Katz's Deli

National Labor Relations Board - Board Decisions

Feb 16, 1995

316 N.L.R.B. 318 (N.L.R.B. 1995)

318
316 NLRB No. 65
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer and Local 131 have excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us
that they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings.
The Employer and Local 131, in taking exception to the judge’s
reliance on the two petitions signed by employees for Local 100,
specifically question his failure to rely on the testimony of four em-
ployees who testified that the petitions presented to them for signa-
ture were blank. The Employer and Local 131 also contend that the
judge erred in failing to find that the employees, as they further tes-
tified, were coerced or deceived into signing the blank petitions. We
find no merit in these contentions. In finding the petitions to be
valid, the judge by necessity implicitly discredited the employees’
testimony (described in subsec. A of sec. II of his decision) that the
petitions they signed were blank. He also specifically rejected the ar-
gument that coercion and deceit were used to obtain the employees’
signatures to the petitions. In this regard, he found that the state-
ments of Lynch, the Local 100 representative who solicited the em-
ployees to sign the petitions, to the effect that the employees could
or would lose their benefits if they changed from representation by
Local 100 to Local 131, were ‘‘not necessarily untrue, and [are] in
fact likely’’ in such a situation. He also discredited testimony that
Lynch threatened employees with a loss of jobs if they did not sign
the petitions. In light of our agreement with these findings, we adopt
the judge’s findings with respect to the petitions.
We find it unnecessary to speculate about the Employer’s motive
for recognizing Local 131 and we do not rely on the judge’s state-
ment that the Employer’s conduct demonstrates that it wished to rid
itself of expensive pension and welfare obligations under its contract
with Local 100.
1 While every apparent or nonapparent conflict in the evidence
may not have been specifically resolved here, my findings are based
on my examination of the entire record, my observation of the wit-
nesses’ demeanor while testifying, and my evaluation of the reliabil-
ity of their testimony. Accordingly, any testimony which is incon-
sistent with or contrary to my findings is discredited.
Katz’s Delicatessen of Houston Street d/b/a Katz’s
Deli and Hotel Employees & Restaurant Em-
ployees International Union, Local 100 of New
York & Vicinity, AFL–CIO and Local 131,
International Brotherhood of Trade Unions,
Party in Interest
Local 131, International Brotherhood of Trade
Unions and Hotel Employees & Restaurant
Employees International Union, Local 100 of
New York, New York & Vicinity, AFL–CIO
and Katz’s Delicatessen of Houston Street d/b/a
Katz’s Deli, Party in Interest. Cases 2–CA–
25065, 2–CA–25079, 2–CA–25124, 2–CA–25266,
and 2–CB–13722
February 16, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On September 2, 1994, Administrative Law Judge
Steven B. Fish issued the attached decision. Katz’s
Deli (the Employer) and Local 131, International
Brotherhood of Trade Unions filed exceptions and sup-
porting briefs, and the General Counsel filed an an-
swering brief and filed cross-exceptions and a support-
ing brief.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Katz’s Delicatessen of
Houston Street d/b/a Katz’s Deli, New York, New
York, its officers, agents, successors, and assigns, and
the Respondent, Local 131, International Brotherhood
of Trade Unions, New York, New York, its officers,
agents, and representatives, shall take the action set
forth in the Order.
Mindy E. Landow, Esq., for the General Counsel.
Joel E. Cohen, Esq. (Mudge, Rose, Guthrie, Alexander &
Ferdon), of New York, New York, for the Respondent
Employer.
J. Warren Mangan, Esq. (O’Connor & Mangan, P.C.), of
Mineola, New York, for the Respondent Union.
Steven O’Beirne, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges filed by Hotel Employees & Restaurant Employees
International Union, Local 100 of New York, New York &
Vicinity, AFL–CIO (Local 100 or the Charging Party), the
Regional Director for Region 2 on May 22, 1992, issued an
order consolidating cases, consolidated complaint and notice
of hearing, alleging that Katz’s Delicatessen of Houston
Street d/b/a Katz’s Deli (Respondent Employer, Katz’s, Re-
spondent, or Katz) and Local 131, International Brotherhood
of Trade Unions (Respondent Union or Local 131) violated
Section 8(a)(1), (2), (3), and (5) and Section 8(b)(1)(A) and
(2) of the Act, respectively.
The trial with respect to the allegations raised by the com-
plaint was held before me in New York, New York, on No-
vember 17, 18, and 24, 1993. Briefs have been filed by the
General Counsel, Respondent Employer, and Respondent
Union and have been carefully considered. Based on the en-
tire record,1 including my observation of the demeanor of the
witnesses, I make the following
319KATZ’S DELI
2 Local 100 represented Katz’s waiters, waitresses, countermen,
buspersons, chefs, kitchen personnel, and porters.
3 All subsequent dates hereinafter referred to are in 1991, unless
otherwise indicated.
4 At that time Katz’s employed 34 employees in the unit.
5 Although not part of Local 100’s written proposals, there was
discussion concerning a pending arbitration filed by Local 100 con-
cerning minimum salaries.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent Employer is a corporation with a place of
business in New York, New York, where it is engaged in the
operation of a public restaurant selling food and beverages.
Annually, Katz’s derives gross revenues in excess of
$500,000 and purchases and receives at its facility products,
goods, and materials valued in excess of $5000 directly from
points outside the State of New York.
It is admitted and I so find that Katz’s has been and is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
It is also admitted and I so find that Local 100 and Local
131 are labor organizations within the meaning of Section
2(5) of the Act.
II. FACTS
A. The Alleged Refusal of Katz’s to sign a Contract
and the Recognition of Local 131
Katz’s and Local 100 have maintained a collective-bar-
gaining relationship for many years and have been parties to
a number of collective-bargaining agreements.2 Alan Dell
and Fred Austin purchased the restaurant in 1988, and subse-
quently entered into a collective-bargaining agreement with
Local 100, which by its terms was effective from April 1,
1988, to March 30, 1991.3
The agreement provides in article 19, entitled visitation,
that ‘‘a duly authorized union representative shall be admit-
ted to the Employer’s place of business at all reasonable
times.’’ The contract also provides for welfare contributions
to be made by Katz’s into Local 100’s welfare fund of
$31.25 per week for each full-time and regular part-time em-
ployee and $6.25 per day for each other employee as of No-
vember 1, 1989, and for pension contributions, effective Oc-
tober 1, 1988, of $16 per week for each full- and regular
part-time employee to the Local 100 pension fund.
Timothy Lynch, a business representative for Local 100,
was assigned to service Katz’s sometime in 1989.
In January 1991, Local 131 began an organizing campaign
at Katz’s facility. Sam Sali, Local 131’s president, enlisted
the support of Luigi Gjokaj, an employee of Katz’s in dis-
tributing and soliciting employees of Katz’s to sign author-
ization cards on behalf of Local 131. Gjokaj in turn enlisted
the support of fellow employees Johnny and Rafael in this
effort. Between January 24 and 29, they obtained signed au-
thorization cards from seven Katz’s employees. On January
30, 14 additional cards were executed by Katz’s employees,
which brought Local 131’s total to 21.4 On that date, Thom-
as Lee, a business representative for Local 131 brought these
21 cards to the Brooklyn Regional Office. He was given a
receipt for the cards, dated January 30, but was told that the
proper Region to file the petition was at Region 2 in Manhat-
tan. Lee for some reason, unexplained in the record, waited
until February 1 to file the petition at Region 2. While Re-
spondent Employer contends that the petition would have
been timely had it been filed on January 30, it is not correct
in that assertion. The insulated period of 60 days includes the
expiration date of the existing contract. Therefore, a petition
to be timely must be filed 61 days before the termination of
the contract. DeLuxe Metal Furniture Co., 121 NLRB 995,
1000, 1001 (1958). Thus, the petition filed by Local 131 was
untimely whether or not it was considered filed on January
30 or February 1.
Thereafter, Local 131 argued that the existing contract was
not a bar because of an allegedly unlawful union-security
clause. This contention was rejected by the Regional Director
for Region 2 in an order dismissing petition on February 26.
Thereafter, representatives of Local 100 and Katz’s met to
negotiate over terms of a successor collective-bargaining
agreement. At the first meeting on February 28, Kenneth
Kirschner, attorney for Katz’s, and Austin were present rep-
resenting Respondent Employer. Lynch, several unit employ-
ees, and Darwin Lanyi, Local 100’s vice president, rep-
resented Local 100. Each party presented a list of proposals,
which were discussed extensively at that meeting. At the out-
set of the meeting, Lynch, in view of his knowledge of Local
131’s interest in the shop, informed Katz’s that by March 30,
the expiration date of the agreement, Local 100 would
present Katz’s last offer to the employees, and if it was re-
jected, he intended to call a strike. According to Austin,
Lynch added that Katz’s would ‘‘be shut down.’’ Addition-
ally, Kirschner stated at this meeting that there would be no
final agreement unless there was an agreement on all terms
of a contract.
The parties then had three other bargaining sessions,
March 1, 22, and 25. Dell rather than Austin represented Re-
spondent Employer along with Kirschner at these meetings.
The same representatives for Local 100 were present, except
that Lynch was not present at one of the first two meetings
in March.
The final negotiation session between the parties occurred
on March 25. Although all parties agree that not all issues
had been resolved by the close of that meeting, the wit-
nesses, principally Lynch and Dell, differed sharply as to
what items remained open when the March 25 meeting con-
cluded. According to Lynch, the only issues which had not
been either agreed on or withdrawn by the end of March 25
were wages, a pending arbitration,5 and contributions to the
welfare fund. Local 100 had presented a list of 11 proposals
for a renewal agreement. Lynch and Dell agreed that wages
and welfare contributions were still outstanding issues by the
end of the meeting. According to Lynch, and not disputed by
Dell, the parties had agreed on the duration of the agreement
(April 1, 1991, to March 31, 1994), and Local 100 had with-
drawn its proposals for increases in vacations, paid holidays,
paid sick days, jury duty, bereavement, and superseniority for
its shop steward. Lynch also testified that Local 100 with-
drew its proposal for increases in pension contributions, but
Dell contends that this issue was still open as of the close
of the March 25 meeting.
Katz’s also submitted a list of 11 proposals which were
discussed during the course of the parties’ bargaining. Ac-
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cording to Lynch, and again not disputed by Dell, the parties
reached agreement on several of Katz’s proposals, with some
modification, such as forfeiture of 2 days’ accrued benefits
if an employee resigns without giving more than 2 days’ no-
tice, a proposal concerning consecutive days off and Em-
ployer discretion, an agreement to increase the probationary
period from 30 to 60 days on request of the Employer, elimi-
nation of the requirement in the expired contract that Katz’s
must pay an employee pending arbitration, that the contract
would contain base salary levels as reflected in prior cor-
respondence between the parties, and the elimination of a
differential for former Local 1 employees.
Lynch also testified that Katz’s had withdrawn its propos-
als to reduce the guarantee for showing up from a full day
to a half a day. This testimony is not disputed by Dell, but
Dell does contend that other proposals that Lynch also testi-
fied were withdrawn, such as an open shop, elimination of
the hiring clause, a requirement that employees contribute to
welfare fund increases, and a proposal that business rep-
resentatives must give advance notice to management before
coming onto the premises, had not been withdrawn and were
still open items as of the end of March 25. In this connec-
tion, bargaining notes taken by Lynch which appear to reflect
the March 25 session corroborate Lynch that the open shop,
elimination of hiring clause, and requirement for employees
to contribute to the welfare fund were withdrawn by Katz’s.
