to serve the public interest.
Counsel for Local 19 certainly acted irresponsibly by
filing an answer to the complaint which necessitated
proof (at a hearing at which he did not appear) in sup-
port of the complaint allegations concerning the filing
Boston University, 228 NLRB 1008 (1977), enfd in part 575 F 2d 301 (1st
Car 1978), Time Chevrolet, 242 NLRB 625 (1979)
21 Lowenstein Corp, 264 NLRB No 14 (Sept 14, 1982), enfd 736 F 2d
1559 (D C Car. 1984)
21 Little Rock Mailers Union 89 (Little Rock Newspapers), 219 NLRB
707 (1975), Meat Cutters Local 222 (Iowa Beef Processors), 233 NLRB 839
(1977), Broadcast Employees Local 31 (CBS), 237 NLRB 1370 (1978); Dur-
alee Fabrics, 246 NLRB 677 (1979), Electrical Workers Local 1507 (GE),
252 NLRB 473 ( 1980), Eastern Maine Medical Center, 253 NLRB 224
(1980), Ehason Corp, 256 NLRB 1121 (1981); Tri-State Building Council,
257 NLRB 295 (1981), United Cable Television, 265 NLRB 706 (1982),
Hartz Mountain Corp, 266 NLRB 1226 (1983), Meyers Industries, 268
NLRB 493 (1984), Vitek Electronics , 268 NLRB 522 (1984)
HOTEL & RESTAURANT EMPLOYEES LOCAL 19 (SEASONS RESTAURANT)
and service of the charges, the appropriateness of the
bargaining units, Local 19's receipt of the 20 November
Vicorp letter, the 11 December meeting, Vicorp's own-
ership of a restaurant chain including the San Jose and
Santa Clara restaurants, Fragnito's office and agency
status, and that on 11 December Local 19's respresenta-
tives refused to bargain.
That conduct delayed and adversely affected the
8(b)(3) rights of Vicorp and its employees represented by
Local 19 29
However, merit has been found in Local 19's denial in
its answer that it violated Section 8(b)(1) of the Act by
notifying its members employed by Vicorp they were de-
linquent in their dues payments and advising them of
possible consequences of their failure to cure those delin-
quencies.
There are no reported cases where the Board has
granted partial extraordinary relief; i.e., ordered a re-
spondent to pay only those portions of the Government's
and the Charging Party's litigation expenses attributable
to proving facts establishing a violation to which the re-
spondent advanced frivolous defenses. To the contrary,
the Board has rejected requests for extraordinary relief
where it "could not say all of its [respondent's] defenses
were patently frivolous."30
I therefore deny the requests for extraordinary relief.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3i
ORDER
The Respondent, Hotel, Motel, Restaurant Employees
and Bartenders Union, Local 19, its officers, agents, and
representatives, shall
1. Cease and desist from failing or refusing to bargain
with Vicorp over the wages, rates of pay, hours, and
working conditions of:
All full-time and regular part-time employees em-
ployed by Vicorp Restaurants, Inc. at its 2910 El
Camino Real, Santa Clara, California facility per-
forming work in and covered by the wage and clas-
sification schedules set forth in the June 1, 1982
through June 30, 1983 collective-bargaining agree-
ment between Hotel, Motel, Restaurant and Bar-
tenders Union, Local 19, and Sambo's Restaurants,
Inc. covering Sambo's Restaurants, Inc., former fa-
cility at 2910 El Camino Real, Santa Clara, Califor-
nia; excluding all other employees, guards and su-
pervisors as defined in the Act.
and
All full-time and regular part-time employees em-
ployed by Vicorp Restaurants , Inc at its 1860 The
Z9 At the 11 December meeting, Local 19 refused to discuss Vicorp's
proposal to lower the portion of insurance cost paid by the employees
30 Beua Mfg Co, ibid
31 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
849
Alameda, San Jose, California facility performing
work in and covered by the wage and classifications
schedules set forth in the June 1, 1982 through June
30, 1983 collective-bargaining agreement between
Hotel, Motel, Restaurant and Bartenders Union
Local 19 and Sambo's Restaurants, Inc. covering
Sambo's Restaurant, Inc.'s former facility at 1860
The Alameda, San Jose, California; excluding all
other employees, guards and supervisors as defined
in the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Bargain with Vicorp at its request over the wages,
rates of pay, hours and working conditions of Vicorp's
employees within the units set out above and, if agree-
ments are reached, execute such agreements.
(b) Post at its offices and meeting halls, copies of the
attached notice marked "Appendix." 13? Copies of the
notice, on forms provided by the Regional Director for
Region 32, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be takeije'by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Furnish the Regional Director for Region 32, at his
request, with sufficient signed copies of the notice for
distribution to Vicorp for posting, at its option, on its
employee bulletin boards at its San Jose and Santa Clara
Seasons restaurants.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
32 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pur,,uant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial before the above agency, it issued a decision
finding we committed an unfair labor practice and di-
rected we post this notice advising you:
WE WILL NOT fail or refuse to bargain in good faith
with Vicorp Restaurants, Inc., d/b/a Seasons Restaurant,
over the wages, rates of pay, hours, and working condi-
tions of:
All full-time and regular part-time employees em-
ployed by Vicorp Restaurants, Inc. at its 2910 El
Camino Real, Santa Clara, California facility per-
forming work in and covered by the wage and clas-
850
and
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sification schedules set forth in the June 1, 1982
through June 30, 1983 collective-bargaining agree-
ment between Hotel, Motel, Restaurant and Bar-
tenders Union, Local 19, and Sambo's Restaurants,
Inc. covering Sambo's Restaurants, Inc's, former
facility at 2910 El Camino Real, Santa Clara, Cali-
fornia; excluding all other employees, guards and
supervisors as defined in the Act.
All full-time and regular part-time employees em-
ployed by Vicorp Restaurants, Inc. at its 1860 The
Alameda, San Jose, California facility performing
work in and covered by the wage and classifications
schedules set forth in the June 1, 1982 through June
30, 1983 collective-bargaining agreement between
Hotel, Motel, Restaurant and Bartenders Union
Local 19 and Sambo's Restaurants, Inc. covering
Sambo's Restaurant, Inc.'s former facility at 1860
The Alameda, San Jose, California; excluding all
other employees, guards and supervisors as defined
in the Act.
WE WILL bargain in good faith with Vicorp at its re-
quest over the wages. rates of pay, hours, and working
conditions of Vicorp's employees within the above units
and, if agreements are reached, execute such agreements.
HOTEL, MOTEL, RESTAURANT EMPLOYEES
& BARTENDERS UNION, LOCAL 19, HOTEL
& RESTAURANT EMPLOYEES INTERNA-
TIONAL UNION, AFL-CIO