However, with respect to the proposal for advance notice to
management by the business representative, Lynch’s notes
state, ‘‘the Union rejects advance notice to management visi-
tation proposal.’’
There was also a conflict in the testimony of Dell and
Lynch with respect to two other proposals of Katz’s. The ex-
piring contract provided that with respect to arbitration, any
and all disputes, at the option of the party seeking arbitration,
shall be submitted either to the New York State Mediation
Board, to the American Arbitration Association (AAA), or to
Arbitrators Robert Gosseen, Henry Berger, Ira Drogin,
George Sabatella, Charles Chuisano, Ronald Straci, Lou
Tempera, or Gerald Schillian. Katz’s proposal 10 reads,
‘‘provide for arbitration with American Arbitration Associa-
tion or Ralph Berger, Jonathan Liebowitz, Martin Scheinman,
Robert Light, and Bonnie Siber Weinstock in rotation.’’ Ac-
cording to Dell, there was no agreement on this proposal of
Katz’s, although Lynch stated at the negotiations that they
would think about it and ‘‘maybe would come to an agree-
ment on this one, but he had to get back to the people.’’
Lynch, on the other hand, testified that an agreement was
reached on this proposal. Lynch’s testimony, however, was
not very specific as to what precisely was agreed on. He tes-
tified that the parties agreed to add some names, delete other
names, and add the AAA. His testimony reflected that Ralph
Berger was added, Robert Light was deleted, but he could
not recall the other names of the arbitrators that were either
included in the alleged agreement or deleted from the prior
contract. Lynch’s bargaining notes also do not reflect an
agreement on this clause, and indicates that the union
counterproposes arbitration clause with ‘‘American Arbitra-
tion Association, New York State Mediation Board, Ralph
Berger or Elliot Schriffman in rotation.’’
Katz’s also proposed a management-rights clause. Accord-
ing to Dell, Kirschner had written up a clause and submitted
language to Local 100, and at the close of the March 25
meeting, Local 100 was going to get back to Katz’s on
whether it would be agreed on. Lynch, on the other hand,
contends that an agreement was reached on the management-
rights clause proposed by Katz’s, plus two minor additions
which were made by Local 100 representatives. A copy of
this typed clause, with the two written additions, was intro-
duced into the record. Lynch could not recall at which nego-
tiation session this clause as revised was agreed to, but he
was certain that agreement had been reached. Lynch’s bar-
gaining notes contained no reference to either an agreement
or even a discussion of this clause. Katz’s proposals list
management rights as proposal 11. Lynch’s notes of the last
session makes reference to #11, but is blank next to that
number. Darwin Lanyi’s bargaining notes next to #11 contain
the words ‘‘revised language,’’ which according to Lynch re-
flects that an agreement was reached on Katz’s management-
rights clause with the revised language.
The parties agree that at the close of the March 25 session,
Katz’s representatives indicated that because of vacations and
other commitments, they could not meet again until April 9
or 10. The witnesses also agree that the subject of an exten-
sion agreement came up at that time. Dell contends that
Lynch on behalf of Local 100 suggested signing an extension
agreement, in view of the unavailability of Katz’s officials,
but that Katz’s refused to agree to sign such an extension,
because it felt that it could get more concessions from Local
100. Lynch, however, asserts that Kirschner on behalf of
Katz’s suggested signing an extension agreement, and that
Local 100 refused to agree because it wanted to keep the
pressure on Katz’s. Both Dell and Lynch agree that Lynch
did inform Katz’s on March 25, as he had stated at earlier
sessions, that he intended to present Katz’s last offer to the
employees prior to March 30, and if it is rejected, he would
call a strike.
There were no further formal negotiation sessions between
the parties. However, Austin testified that on March 26,
Lynch stopped by the restaurant and they had a discussion
concerning negotiations, concerning which Austin imme-
diately wrote down on a one-page summary. According to
Austin, corroborated by his notes, Lynch informed Austin
that he (Lynch) had spoken to Local 100’s attorney and to
Chuck Amadeo, Local 100’s president, and that Local 100
wanted to work out the contract. Lynch referred to the issue
of the arbitration and in writing acceptance of current salary
levels without retroactivity. There was also a reference to
welfare payments and retroactivity for these payments. Local
100’s original proposal provided for increases to $47 per em-
ployee per week for the first year, $55.40 the second, and
that the contract shall be reopened to establish insurance
rates for the third year, effective April 1, 1993. Austin’s
notes indicate that Lynch suggested that if Katz’s agreed to
pay last year’s rate, Local 100’s proposal would be $41, $47,
and $55.40 over a 3-year period, with retroactivity to some-
time in 1990.
Austin also asserts that Lynch mentioned something to
him about a 2-week extension of the contract, and his notes
also contain a reference to a 2-week extension, as well as the
fact that the contract expires on March 30. However, neither
Austin’s testimony nor his notes reflect what specifically
Lynch said about a 2-week extension during the conversa-
tion. Austin contends that he reported his conversation with
Lynch to Kirschner. Curiously, Lynch denies having any
321KATZ’S DELI
6 One of the employees recalled that Lynch made specific mention
of the possible loss of pension benefits if employees went into a dif-
ferent union.
conversation with Austin about negotiations prior to March
30.
Lynch testified that on the morning of March 30, he re-
ceived a phone call at home from Austin. According to
Lynch, Austin informed him that Katz’s wished to reach a
conclusion on the contract, and that Kirschner wanted to
speak to him about the matter. Lynch claims that he told
Austin that he would be at the restaurant in the afternoon.
Austin denies this conversation in its entirety, and adds that
he does not have and never had Lynch’s home telephone
number.
Lynch further testified that a few minutes later, he re-
ceived a phone call directly from Kirschner, who told Lynch
that he wanted to reach a conclusion on all open issues.
Lynch asserts that Kirschner made an offer on wage in-
creases, which Lynch wrote down on top of his bargaining
notes, of no raise for an employee in the first year of the
contract, a raise of $2 and $5 per week for tipped employees,
and $5 and $10 per week for nontipped employees, in the
second and third year of the agreement. Lynch asserts further
that he tried to persuade Kirschner to raise that offer, but
was not successful, and finally agreed to recommend it to the
employees. According to Lynch, he and Kirschner also dis-
cussed and reached agreement on the welfare payments’
issue. Lynch asserts that the agreement was for Katz’s to pay
$41 per week, per employee, retroactive to December 1990,
$47 effective April 1992, and $55.40 effective April 1993.
Finally, Lynch also testified that he informed Kirschner that
if the agreement was ratified by the employees, that Local
100 would withdraw the arbitration over Katz’s failure to ad-
here to contract minimum rates. Lynch further claims that he
informed Kirschner that he intended to recommend that the
employees ratify the package later that day. The General
Counsel contends that Lynch also testified that Kirschner
agreed during this conversation to prepare a typed agreement
for execution. Lynch furnished no such testimony, although
he did testify that at the outset of negotiations, Kirschner
stated that it was his intention to type up any agreement that
may be reached, and that Local 100 agreed with that proce-
dure.
Lynch arrived at the restaurant at about 2 p.m. While
Lynch claims that he discussed with Dell the fact that he and
Kirschner had reached agreement on the telephone, and they
went over the terms that had been agreed on, Dell emphati-
cally denies any such discussion with Lynch, or that Kirsch-
ner informed him of any agreement being reached between
Kirschner and Lynch. In that connection, Austin corroborates
Dell in not being informed that there was any agreement
reached or even communications between Kirschner and
Lynch on March 30.
Lynch then met with the unit employees in small groups,
using fellow employees who spoke English to translate, and
according to Lynch told them the details of the agreement
that had been reached. Lynch asserts that he went over with
them each and every change from the prior contract, as well
as the fact that there would be no raise in the first year of
the contract for any employees. He told them that he was
recommending that they ratify the agreement and, if they did
not, he would be recommending that they strike. Lynch adds
that he told them specifically that there would be no raise
in the first year, and that employees asked about the possibil-
ity of moving up the first raise from April 1992 to December
1991, to match the date of increased welfare contributions.
Lynch claims that he didn’t think that was possible, but he
would check with Kirschner.
Lynch asserts that he then contacted Kirschner and asked
about the employees’ request, but was not successful in per-
suading Kirschner to change Respondent’s offer. Lynch then
allegedly reported back to the employees, and that they ac-
cepted Respondent’s offer. According to Lynch, he prepared
a document entitled, ‘‘Katz’s Deli Contract Ratification vote.
Are you in agreement with the boss’s last offer?’’ On this
document, there were two columns, headed, ‘‘yes’’ and
‘‘no.’’ Lynch obtained signatures from 22 employees under
the yes column.
Local 131 presented employee witness Genero Adames,
Mario Adames, Bernardo Marinez, and Jose Marinez, who
furnished testimony concerning their execution of the above-
described document. These witnesses, although not totally
consistent, were essentially mutually corroborative in most
respects. They assert that Lynch told them that by signing
the paper they would be agreeing to a contract with Local
100 that would provide the employees with better benefits.
According to the employees, however, Lynch provided no
specifics as to what terms were being agreed to or what bet-
ter benefits they would be receiving. The employees also as-
sert that Lynch criticized Local 131 as a ‘‘ghost union,’’ and
told them that if Local 131 got in, or if they did not sign
the paper for Local 100, the employees would lose their ben-
efits.6 The employees also insist that the top of the paper
was blank when they all signed their names. Finally, the em-
ployees also testified that Lynch told them that if they did
not sign the paper, they would have to go on strike.
A fifth employee witness, Luigi Gjokaj, who was Local
131’s main card solicitor, also testified concerning the events
of March 30. He confirmed as noted that Lynch had spoken
to employees in groups on that day, but he, Gjokaj, refused
to speak to Lynch on that day as he was a Local 131 sup-
porter. After Lynch left, however, Gjokaj testified that he
was told by a number of employees that they signed a paper
for Local 100. The employees also told him that there was
an agreement between Local 100 and Katz that wasn’t good
for the employees, and that there would be no raise for the
employees.
Lynch testified that after the employees ratified the Re-
spondent’s final offer, he so notified Dell, and discussed with
him the signing of an extension agreement. According to
Lynch, he presented to Dell a document which had been pre-
pared on March 26 at the suggestion of his superior at the
Union, Darwin Lanyi. Lynch asserts that the document was
a standard union form for extension agreements, which Lanyi
told him was to be signed only in the event that an agree-
ment was reached, in order to give the parties 2 weeks to
prepare and execute a formal agreement. Lynch further as-
serts that Lanyi and he were both of the opinion that the exe-
cution of this document would be sufficient to bar a petition
from another union. Lynch asserts that he was unfamiliar
with these forms, and that he had never used them before.
The document as prepared by the Union states that the
agreement was made as of March 26, 1991, between Katz’s
322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Lynch had asserted that he showed Dell a copy of the document
signed by employees reflecting ratification of the alleged agreement.
and the Union, and that all the terms of the contract between
the parties dated as of April 1, 1988, ‘‘shall be continued in
full force and effect for a period of 2 weeks, or until the par-
ties enter into a new collective-bargaining agreement, or until
the parties reach a good-faith impasse with respect to nego-
tiations, whichever occurs first.’’ The second paragraph of
the agreement provides that all terms of any new collective-
bargaining agreement shall be retroactive to April l the date
the collective-bargaining agreement described above termi-
nated or expired prior to being extended. The date that the
Union placed next to April on the agreement is in dispute.
Lynch was not sure initially in his testimony, but after re-
viewing another copy of the agreement, his memory was re-
freshed that the document listed April 13 as the date of retro-
activity. The document does not indicate specifically on what
date the extension agreement expires. According to Lynch,
although it was typed and dated March 26, he believed that
it meant that the expiration of the extension agreement was
2 weeks from the expiration date of the contract or April 13.
Lynch further testified that although there was no bargaining
session scheduled on March 30, he intended to present Re-
spondent’s last offer to the employees, recommend against it,
and call a strike if the employees rejected the offer. He was
hopeful he claims, that the threat of an imminent strike
would induce Respondent to change their offer sufficiently
so that agreement could be reached, and to enable the exten-
sion agreement to be signed.
Lynch alleges that he showed the extension agreement to
Dell, and told him that the agreement was for the purpose
of giving Dell’s attorney time to prepare the agreement. Dell,
then according to Lynch, telephoned Kirschner, and reported
to Lynch that Kirschner wanted to cross out the lines of the
agreement that stated that the agreement will be in effect ‘‘or
until the parties enter into a new collective bargaining agree-
ment, or until the parties reach a good faith impasse with re-
spect to negotiations, whichever occurs first.’’ Dell also stat-
ed that Kirschner wanted the date of retroactivity changed
from April 13 to April 1. Lynch did not recall whether Dell
informed him why Kirschner wanted these changes to be
made. However, Lynch claims that he had no problems with
eliminating the language requested by Respondent, since they
had already reached agreement, and no further bargaining
was contemplated.
Lynch and Dell then crossed out and initialed the changes,
and both signed the agreement. Dell admits to signing the
extension agreement, but presents a significantly different
version of events, leading up to the signing. According to
Dell, Lynch arrived at the restaurant, and before speaking to
any employees presented him with the extension agreement
and said that unless Dell signed it, there would be pickets
in front of the store and the Union would close down the res-
taurant. He also told Dell that the agreement would last until
April 9 or 10. Dell also claims that the date on the original
document presented to him for the retroactivity date was
April 10, not April 13 as testified to by Lynch. Dell then as-
serts that he called his attorney at home and notified him of
the above developments. Kirschner allegedly told Dell that if
the Union was willing to sign the extension agreement, it
means that it was buckling a little, and that Respondent
might be able to obtain some concessions. Therefore, Kirsch-
ner instructed Dell that he could sign the extension agree-
ment, but he should obtain some concessions from the Union
first.
According to Dell, Lynch agreed to no raises and for no
pension increases the first 2 years, with the third year left
open for further discussion on both issues. Dell also asserts
that there was some agreements reached on increases for
welfare payments, retroactive to December, for the first 2
years of the contract, again with the third year to be dis-
cussed later. Dell further claims that there were no discus-
sions about several other items which were still unresolved,
including some management proposals which had not been
withdrawn.
After obtaining these concessions, Dell testified that he
called Kirschner, informed him about what these agreements
were, and they discussed signing the extension agreement. At
that time, Dell read Kirschner the agreement as proposed by
the Union. Kirschner informed Dell that he wanted certain
lines out of the agreement, because they would permit the
negotiations to go on indefinitely, and he did not want nego-
tiations to go on past April 10. Indeed, Lynch, when he pre-
sented the agreement to Dell, allegedly informed Dell that
the agreement would last until April 9 or 10. At that point,
Dell claims that Kirschner and Lynch spoke on the phone
and discussed the removal of this language. After the phone
conversation, Dell asserts that Lynch told him that he agrees
to remove the language (the same three lines that Lynch tes-
tified were eliminated) that Kirschner objected to being in-
cluded. Dell further claims that it was Lynch’s idea to
change the retroactively date from April 10 to April 1, and
that Kirschner agreed to that as well. Dell agrees, as noted,
that the changes were made, both of them initialed the
crossouts and signed the document. Dell adds that Lynch told
him that he would get back to Dell to set up a meeting, for
either April 9 or 10.
Dell denies emphatically that an agreement was reached
on all terms of a new contract, or that Lynch informed him
that employees had ratified an alleged agreement. Dell did
recall that Lynch spoke to employees in groups on March 30,
but only after the signing of the extension agreement. Dell
denies that he knew what Lynch was speaking about with
employees, or that he was ever shown a copy of the paper
wherein Lynch had obtained signatures from employees.7
Lynch testified further that later on that same evening,
while at home, he prepared a document entitled agreement
between Katz’s and Local 100. The document reflects the
terms of the agreement essentially as he had testified, plus
a statement that the ‘‘2 week extension signed for the pur-
pose of employer to execute the new agreement.’’ The docu-
ment also reflects the statement, ‘‘ratified by a majority of
the workers.’’ Additionally, the document indicates with re-
spect to the arbitration clause, ‘‘change arbitration clause to
read . . . . before AAA or Ralph Berger, Martin Scheinman
and Bonnie Silver Weinstock in rotation.’’
Lynch testified further that he subsequently informed his
superior, Lanyi, that he had reached agreement with Katz’s
and had gotten an extension agreement signed. Lynch did not
recall when he so informed Lanyi of these facts. According
to Lynch, he had no discussions with Lanyi about whether
a memorandum of agreement had been signed. Lanyi was not
323KATZ’S DELI
8 Respondent at the hearing adduced evidence concerning the col-
lective-bargaining negotiations between the Second Avenue Deli and
the Union, in an attempt to somehow establish a connection between
the two sets of negotiations. Respondent made no reference in its
brief to this evidence, which I have assumed to be an abandonment
of such contentions. I have therefore not included any findings with
respect to those matters, which I deem to be irrelevant to any issues
before me.
called as a witness to corroborate Lynch with respect to the
above conversation.
Austin testified that Dell discussed with him the events of
March 30 on that evening. Austin states that Dell informed
him that Lynch had come into the restaurant and threatened
to picket unless Respondent signed an extension. Dell in-
formed Austin that the extension was supposed to last for 2
weeks. Dell did not inform Austin that any concessions were
made on March 30 or that any agreements were reached on
that day.
On April 2, Local 131 filed a petition with the Board in
Case 2–RC–21018. On April 4, Thomas Lee, on behalf of
Local 131, sent a telegram to Respondent asserting that
Local 131 has been designated by Respondent’s employees
to be their collective-bargaining representative, and requested
an opportunity to demonstrate its majority status.
Also on April 4, the Union received from Kirschner a
copy of a collective-bargaining agreement that Kirschner had
prepared, reflecting an agreement that had been reached be-
tween the Union and the Second Avenue Deli.8 According
to Lynch, he was expecting to receive a copy of the contract
agreed on with Katz’s from Kirschner at the same time.
Therefore, Lynch claims that he called Kirschner and asked
him about the Katz’s contract. Lynch asserts that Kirschner
replied that Lynch would have it in a few days.
Shortly thereafter, Local 100 became aware of Local 131’s
petition and, according to Lynch, was also informed that the
extension agreement was not sufficient to block Local 131’s
petition. A conference with respect to Local 131’s petition
was scheduled for April 10. Therefore, on April 9, Lynch
visited the restaurant along with several other union rep-
resentatives. At that time, Lynch and the other union rep-
resentatives obtained signatures from 19 employees on a pe-
tition stating that they had approved and ratified a contract
between Katz’s and Local 100 and that they were not inter-
ested in representation by any other labor organization.
According to Lynch, he asked the employees to read the
document and to sign it if they were in agreement. The em-
ployees involved were almost all Spanish speaking and could
not read English. There were Spanish-speaking union rep-
resentatives present who assisted Lynch in translating for the
employees.
Employee Genaro Adames testified that Lynch and the
union representatives told the employees that the Union was
going to try to get the employees a better contract with better
benefits. Bernado Marinez testified that he was told by the
lady from the Union in Spanish that the employees should
sign or else they would lose their benefits or rights, and that
the other Union (Local 131) was a ‘‘ghost union.’’ Gjokaj
testified that on the date that this petition was signed, he was
spoken to by two representatives from Local 100,
Lee ll and Rocky ll and they told him that Local
100 was going to be the representative at the shop, and if
the employees got rid of Local 100, they would lose their
pensions. Gjokaj also testified that similar statements were
made to employees by Local 100 representatives, in order to
persuade them to sign the petition. Additionally, Gjokaj as-
serts that Lynch came over to him at the counter and said
that he (Gjokaj) should use his head and watch his steps and
watch what he was doing.
David Kindler who was the General Counsel’s witness,
and an alleged discriminatee here, also signed this petition on
April 9, and furnished some testimony as to his discussions
with Lynch when he signed the document. According to Kin-
dler, Lynch asked him to sign the petition in support of
Local 100. Although, as noted, the petition states that a con-
tract was agreed on and ratified by employees, Kindler con-
cedes that he was not present nor was he ever told by Lynch
or other employees that the contract had been agreed on or
ratified by the employees. Kindler did, however, recall a dis-
cussion with Lynch on that date, concerning a contract with
Katz’s, during which Lynch told him that they were ‘‘fight-
ing for a raise,’’ and that they were ‘‘working on’’ a con-
tract.
The next day, April 10, the parties met at the Regional Of-
fice for a conference regarding the petition filed by Local
131. Present were Lynch, Kirschner, Dell, Local 100’s attor-
ney Christopher Berman, Local 131’s attorney Warren
Mangan, and Board Agent Polly Chill. Lynch testified that
he stated at the conference that there had been an agreement
reached between Local 100 and Katz’s, and that both Kirsch-
ner and Dell confirmed that fact. According to Lynch, they
say that an oral agreement was reached, but that they were
‘‘very specific’’ on all the terms and conditions of the con-
tract. Lynch at that point asserts that he presented the peti-
tion signed on April 9, which confirmed that agreement had
been reached to Mangan. Lynch testified further that he and
the Union had learned prior to April 10 that the extension
agreement that had been signed would not bar Local 131’s
petition, so he felt that if he presented Local 131 with a peti-
tion showing that agreement had been reached and that a ma-
jority of employees supported Local 100, that Local 131
would withdraw and walk away. Lynch testified further that
a discussion ensued concerning the possibility of Local 131
withdrawing its petition, and that Mangan after reviewing the
petition stated that his client would consider whether to with-
draw its petition.
Dell’s version of the conference differs in several signifi-
cant respects from Lynch’s account. According to Dell, when
Board Agent Chill asked if the parties had an agreement,
Kirschner replied, ‘‘yes.’’ At that point, Dell whispered to
Kirschner and asked what was he talking about. Kirschner
whispered back that he was referring to the extension agree-
ment. Dell further testified that either Lynch or Local 100’s
lawyer then showed the extension agreement to Chill. Chill
after reviewing this document stated that the extension agree-
ment was not a contract and did not bar another union from
from coming in. She then asked if the parties had anything
else in writing reflecting a contract. Nothing else was pre-
sented, and neither Lynch nor Local 100 stated that the par-
ties had reached an oral agreement on all terms of an agree-
ment. In fact, according to Dell, he told the Board agent in
response to her question that the parties had reached agree-
ment on some items, but not all, and that there was no con-
tract. Dell did recall that Lynch gave a copy of a petition to
Mangan, but his recollection was that Lynch stated that the
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
document proved that Local 100 represented a majority of
the workers. Dell did not recall, but did not deny that there
was some discussion about Local 131 withdrawing its peti-
tion at the conference.
After the conference ended, Lynch and Dell had a con-
versation outside the Regional Office. Once again, the ac-
counts of Lynch and Dell differ substantially. Lynch claims
that Dell told him at that time that he knew that there was
a deal with Local 100, and he didn’t want any problems.
Lynch added that he did not ask Dell whether they were
going to sign an agreement or whether Kirschner was prepar-
ing one, because Kirschner had told him previously that he
would have it prepared in a few days. Lynch also admits that
he made no further efforts to contact Kirschner to see if he
had prepared the contract as allegedly promised.
Dell, on the other hand, asserts that Lynch said to him,
‘‘what the fuck are you trying to pull’’? Dell then asked
what did Lynch mean, and Lynch did not explain, but threat-
ened to close down the store. At that point according to Dell,
he got nervous and left.
As noted above, Respondent had received a mailgram
from Local 131 demanding recognition. Thereafter, Austin
made arrangements for a card check of Local 131’s author-
ization cards with George Sabatella, a commissioner with
New York State Mediation Board, who was also on the panel
of arbitrators under the Local 100 contract. According to
both Dell and Austin, the date of April 11 was chosen for
the card check, because that was the day after the extension
agreement with Local 100 was to have expired.
On April 11, Sabatella examined Local 131’s authorization
cards, as well as payroll records and W–2 forms supplied by
Respondent. Sabatella issued a certification, dated April 11,
indicating that based on his examination of authorization
cards submitted by Local 131, he determined that 20 out of
21 signed cards were ‘‘valid authorization cards’’ and that
‘‘it is my opinion that the union does in fact represent a ma-
jority of employees.’’ Immediately thereafter, also on April
11, a stipulation was executed by Austin and Sam Sali, presi-
dent of Local 131. The stipulation reflects that based on the
card check conducted by Sabatella, ‘‘Respondent is satisfied
that Local 131 is the collective-bargaining representative of
Respondent’s unit employees, and that Respondent agrees to
recognize Local 131 as the collective bargaining representa-
tive without the certification of the Union’s status pursuant
to a representation election by the National Labor Relations
Board.’’ Austin testified that on April 11, Sali had informed
him that the representation petition filed by Local 131 was
in ‘‘the process of or had been withdrawn.’’ Sali did not fur-
nish any corroboration of Austin’s testimony with respect to
the withdrawal of the petition, and in fact Local 131 had not
even requested withdrawal of the petition by April 11. Dell
testified that he was aware that Austin signed a recognition
agreement with Local 131 on April 11, but claims that at the
time he was unaware of any rule that he couldn’t sign a rec-
ognition agreement where a petition was still pending. Dell
further testified that he believed that Kirschner, his attorney,
had told him that it was legal to sign a recognition agree-
ment, because the petition was going to be withdrawn. Dell
also asserts that his sister-in-law is an attorney, and she also
advised him that as long as the petition was going to be
withdrawn, and was in fact eventually withdrawn, the signing
of a recognition agreement would be legal.
Subsequently, negotiations were conducted between Local
131 and Respondent, resulting in an agreement being
reached, which was ratified by the employees on April 18 by
a vote of 20 to 1 with 3 employees not voting. On that same
date, April 18, Local 131 sent a letter to the Region, request-
ing withdrawal of the petition in Case 2–RC–21018, as well
as withdrawing any objections to the Region’s order dismiss-
ing petitions in Case 2–RC–21001. The Regional Director
approved the withdrawal of the petition in Case 2–RC–21018
by letter dated April 22.
There is no dispute that a collective-bargaining agreement
was executed by Respondent and Local 131 which by its
terms runs for 3 years, effective April 22. The record is not
clear as to precisely what date the agreement was signed.
The consolidated amended complaint alleges that Respondent
and Local 131 entered into and has maintained a collective-
bargaining agreement on April 18, and this allegation was
admitted by both Respondents in their answers. Sali, testified
that the contract was not signed until April 22, the same day
that it was effective. Although Sali’s affidavit states that the
contract was signed on April 18, Sali asserts that this was
a ‘‘mistake,’’ and that he meant to say that agreement was
reached and the contract was ratified on April 18, but Local
131 needed a few days to prepare the typed agreement,
which was not accomplished until April 22.
The contract contains a union-security clause and checkoff
clause, and provided for wage increases of either $6 or $12
per week for employees depending on the classification as of
April 15, 1991, and between $6 and $10 on April 15, 1992,
and April 15, 1993. The contract provides for payments into
the Local 131 welfare fund of $110, $120, and $130 per
month per employee, and for payments into an annuity fund
of $25 per month, per employee.
Respondent began to deduct dues from the salaries of em-
ployees at some point undisclosed by the record. With the
exception of employee David Kindler who testified that he
never signed an authorization for dues to be deducted from
his salary, and who had dues deducted from his check for
the pay date of May 9, 1991, the record does not reflect
whether or not any other employees executed checkoff au-
thorizations on behalf of Local 131.
B. The Alleged Removal of Local 100 Representatives
According to Lynch, subsequent to the April 10 con-
ference at the Region, he began hearing reports that Local
131 representatives were visiting Katz’s facility. In fact, Sali
had been permitted to speak to workers at the restaurant per-
taining to the negotiation of the agreement.
Therefore, Lynch claims that on April 18, he and two
other union representatives, Leroy Hodge and David Segarra,
visited the restaurant. Lynch testified that Dell appeared agi-
tated that he was there, and said that Lynch had no business
talking to the workers. Lynch replied that he had every busi-
ness talking to the workers and he intended to do so. At that
point, Dell went into his office and returned with a tape re-
corder. Dell again objected to Lynch speaking to the work-
ers. Lynch waited a half hour, and not seeing anyone from
Local 131, informed some employees to beep him if Local
131 representatives appeared at the restaurant. He and the
other representatives then left.
At around 10 a.m., Lynch received a call on his beeper
from an employee who informed him that a Local 131 rep-
325KATZ’S DELI
9 Austin did not further explain what he meant by ‘‘disrupting.’’
resentative was on the premises. Lynch immediately went to
the restaurant and observed Sali speaking to employees at a
table. Lynch approached the table, introduced himself, and
asked to join the conversation. Sali got up and walked away.
Lynch then began speaking to employees and told them that
his purpose was to have open debate if there was going to
be a discussion between the unions.
At that point, Dell came over and again instructed Lynch
that he had no business talking to the workers. Lynch pro-
tested and pointed out that Dell was allowing Sali, who had
gone over to speak to other employees, to talk to workers,
and asked why he wouldn’t allow Lynch to do so as well?
Dell ignored Lynch’s inquiry. Lynch went over to the area
where Sali was talking to workers and attempted to partici-
pate in the conversation. Dell intervened and angrily told
Lynch that he had no business being there and to get off the
premises. Lynch once again pointed out that Dell was allow-
ing Sali, a representative of another Union to speak to work-
ers, but not permitting Lynch to do so, even though Local
100 had an agreement including visitation privileges. Dell re-
sponded that if Lynch did not leave, he would call the police.
Lynch refused to leave and Dell as promised called the po-
lice. When the police came, Lynch explained to the officers
that there was another union official (Sali) who was allowed
to remain. The police replied that it was the Employer’s
store, and if he says Lynch had to leave, Lynch must leave.
The police escorted Lynch off the premises, while Sali was
permitted to remain and continue speaking to employees.
Lynch then waited for Segarra and Hodge whom he had pre-
viously summoned on their beepers. When they arrived,
Lynch instructed them to go back inside and participate in
any conversations between Sali and employees. After they
went in, the police were again called and escorted Segarra
and Hodge off the premises, while Sali remained inside talk-
ing to the workers.
Dell’s version of the incident is not surprisingly somewhat
different. Dell contends that the incident took place on April
9, the day before the NLRB conference, when Lynch was
obtaining signatures from employees. According to Dell,
Lynch came in with Segarra and Hodge, and Lynch was
yelling and pulling men off the counter and telling them
there was a meeting. Dell asserts further that Lynch was cre-
ating a disturbance in the restaurant, and when Dell com-
plained that the employees were working, Lynch replied that
he ‘‘was the representative of the Union and I could take
whoever I want, whenever I want off the counter. There is
nothing you can do about it.’’ At that point, Dell claims that
he called the police who escorted Lynch from the restaurant,
but that Segarra and Hodge were not asked to leave because
they weren’t causing any trouble. Dell furnished no testi-
mony as to whether or not Sali was on the premises on that
day or whether he was allowed to remain while Lynch was
removed.
Sali, although testifying about other matters, did not testify
about this incident. Hodge and Segarra, who are no longer
employed by Local 100, were not called as witnesses in this
proceeding.
Lynch also testified that the next day April 19, he was told
by the Board agent that Local 131 was withdrawing its peti-
tion, and he went to the restaurant to inform the workers of
this fact. As he was discussing a problem of a dental bill
with an employee, the father of one of the owners came over
and said, ‘‘Aren’t you the Union guy that we threw out of
here yesterday’’? Lynch replied yes, but he thought the prob-
lem was resolved, the other Union was finished, and ‘‘we
have a contract.’’ At that moment, Austin came out of his
office, and told Lynch that he had 30 seconds to get off the
premises or he was calling the police. Lynch responded that
he had a right to be there, and he thought that their problems
had been resolved. Austin called the police, and once again
Lynch was escorted off the premises.
Austin could not recall the date, but remembered one oc-
casion, where he asserts Lynch came into the restaurant in
the morning, and was ‘‘disrupting’’ the staff while they were
attempting to set up for the day. Austin9 asserts that he asked
Lynch to stop and allow the employees to set up. Lynch re-
plied, according to Austin, that he ‘‘could do whatever he
wants, whenever he wants.’’ Austin further claims that
Lynch invited Dell to call the police and have him thrown
out, and he did so.
Local 100 filed a charge on April 25, in Case 2–CA–
25065 alleging that Respondent violated Section 8(a)(1) of
the Act by having the police escort Lynch from the Respond-
ent’s premises. Between April 25 and May 1, Lynch testified
to a phone conversation with Kirschner. Lynch had instructed
Hodge and Segarra to visit the shop and post a copy of the
unfair labor practice charge on the bulletin board. Lynch
asked Kirschner for assurances that Segarra and Hodge
would not be thrown off the premises, as Lynch had been
on April 18 or 19. Kirschner replied that he knew nothing
about Lynch’s being thrown out, and had no idea why the
Employer had done so. According to Lynch, Kirschner added
that he could understand why Respondent would give an au-
dience to the other Union, but not to Lynch.
C. The Alleged Discharge of David Kindler
David Kindler was employed by Respondent as a
counterman for approximately 1 year, on the evening shift,
from 3 p.m. to closing. Kindler had been a member of Local
100 and its predecessor unions since 1971 while employed
at various other employers. At Katz’s, Kindler’s dues for
Local 100 were deducted from the first paycheck of every
month in the amount of $27.
On January 30, Kudler signed a membership card for
Local 131, which was given to him by Gjokaj. According to
Kindler, Gjokaj told him that by signing the card, it wouldn’t
obligate him to join Local 131, and was just for information
purposes only, in case he eventually decided to join and
Local 131 would then have his name, address, and social se-
curity number. Gjokaj attempted to give Kindler some other
papers for Local 131, but Kindler refused to accept them
from Gjokaj. Kindler did not work on March 30, because it
was the Passover Holiday. As noted above, Kindler signed
the petition for Lynch on April 9 to show support for Local
100.
Kindler’s paycheck for the first week of May showed a
deduction of $20 for union dues. Kindler asked Austin what
the $20 deduction was for, and Austin replied that the deduc-
tion was for Local 131. Kindler replied that he had not
joined Local 131 and asked for his $20 back. Kindler did not
recall Austin’s response at that time. Kindler continued to
work for the rest of that week, but he did not receive his
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 A few months before Kindler was out for 7 to 8 days for an
injury on the job. Austin told Kindler that time not to file for com-
pensation, and Respondent would pay him anyway.
11 The Union had filed a charge with the Region on May 28 in
Case 2–CA–25124 which alleged among other items that Respondent
discharged Kindler unlawfully on May 14.
schedule for the following week, which he customarily re-
ceived either on Saturday or Sunday.
On Sunday, May 12, Dell asked to speak to Kindler in
Dell’s office. According to Kindler, Dell told him that he had
to join Local 131, and that Local 100 doesn’t exist any more
in the store. Dell then asked Kindler to sign a piece of paper
stating that he quit. Kindler asked if he had been fired. Dell
said no, and asked again if Kindler quit. Kindler replied no
and asked if he was working that day. Dell replied yes, so
Kindler went to work that day. However, he still did not re-
ceive his schedule for the next week.
Monday, May 13, was Kindler’s regular day off, so on
Tuesday he went to Local 100 to speak to Lynch and Local
100’s attorney. They advised Kindler to report to work as
usual on that afternoon. Kindler reported to work and noticed
that there was no timecard for him. Kindler approached Dell
and said he was there to work. Dell allegedly replied that if
Kindler didn’t sign the paper for Local 131, he couldn’t
work for Respondent. Kindler answered that he was for
Local 100.
Kindler left but returned after 5 p.m. to speak to Austin.
Kindler asked Austin about his working, and where was his
pay envelope. Austin replied that Kindler had taken too
many sick days,10 so Respondent was going to deduct this
week’s check. Kindler informed Austin that he couldn’t do
that and advised Austin to check with his lawyer. Kindler
asked Austin for the $20 taken out of his prior check for
Local 131. Austin added that he likes Kindler and considered
him a good worker, but he was sorry to see Kindler go.
The next day Austin called Kindler and told him to come
down and get his money. On Sunday, May 19, Kindler went
to the restaurant as requested. Austin gave Kindler an enve-
lope with his pay. He also told Kindler that the $20 dues for
Local 131 was included in the money that he received. Kin-
dler asked Austin if he could work, and Austin replied no.
Subsequently, Austin called Kindler and arranged for him
to come to the restaurant on June 3. According to Kindler,
he met with both Dell and Austin in the office, and Dell
asked him to sign a paper stating that he had quit. Kindler
refused. Dell told Kindler that he was a troublemaker and he
had cost Dell a lot of money because he had to hire law-
yers.11 Kindler responded that if Respondent hadn’t fired
him, it wouldn’t have cost them anything, because he worked
there over a year without a problem, and that Respondent
was nice to him. At that point, Dell left the office and re-
turned accompanied by three countermen. Kindler stood up
and said if Respondent was going to have three witnesses,
he wanted to get his own witnesses. Dell grabbed Kindler’s
arm and Kindler told him to let go of his arm and not to
touch him.
Kindler walked outside and Dell followed him. Dell told
Kindler ‘‘off the record,’’ that ‘‘if I could, I would break
your face.’’ Kindler contends that he dropped his hands and
said, ‘‘Go ahead, be my guest, I’ll own you for the rest of
my life.’’ Kindler then walked away.
According to both Dell and Austin, they did ask Kindler
to sign a paper stating that he had quit. Austin asserts that
Kindler had said that he was quitting, because he didn’t want
to pay union dues to Local 131 and that he was a Local 100
employee. Both Austin and Dell contend that at that point,
Kindler jumped up and started yelling, ‘‘stop hitting me,’’
‘‘stop hitting me,’’ and walked out of the restaurant. Dell
adds that he followed Kindler outside and asked, ‘‘What is
this nonsense.’’ Dell denied that he threatened to break Kin-
dler’s face.
Respondent sent a letter later that day, dated June 3, to
Kindler. The letter indicates that Respondent was sorry about
the misunderstanding about Kindler’s resignation, and states
that it was hoping that he chose to return to work with
Katz’s. The letter also refers to a discussion that revolved
around Kindler’s return to work, and an assertion that Kin-
dler was willing to return the next week. The only testimony
offered concerning this statement was Dell’s testimony that
when Respondent offered Kindler his job back, Kindler
asked for some time off to spend time with a newly arrived
grandchild before he is able to start. Kindler furnished no
testimony concerning this alleged statement by him to Dell.
The letter also makes reference to Kindler’s ‘‘mouth and
temper,’’ and states that while Respondent respects his opin-
ions, it hopes he will express himself ‘‘within the bounds of
good taste and out of earshot of customers.’’ The letter con-
cludes by stating, ‘‘looking forward to seeing you next
week.’’
Kindler responded by letter dated June 7, after consulting
with Lynch. The letter insists that Kindler did not resign, but
was fired for not signing a dues authorization card for Local
131. It adds that both Austin and Dell told him on a number
of occasions that he had to sign for Local 131 or could not
work at Katz’s. Kindler asserted that at the June 3 meeting,
he had no intentions of ever signing for Local 131. Kindler
concluded by stating, ‘‘if you are willing to put me back to
work without further harassment, physical or otherwise, as to
my refusing to join Local 131, I would be glad to have my
job back.’’
Austin wrote Kindler a letter, dated June 11, stating, ‘‘fol-
lowing our cordial conversation of last week, I had antici-
pated your return to work, today as we had discussed.’’ No
testimony was furnished by Dell or Austin concerning the al-
leged ‘‘cordial telephone conversation,’’ wherein Kindler al-
legedly agreed to return to work on June 11. Austin’s letter
adds that since Kindler did not show up for work or call, ‘‘I
can only assume that you wish your resignation to stand.’’
This letter was followed up by another dated June 14, also
from Austin to Kindler. This letter refers to an alleged con-
versation between Kindler and Respondent wherein Respond-
ent allegedly made ‘‘an unconditional offer to return to work,
at your same position, same job title and same pay. Although
I assure you that there would be no retaliation or other con-
duct against you, you failed to appear for work on June 11
as you said you would.’’ Once again, however, no testimony
was offered by Respondent concerning this alleged ‘‘uncon-
ditional offer’’ to Kindler by Respondent. The June 14 letter
continues by reiterating that the ‘‘unconditional offer to re-
turn to work under the same terms and conditions of employ-
ment you previously enjoyed will remain open until after the
end of this month. If you fail to exercise that right, we will
assume you have resigned from Katz’s.’’
327KATZ’S DELI
12 Austin conceded that if Kindler had been employed after the
start of the Local 131 contract, dues would have been deducted from
his salary.
Kindler responded by letter dated June 17. He took issue
with Austin’s description of their last conversation as ‘‘cor-
dial.’’ Kindler’s letter repeated that he had not resigned, but
was fired because of his refusal to join Local 131 and his
support for Local 100. The letter continues, ‘‘yes, you did
offer me my job back but because of the verbal and physical
abuse shown by your partner, Alan Dell, I cannot see ever
returning to work at Katz’s while such a hostile and uncer-
tain environment exists.’’ The letter concludes by requesting
his back wages, as well as the $20 dues money that was ille-
gally deducted from his check.
Dell testified that he was aware that Kindler was in favor
of the ‘‘old union,’’ rather than the new Union. Dell asserts
further that around the end of May, at a private party, Kin-
dler although working was dancing with customers. Accord-
ing to Dell, when he reprimanded Kindler for dancing rather
than working, Kindler replied, ‘‘I am quitting anyway.’’ Kin-
dler recalled the party, and admitted dancing, and being criti-
cized by Dell for such actions. However, Kindler denies that
he told Dell at that or any other time that he was quitting.
Kindler adds that he had danced with customers on prior oc-
casions, in order to liven up the party, and that Austin had
given him permission to dance with customers at these prior
parties.
Dell testified further that he thereafter continued to put
Kindler on the schedule for ‘‘a little while,’’ and that at one
point he heard that Kindler would not work if Local 131 was
in the shop because he wanted Local 100. Therefore, accord-
ing to Dell, Respondent did not put Kindler on the schedule
for that week.
Austin asserts that he and Dell had heard stories from
other employees that Kindler was unhappy with the new
Union coming in. Austin made no reference to, nor did he
corroborate, Dell’s testimony that Kindler allegedly told Dell
personally that he was quitting.
Austin testified further that based solely on the alleged
stories from other employees that Kindler was unhappy with
the new Union, Respondent assumed that Kindler was quit-
ting, and therefore did not schedule Kindler ‘‘for the first
week following the contract signing with Local 131.’’ Ac-
cording to Austin, Kindler did not report to work or com-
plain to Respondent about why he wasn’t on the schedule.
Austin further testified that the following week, after not
hearing from Kindler, he and Dell ‘‘compared notes,’’ real-
ized that neither of them had spoken with Kindler about the
matter and sent him a letter. Later on in his testimony, Aus-
tin, after seeing that the first letter was not sent to Kindler
until June 3, recalled that he had some telephone conversa-
tions with Kindler about returning to work, but he was still
unclear as to the dates of these conversations, and still as-
serted that he believed that Kindler was not working at any
time after Local 131’s contract became effective. Austin de-
nied telling Kindler that he had to sign a card for Local 131
in order to keep his job, but he did recall discussions with
Kindler about dues for Local 131. Austin did recall Kindler
complaining that he would not work in a position where dues
were taken out for Local 131, but Austin did not recall if in
fact dues had been deducted form Kindler’s salary at the
time.12 In fact, Austin believed, although he was not certain,
that the conversation was after Respondent had taken him off
the schedule and was ‘‘a more theoretical conversation,’’ be-
cause ‘‘it is my recollection now that he wasn’t working
when 131 was in the store.’’
III. CREDIBILITY RESOLUTIONS AND ANALYSIS
A. The Alleged Refusal to Sign an Agreed-on Contract
The issue of whether or not Respondent has violated the
Act by refusing to execute an agreed-on contract with Local
100 is largely dependent on a credibility resolution between
Dell and Lynch, as to whether in fact the parties had reached
full agreement on all terms of a new collective-bargaining
agreement, as testified to by Lynch.
Bearing in mind particularly the fact that the burden of
proof rests with the General Counsel to adduce sufficiently
probative evidence to establish by a preponderance of the
evidence, that full agreement has been reached, I conclude
that the General Counsel has failed to meet his burden in this
regard.
Lynch’s testimony, uncorroborated by the testimony of any
other employees or by any probative documentary evidence,
and indeed contradicted by the testimony of other witnesses,
as well by the only pertinent document signed by all parties,
cannot be relied on to establish that agreement that all terms
of a contract has been reached.
Accordingly, for the reasons described below, I do not
credit the testimony of Lynch that a contract was agreed to
and credit except where otherwise indicated the versions of
the disputed conversations and events given by Dell or Aus-
tin, as opposed to Lynch, with regard to this issue. I note ini-
tially the lack of corroboration for Lynch’s testimony by any
bargaining unit employee or even any other official of Local
100. While it is true that a number of bargaining unit em-
ployees admitted to signing petitions on March 30 and April
9, which, on their face, support Lynch’s testimony, not a sin-
gle employee was presented by the General Counsel that sup-
ported Lynch’s version of the circumstances in which these
signatures were obtained. To the contrary, a number of em-
ployee witnesses testified directly contrary to Lynch on a
number of significant areas concerning these petitions. While
I agree with the General Counsel that these witnesses were
not fluent in English and may not have fully understood what
Lynch was saying, I find their essentially mutually corrobo-
rative testimony to be for the most part credible. I therefore
conclude that Lynch did not, as he insisted, provide the em-
ployees with all the details of the alleged agreement with Re-
spondent. I find, however, that he did tell the employees that
agreement with Respondent was reached, and that there
would be no raise, but gave no other details. I conclude that
he also told employees that if they did not agree and sign
the petitions, there would be a strike called. In agreement
with a compilation of the testimony of the employees, I fur-
ther find that Lynch told employees that a new contract with
Local 100 would give them better benefits, but if they chose
to go with Local 131 (which Lynch characterized as a
‘‘ghost union’’), they would or might lose benefits, including
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 It is of course true that there are certain vesting requirements
under ERISA, but it is not inconceivable that some employees, de-
pending on their length of service, might lose pension credits if they
were no longer represented by Local 100.
14 Indeed, the General Counsel or Local 100 could have called
Lynch’s superior, Darwin Lanyi, to corroborate that Lynch told him
that agreement had been reached with Katz’s.
a specific reference to pension benefits. In this regard, I do
not credit the testimony of one or two employees that Lynch
also mentioned that employees would lose their jobs unless
they signed. I find it unlikely that Lynch would make such
an assertion, while I do find it probable that he would refer
to a possible loss of pension or other benefits. Thus, should
the employees not sign the petition in support of Local 100,
and then transfer their support to Local 131, it is certainly
conceivable that employees could lose some benefits that
they had been receiving under Local 100’s contract, includ-
ing a possible loss of pension benefits or credits.13 Therefore,
I find it likely that Lynch would point this out to employees
in attempting to persuade them that it was in their best inter-
est to stick with Local 100 and reject Local 131. However,
I do not believe that Lynch would refer to a loss of jobs
should employees reject the contract and reject Local 100. In
my view, the employees, who so testified, recalled Lynch’s
assertion that there would be a strike if the employees did
not sign, and believed in their own mind that a strike could
result in a possible loss of jobs.
While the credited testimony of the employees that Lynch
did not provide any details of the alleged agreement does not
necessarily refute Lynch’s testimony that an agreement had,
in fact, been reached, such credited testimony does reflect
poorly on the veracity of Lynch’s version of events, since
Lynch testified unequivocally that he did furnish such details.
Moreover, I also find it likely that had full agreement been
reached, as testified to by Lynch, that he would have sup-
plied such details to the employees, since according to Lynch
the alleged agreement provided for substantial increases in
payments to Local 100’s welfare fund, as well as wage in-
creases in the second and third year of the contract.
Not only did, as noted, no employee witness testify in sup-
port of Lynch’s account of events, and witnesses called by
Local 131 significantly contracted Lynch in important areas,
but the only employee witness called by the General Counsel
provided not only no supporting testimony, but also testi-
mony extremely damaging to Lynch’s assertion that full
agreement had been reached. Thus, David Kindler, an alleged
discriminatee, and an admitted outspoken supporter of Local
100, did not sign the March 30 petition (because he was not
present on that day), but did sign the April 9 petition given
him by Lynch. While the April 9 petition provides that the
employees ratified an agreement with Respondent, Kindler
admits having no knowledge of such an agreement, and testi-
fied credibly that when he signed the petition, Lynch asked
him to sign the petition in support of Local 100. More sig-
nificantly, Kindler did recall that Lynch did discuss a pos-
sible contract with him on that day, and informed Kindler
that Local 100 was ‘‘fighting for a raise,’’ and that they were
‘‘working’’ on a contract. These comments by Lynch to its
chief supporter are certainly not reflective of having reached
an agreement with Respondent, but are supportive of Dell’s
testimony that further negotiations would be necessary before
an agreement would be reached.
The General Counsel relies on other testimony from Kin-
dler, to the effect that prior to Passover, Austin and Dell al-
legedly informed him that a contract was ‘‘initialed,’’ and
that there would be a contract signed after Dell comes back
from vacation. I cannot rely on this vague and unclear testi-
mony, particularly since Kindler was admittedly not present
on March 30, the day before Passover, when agreement was
allegedly reached. Thus, whatever Dell or Austin may have
said to Kindler prior to March 30 cannot be construed as
supportive of Lynch’s testimony. If anything, it shows only
that Dell and Austin were hopeful that an agreement could
be reached after Dell returned from vacation.
The General Counsel also relies on the fact that Kirschner
was not called as a witness by Respondent, and that therefore
Lynch’s testimony concerning his alleged conversations with
Kirschner are not denied. However, I note that Kirschner is
no longer Respondent’s attorney, apparently having been ter-
minated as Respondent’s attorney, shortly after the events in
question. In such circumstances, it is improper to draw an
adverse inference against Respondent for the failure to call
Kirschner as a witness. Lancaster Fairfield Community Hos-
pital, 303 NLRB 238 (1991). Inasmuch as Dell and Austin
were essentially consistent in their denials and refutations of
Lynch’s testimony, and the General Counsel was unable to
produce a single corroborating witness to Lynch’s version of
events,14 I place little significance on Respondent’s failure to
call Kirschner as a witness.
I do place much significance, however, on the only docu-
ment signed by all the parties, the extension agreement exe-
cuted on March 30, although it was dated March 26. This
agreement which extends the existing contract for a period
of 2 weeks does not make any reference to an agreement
being reached by the parties, nor to the fact that Respondent
was going to prepare a copy of the contract allegedly agreed
to, as Lynch testified was the intent of the document. I find
Lynch’s explanation for the failure of this document to re-
flect that an agreement had been reached to be unconvincing.
Lynch asserts that he was a relatively new business agent,
and that he was unfamiliar with the standard form extension
agreement, which was suggested to him Lanyi, his superior
at the Union. According to Lynch, Lanyi told him that the
document was to be signed only if an agreement was
reached, in order to give the parties time to prepare and exe-
cute a formal agreement. Thus, Lynch’s testimony that his
inexperience as a business agent was responsible for his not
having obtained a written confirmation of an agreement
being reached is clearly undermined. The extension agree-
ment given to Lynch by his experienced superior, Lanyi,
clearly contemplates a 2-week extension of the contract,
while the parties continue to bargain on terms of a new
agreement, rather than an extension only until Respondent
prepares a new agreed-on contract. It is noteworthy in this
connection that Lanyi was not called as a witness by the
General Counsel or Local 100 to corroborate Lynch’s testi-
mony concerning the preparation of the extension agreement
and Local 100’s alleged intention in submitting the document
to Respondent for its signature.
Therefore, I conclude that Dell’s testimony concerning the
circumstances and intention of the parties in signing the ex-
tension agreement is more persuasive than Lynch’s version.
329KATZ’S DELI
15 Except as noted above, Lynch did testify at one point that the
parties had agreed to add the name of Ralph Berger.
I note additionally, that Respondent waited until April 11 to
conduct the card count with Local 131. This fact supports
Dell’s testimony that the parties contemplated that the agree-
ment would expire on April 10, since it would have been
easy for Respondent to schedule the card count for several
days later, if the extension agreement was still in force, as
testified to by Lynch. Moreover, since Local 100 was respon-
sible for and in fact did prepare the extension agreement, any
ambiguity or uncertainty in the interpretation of the docu-
ment should be construed as adverse to the Union.
The General Counsel also places significant reliance on
the document allegedly executed by Lynch on the evening of
March 30, which reflected that an agreement had been
reached, and that the ‘‘2 week extension was signed for the
purpose of employer to execute the new agreement.’’ How-
ever, I cannot place significant weight on this self-serving
document, which was not shown to nor signed by any rep-
resentatives of Respondent and was not prepared contem-
poraneously with the events it purports to describe. It is also
pertinent in this regard that neither the General Counsel nor
Local 100 introduced any internal memos from Local 100,
which could have supported Lynch’s testimony or his own
self-serving document, that agreement with Katz was
reached.
Although as noted, I have for the most part credited the
mutually corroborative testimony of Dell and Austin that no
final agreement was reached between the parties, I do find
Lynch’s testimony to be more credible in certain respects,
more particularly as to what had been agreed on at the close
of the March 25 bargaining session. Thus, Dell testified that
several proposals made by Katz’s, such as open shop, elimi-
nation of the hiring clause, and requirement for employees
to contribute to welfare fund increases, had not been with-
drawn by that time, as Lynch had so testified. I credit Lynch
that these proposals had been withdrawn, since Lynch’s con-
temporaneous bargaining notes reflect that these items were
withdrawn by Katz’s on March 25. However, I credit Dell’s
testimony that Respondent’s proposal for advance notice to
management by a business had not been withdrawn, as
Lynch so testified, particularly since Lynch’s bargaining
notes state with respect to that clause, ‘‘the Union rejects ad-
vance notice to management proposal,’’ without an indication
of Respondent’s withdrawal of this proposal as his notes had
indicated with respect to the other items referred to above.
Dell also testified that no agreement was reached on a
management-rights clause proposal made by Respondent. I
find Lynch’s testimony concerning this issue to be more be-
lievable, however, and conclude that agreement was reached
on the Union’s version of the clause proposed by Respond-
ent, which is corroborated by Lanyi’s bargaining notes.
Finally, there was also disagreement as to whether there
was agreement on revisions in the existing arbitration clause,
concerning the selection of arbitrators. Dell contends that no
final agreement was reached on this proposal, although he
concedes that Lynch indicated an agreement on this item was
likely, but he had ‘‘to get back to the people.’’ Lynch insists
that a full agreement was reached on this proposal, but his
testimony on this clause was vague and uncertain. He as-
serted that the parties agreed to add some names, delete other
names, and add the AAA. Lynch’s testimony recalled only
one additional name (Ralph Berger) and one deletion (Robert
Light), and provided no further indication of who the other
names agreed to or deleted were or when such agreement
was reached. Moreover, Lynch’s bargaining notes do not re-
flect an agreement on this issue and indicates a union coun-
terproposal of AAA, NYS Mediation Board, Ralph Berger,
or Elliot Schriffman in rotation. In fact, the only specific in-
dication of the details of an agreement on this proposal is
found in the document that Lynch alleges that he prepared
on the evening of March 30. In that document, an agreement
on the arbitration is specified, ‘‘change arbitration clause to
read . . . before AAA or Ralph Berger, Martin Scheinman
and Bonnie Silber Weinstock in rotation.’’ It is noteworthy
that Lynch gave no testimony as to when the parties reached
final agreement as to this clause, or as to the specific names
included in his March 30 document.15 In these cir-
cumstances, I cannot conclude that the General Counsel has
established that an agreement was reached on all the details
of the arbitration clause and credit Dell that no such agree-
ment was reached.
Accordingly, based on the foregoing analysis and credibil-
ity resolutions, I am unable to conclude that the General
Counsel has met its burden of establishing that Respondent
and Local 100 had reached full agreement on all terms of a
collective-bargaining agreement. Therefore, I shall rec-
ommend dismissal of this paragraph in the complaint.
B. The Alleged 8(a)(2) and 8(b)(1)(A) and (2)
Violations
The complaint alleges and the General Counsel contends
that Respondent Katz violated Section 8(a)(1) and (2) of the
Act, and Respondent Local 131 Section 8(b)(1)(A) and (2)
of the Act, by entering into a recognition agreement on April
11 and a collective-bargaining agreement on April 18.
The General Counsel advances several different theories in
support of its contention that these actions of Respondents
were unlawful. Its initial contention is that the recognition
and signing of a contract were unlawful because Local 100
as of March 30 enjoyed an irrebutable presumption of major-
ity status, by virtue of having reached full agreement with
Respondent on all terms on new contract. This theory is of
course without merit, since I have found above that no such
agreement was reached between the parties. Similarly, the
General Counsel’s contention that the actions of Respondents
were unlawful because they occurred during the term of the
extension agreement signed by the parties must meet a simi-
lar fate, since the recognition agreement was signed on April
11, 1 day after I have concluded that the extension agree-
ment expired.
The General Counsel also submits, however, that the rec-
ognition and contract were unlawful based on two other
theories, which I conclude have been substantiated by the
evidence in this proceeding. Where an employee signs an au-
thorization card for two unions, the card of neither union will
be regarded as a valid designation which can be counted to-
ward a majority, unless the record is sufficiently probative
‘‘clearly to dissipate the ambivalence as to intent that is in-
herent in dual card situations, and to leave no doubt that at
the time material to the determination of majority status, the
dual card signer intended only one of his dual cards and
which of them to evidence his designation of a bargaining
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Eighteen of the employees who signed cards for Local 131 also
signed petitions on behalf of Local 100.
17 It is noteworthy in this connection that the Local 131 cards were
signed in late January, some 2-1/2 months before the petitions were
executed by the employees on behalf of Local 100.
18 The contract contained a union-security clause.
agent.’’ Crest Container Corp., 223 NLRB 739, 741 (1976).
See also Human Development Assn., 293 NLRB 1228
(1989), enfd. 937 F.2d 657 (D.C. Cir. 1991); Windsor Place
Corp., 276 NLRB 445 (1985).
The General Counsel argues and I agree that the actions
of the employees16 of Respondent of signing the petitions on
March 30 and April 9, in support of Local 100, are akin to
signing authorization cards on behalf of Local 100 and cre-
ates a dual-card situation, which under the above precedent
precludes reliance on the Local 131 cards to grant recogni-
tion.
Respondent argues, however, that the petitions signed by
the employees on behalf of Local 100 were ‘‘signed through
coercion and deceit and are a nullity, as a matter of Law.’’
I do not agree. In this connection, I have found that Lynch
did inform the employees when they signed the petitions that
if they did not sign and/or if they supported Local 131 (the
alleged ‘‘ghost union’’), there would be a strike called, and
they would or could lose benefits, including a specific ref-
erence to pension benefits. However, I do not view these
statements of Lynch to constitute coercion or deceit suffi-
cient to characterize the employees’ actions in signing the
petitions as a nullity. Indeed, if the employees had not signed
the petition and ratified the agreement, Lynch was authorized
to call a strike, and I find no improper conduct on Lynch’s
part in bringing this possibility to the attention of the em-
ployees. As for the alleged threats of loss of benefits, includ-
ing pensions, I note that it is certainly conceivable that
should employees reject Local 100, and shift their allegiance
to Local 131, that their benefits, including pensions would be
reduced or even lost. Indeed, the contract that Respondent
eventually executed with Local 131 provided for substan-
tially smaller payments into Local 131’s welfare fund than
would have been required under the Local 100 contract, and
provided for no pension contributions whatsoever, unlike the
Local 100 contract.
It is of course true that under ERISA, there may be some
vesting requirements that would enable some employees to
retain some pension benefits for prior service under Local
100’s pension plan. It is also true that Lynch did not point
this factor out and might have given the wrong impression
to some employees that they would lose all prior credits
should they switch unions. However, I do not believe that the
failure on Lynch’s part to disclose this information to the
employees is a sufficient misrepresentation to establish that
the signing of the petitions were a nullity. I note again that
the basic thrust of Lynch’s statements, that employees could
or would lose benefits by changing unions, is not necessarily
untrue, and is in fact likely in the instant situation. These are
certainly facts that employees are entitled to know, and
might very well have been a factor in the decision of the em-
ployees to sign the petitions for Local 100, which includes
a statement on the April 9 petition that they were not inter-
ested in representation by any other labor organization other
than Local 100.
Accordingly, I conclude that in view of the signing of the
subsequent petitions on behalf of Local 100, the record does
not clearly indicate that the employees intended only that
their Local 131 cards evidenced their designation of a bar-
gaining agent.17 In these circumstances, most of the Local
131 cards cannot be counted toward majority support for that
labor organization. Crest, supra; Human Development, supra;
ans Windsor Place, supra.
Therefore, I conclude that Local 131 was not the majority
representative of Respondent’s employees at the time of the
recognition or the execution of the contract, and that Re-
spondent Katz violated Section 8(a)(1), (2), and (3)18 of the
Act and Respondent Local 131 violated Section 8(b)(1)(A)
and (2) of the Act by such conduct.
The final theory advanced by the General Counsel, attack-
ing the recognition and subsequent execution of a contract by
Respondents, relies on the fact that these events took place
when Local 131’s representation petition was still on file.
Therefore, the General Counsel contends and I agree that Re-
spondents were not free to agree to recognition or to sign a
collective-bargaining agreement, in the face of a continuing
claim by Local 100 to represent the employees and the pend-
ency of a representation petition that would have resolved
this question concerning representation. Louisiana Dock Co.,
297 NLRB 439, 440 (1989); S.M.S. Automotive Products,
282 NLRB 36 (1986); Signal Transformer Co., 265 NLRB
272, 274 (1982). See also Bruckner Nursing Home, 262
NLRB 955 (1982).
I note that this theory for establishing a violation is appli-
cable, even if Respondent Local 131 represented a majority
of employees (which, as noted I have found above that it did
not) or, if Respondent Katz’s had a good-faith doubt of
Local 100’s majority status, which would justify its decision
to withdraw recognition from Local 100 (which as will be
discussed below, I also conclude was not the case). Louisi-
ana Dock, supra at 440; Signal Transformer, supra at 274.
Respondents argue that this theory should not be applied
here, since the parties were aware at the time of the recogni-
tion that the petition was going to be withdrawn by Local
131 and it was in fact withdrawn a few days later. Therefore,
they assert that this would be a hypertechnical and unfair ex-
tension of Bruckner, supra, and should not be countenanced.
I disagree.
Bruckner, supra, was issued modifying the Board’s prior
doctrine of Midwest Piping & Supply Co., 63 NLRB 1060
(1945), in order to avoid the difficult problem of identifying
a ‘‘colorable claim’’ and defining when a ‘‘real’’ question
concerning representation existed. Thus, the Board recog-
nized that these difficulties resulted in an inability to provide
the parties with clear standards that would enable them to
discern the fine line between a colorable claim and a naked
one. Bruckner, supra at 956. Thus, the Board set forth a
clearly defined rule of conduct, which prohibits an employer
from recognizing any competing labor organization ‘‘for the
limited period during which a representation petition is in
process even though one or more of the Unions may present
a valid-card majority.’’ Id. at 958. Such a rule is not merely
‘‘technical,’’ but carefully considered balancing of various
factors, which in my view is not affected by the fact that the
parties may have contemplated withdrawal of the petition at
the time of the recognition, or the fact that the petition was
331KATZ’S DELI
19 Although not determinative of any of my conclusions here, I
find in agreement with the General Counsel, particularly in view of
the admissions in Respondent’s answers, that the collective-bargain-
ing agreement was signed on April 18.
eventually withdrawn. Indeed, the essence of the rationale is
the preference for a Board-conducted election in the face of
competing claims. Clearly, Local 100’s claim for recognition,
as an incumbent union no less, was still viable at the time
of the recognition, as well as the signing of the contract.19
Furthermore, I note that the Regional Director did not ap-
prove the withdrawal request until April 22, well after the
date of recognition, and I agree with the General Counsel
that it is questionable whether the Regional Director would
have approved the withdrawal request, if all the facts were
known at the time. It is noteworthy in this connection that
the possible withdrawal of the petition was discussed at the
NLRB conference on April 10, on the basis that Local 131
would disclaim any interest in representing employees of Re-
spondent Katz in view of the petition signed by employees
on behalf of Local 100. Yet notwithstanding the above, and
Local 100’s known interest in representing the employees,
Local 131 and Katz signed a recognition agreement the very
next day, April 11, without notifying Local 100 or the Board
of their actions. This conduct by Respondent can hardly be
construed as acting in good faith and makes their reference
to an alleged ‘‘technical’’ violation to be disingenuous at
best.
Respondent Katz also argues that ‘‘Local 100’s egregious
unfair labor practices directed against the employees mandate
that it lose any advantage of incumbency.’’ Respondent Katz
in this regard asserts that Local 100 violated its duty of fair
representation toward the employees, Vaca v. Sipes, 386 U.S.
171 (1967), by virtue of Lynch’s ‘‘misrepresentations and
threatening statements’’ to employees, which would mandate
revocation of an incumbent Union’s certification. Abilene
Area Sheet Metal Contractors Assn., 218 NLRB 1652
(1978); Community Service Publishing, 216 NLRB 997, 1000
(1975); Teamsters Local 671 (Airborne Freight), 199 NLRB
994 (1972).
However, I have already discussed above my view of
Lynch’s statements to employees in connection with the ef-
fect of his remarks on the validity of the petitions signed on
behalf of Local 100. As I detailed there, Lynch’s comments
were far from ‘‘egregious unfair labor practices,’’ but essen-
tially arguments to Respondent’s employees, not without
some basis, as to why they should continue to support Local
100 rather than switch to another labor organization. While
as noted Lynch may not have been entirely candid with em-
ployees as to the possibility of their losing prior pension
credits, the thrust of his argument, that the change from one
labor organization to another could cause a loss of benefits
to employees, was essentially accurate.
Accordingly, I do not find that Lynch’s conduct amounted
to any unfair labor practices, much less ‘‘egregious’’ unfair
labor practices as argued by Respondent, nor does it amount
to a violation of Local 100’s duty of fair representation, nor
conduct which would warrant a revocation of Local 100’s
certification.
Therefore, I conclude that whether or not Respondent
Local 131 represented a majority of Respondent Katz’s em-
ployees Respondents violated Section 8(a)(1), (2), and (3)
and Section 8(b)(1)(A) and (2) of the Act by executing a rec-
ognition agreement and a contract.
The complaint also alleges that in May, Respondent Katz
assisted and supported Local 131 by deducting money from
employees’ wages and remitting such money to Local 131,
notwithstanding the absence of employee authorizations for
the deductions and remittance of dues, and that Local 131 re-
ceived such assistance and support in violation of Section
8(a)(1) and (2) and Section 8(b)(1)(A) of the Act, respec-
tively.
The evidence adduced by the General Counsel in this re-
gard consisted of the testimony of employee David Kindler
that dues were deducted from his salary for Local 131, not-
withstanding the fact that he had not signed any document
authorizing such a deduction. Additionally, the General
Counsel argues that Respondent Katz by its agent, Austin,
admitted that it was deducting dues after the effective date
of the contract from employees’ paychecks for Local 131,
and that ‘‘Respondents failed to introduce into evidence any
documents signed by employees authorizing the employer to
deduct and remit union dues to Respondent Local 131.’’
However, the General Counsel has misperceived the burden
of proof in this instance. Respondents need not introduce any
evidence that they obtained checkoff authorizations from em-
ployees. It is the General Counsel’s burden to establish by
a preponderance of the evidence that the employees did not
execute such authorizations.
The General Counsel has met that burden with respect to
employee Kindler, and I find that Respondent Katz violated
Section 8(a)(1) and (2) of the Act by deducting dues from
his salary without authorization, and Respondent Local 131
violated Section 8(b)(1)(A) of the Act by accepting such pay-
ments from Respondent Katz. However, I cannot conclude
that because no such authorization was obtained from Kin-
dler, Respondents acted similarly with respect to any other
employees. Therefore, I shall not find, as contended by the
General Counsel that Respondents deducted or accepted dues
from the salaries of any other employee, without the em-
ployee having signed a checkoff authorization.
C. The Withdrawal of Recognition
While I have found above that Respondent Katz violated
Section 8(a)(1), (2), and (3) of the Act by recognizing and
signing a collective-bargaining agreement with Local 131, it
does not necessarily follow that the contemporaneous with-
drawal of recognition from Local 100 is violative of the Act.
Thus, even where, as here Respondent may not lawfully rec-
ognize Local 131, it could lawfully withdraw recognition
from Local 100, if Respondent could demonstrate that Local
100 lost its majority status or that Respondent had a good-
faith and reasonably grounded doubt of Local 100’s majority
status. This doubt must be based on objective considerations
and raised in a context free of any employer unfair labor
practices aimed at causing employee disaffection with Local
100. Louisiana Dock, supra at 440–441; Signal Transformer,
supra. See also RCA Del Caribe, Inc., 262 NLRB 963, 965
(1982).
I conclude, however, that Respondent Katz has not dem-
onstrated either that at the time of the withdrawal of recogni-
tion from Local 100 (April 11, when it recognized Local
131), that Local 100 lost its majority status or that Respond-
ent had a good-faith doubt of Local 100’s majority status.
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 I note that Dell did not recall but did not deny that there was
some discussion about Local 131 withdrawing its petition at the con-
ference.
21 While the complaint does not contain a specific allegation of a
withdrawal of recognition, such action was part and parcel of the il-
legal recognition of Local 131, which was alleged. The matter was
fully litigated, and indeed Respondents both made reference in their
briefs to Katz’s right to withdraw recognition from Local 100 based
on Local 100’s alleged loss of majority status, by virtue of the card
check for Local 131.
As noted above, I have concluded that Local 131’s cards,
signed in January, could not be used to demonstrate its ma-
jority status in April, in view of the subsequently signed peti-
tions by Respondent Katz’s employees in support of Local
100. It therefore follows that Local 100 did not lose its ma-
jority status.
With respect to the question of good-faith doubt of Local
100’s majority status, while this is a lesser standard of proof
than actual loss of majority, I nonetheless do not believe that
Respondent has met its burden of proof in this area, as well.
I again emphasize the petitions signed by its employees on
March 30 and April 9 in support of Local 100. It is signifi-
cant that Respondent was clearly aware of at least the April
9 petition, as it was presented by Lynch to Mangan at the
NLRB conference, in Dell’s presence, and Dell conceded
that Lynch stated that the document proved that Local 100
represented a majority of the workers. In this connection, al-
though I credit Dell’s version of the NLRB conference for
the most part, I do credit Lynch that the parties discussed
Local 131 withdrawing its petition and ‘‘walking away,’’ in
view of this petition.20
Therefore, I conclude that in view of Respondent’s knowl-
edge of Local 100’s petition, it did not have a good-faith
doubt of Local 100’s majority status. It is significant in this
regard that Local 131’s cards were signed in January, and
Local 100’s petition was executed on April 9, just 2 days be-
fore the recognition of Local 131 and withdrawal of recogni-
tion from Local 100. Additionally, I do not believe that Re-
spondent Katz acted in good faith in these circumstances. In-
deed if Respondent truly had a good-faith doubt of Local
100’s majority status, as a result of the card check, the prop-
er and appropriate procedure for Respondent to have fol-
lowed was to simply withdraw recognition from Local 100,
and let the Board’s election procedures determine which
union, if any, the employees desired to represent them. How-
ever, it did not adopt this course, but on the contrary misled
both Local 100 and the NLRB by failing to disclose at the
April 10 conference that a meeting was already scheduled for
the next day to conduct a card count for Local 131. It is sig-
nificant that at the same time the parties were discussing
whether Local 131 would withdraw its petition and ‘‘walk
away,’’ in view of the petition signed on April 9 by employ-
ees supporting Local 100 and rejecting representation by any
other organization.
Such conduct can hardly be characterized as acting ‘‘in
good faith,’’ but rather demonstrates that Respondent Katz
was simply anxious to rid itself of the expensive pension and
welfare obligations which it had under the Local 100 con-
tract, and was not interested in having its employees choose
which labor organization they desired as their collective-bar-
gaining representative.
I recognize that in both Signal Transformer and Louisiana
Dock, supra, a good-faith doubt was found to exist, notwith-
standing the fact that the employers there allegedly recog-
nized another labor organization. However, in both of those
cases, the recognition of the outside union was unlawful,
solely because of the existence of outstanding NLRB peti-
tions, and there was no evidence there to doubt the majority
status of the outside union and the loss of majority by the
incumbent. Indeed, unlike the instant case, the demonstration
of majority status by the outside union consisted of picket-
ing, which compelled the employers to recognize the respec-
tive unions in order to stop the picketing. There was no evi-
dence there, as here, that the incumbent union had any sup-
port amongst the employees. Moreover, there was no evi-
dence there of deceitful conduct, as in the instant case, where
Respondent misled Local 100 and the Board by failing to
disclose its intentions to conduct a card count, in the midst
of a representation proceeding, where Local 100 had asserted
a continuing interest in representing employees, supported by
a recently signed petition.
Accordingly, based on the foregoing, I conclude that Re-
spondent Katz has violated Section 8(a)(1) and (5) of the Act
by withdrawing recognition from Local 100 on and after
April 11.21
D. The Alleged Unlawful Eviction of Lynch
In this instance, I find the testimony of Lynch to be much
more credible than that of Dell or Austin, and credit Lynch’s
versions of events on April 18 and 19, as detailed above,
concerning Lynch’s eviction from the restaurant.
I found Lynch to be forthright, detailed, and precise as to
his testimony concerning these days, while Dell and Austin
were vague, uncertain, and unconvincing in their attempts to
recount the incidents. Indeed, Dell initially placed the first
incident as having occurred on April 9, and then was not
sure when it happened. Neither Dell nor Austin furnished
sufficient particularity to their assertions that Lynch was
being ‘‘disruptive,’’ when Respondent admittedly asked him
to leave. I also note that Sali, who was an official of Local
131, and clearly identified with Respondent Katz’s interests
in this proceeding, testified on other matters, but did not cor-
roborate Dell as to the events of April 18. Indeed, it is sig-
nificant that Dell did not even testify as to whether Sali was
present at the restaurant speaking to employees when Dell
demanded that Lynch leave.
I note further that April 18 was the day that Sali was at
the restaurant to speak to employees about ratifying the con-
tract between Local 131 and Katz, and that the agreement
was signed on that day. It is therefore understandable why
Respondent Katz would not want Lynch or any other rep-
resentative from Local 100 being present on that day. Thus,
in my view, the mere presence of Local 100 representatives
was deemed ‘‘disruptive’’ by Respondent.
I conclude, therefore, that as testified to by Lynch, on
April 18, Dell ordered him to leave when he tried to speak
to employees and to Sali, and that when Lynch refused to
leave, Dell called the police to remove him, as well as other
Union Representatives Hodge and Segarra.
Similarly, on April 19, Austin also ordered Lynch to leave,
and called the police and had Lynch evicted once again.
333KATZ’S DELI
22 In this connection, Respondent admitted knowledge of Kindler’s
support for Local 100, as well as its unlawful recognition of Local
131, makes it quite likely that Respondent wished to rid itself of one
of the remaining supporters of the former incumbent union, Local
100.
The expired collective-bargaining agreement provided for
access to the premises by union business agents during work-
ing hours. Such a contractual right survives the expiration of
the agreement. T.L.C. St. Petersburg, 307 NLRB 605, 610
(1992); Fabric Warehouse, 294 NLRB 189, 192 (1989).
Therefore, Respondent has violated Section 8(a)(1) and (5) of
the Act by evicting Lynch from the premises and calling the
police to have him removed.
Moreover, even apart from Local 100’s contractual right of
access, which survived the contract, Respondent Katz’s may
not deny access to its premises and employees to Local 100,
while at the same time permitting such access to Local 131.
Such conduct is violative of Section 8(a)(1) and I so find.
Kosher Plaza Supermarket, 313 NLRB 74 (1993), and cases
cited there.
E. The Alleged Termination of David Kindler
With respect to the disputed versions of events, as between
Kindler and Respondent’s witnesses, Austin and Dell, I cred-
it Kindler entirely. I found his testimony more detailed, pre-
cise, logical, and believable, as well as consistent with docu-
mentary evidence, such as his paycheck. On the other hand,
the testimony of both Dell and Austin with regard to Kin-
dler’s discharge was vague, disjointed, unpersuasive, and
often contradictory of each other. Thus, for example, Dell as-
serted that Kindler personally told him at a private party the
end of May, after allegedly being criticized by Dell for danc-
ing with customers, that he (Kindler) was ‘‘quitting any-
way.’’ Significantly, Austin made no mention of this alleged
statement made to Dell by Kindler.
Moreover, both Dell and Austin were thoroughly confused
about the dates that Respondent did not place Kindler on the
schedule. Finally, I find the testimony of both Dell and Aus-
tin that Respondent decided not to schedule Kindler, because
they had heard from other employees that Kindler would not
work or was unhappy with the new Union, and was therefore
‘‘quitting,’’ to be unconvincing and not credible.
Accordingly for the above reasons, I credit Kindler’s testi-
mony and conclude that as he testified, Kindler complained
to Respondent about the fact that dues had been deducted
from his salary for Local 131 in early May. Moreover, on
Sunday, May 12, Dell told Kindler that he had to sign a
paper for Local 131 and asked him to sign a paper saying
that he quit. Kindler refused to sign any such paper, and this
was his last day of work for Respondent. He was not sched-
uled for work for the next week, and when he reported for
work on Tuesday, May 14, his next normal day of work, his
timecard was missing, and Dell told him that if Kindler did
not sign the paper for Local 131, he couldn’t work for Re-
spondent. This comment by Dell is an unlawful threat to dis-
charge Kindler in violation of Section 8(a)(1) and (2) of the
Act, and I so find.
Kindler replied to Dell that he was for Local 100, on that
same day and later on that evening, spoke to Austin. After
discussing Kindler’s paycheck, Austin told Kindler that he
likes Kindler and considered him a good worker, but was
sorry to see him go.
Based on the above circumstances, it is clear and I find
that Respondent discharged Kindler on May 14, because of
his refusal to join Local 131, as well as his support for Local
100,22 in violation of Section 8(a)(1), (2), and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent Katz is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent 131 and Local 100 are labor organizations
within the meaning Section 2(5) of the Act.
3. At all times material Local 100 has been and continues
to be the exclusive collective-bargaining representative for
Respondent Katz’s employees in an appropriate unit as fol-
lows:
All full-time and regular part-time waiters, waitresses,
countermen persons, buspersons, chefs, kitchen person-
nel and porters employed by Respondent Katz at its
Houston Street facility.
4. Respondent Katz has violated Section 8(a)(1), (2), and
(3) of the Act by recognizing Local 131 and signing a collec-
tive-bargaining agreement with Local 131, containing a
union-security clause.
5. Respondent Katz has violated Section 8(a)(1) and (2) of
the Act by deducting dues for Local 131 from the salary of
employee David Kindler, without receiving a signed checkoff
authorization from Kindler for such deduction.
6. Respondent Katz violated Section 8(a)(1) and (5) of the
Act by withdrawing recognition from Local 100 as the col-
lective-bargaining representative of its employees.
7. Respondent Katz violated Section 8(a)(1), (2), and (3)
of the Act by discharging David Kindler.
8. Respondent Katz violated Section 8(a)(1) and (5) of the
Act by evicting representatives of Local 100 from its prem-
ises.
9. Respondent Katz violated Section 8(a)(1) and (2) of the
Act by evicting representatives of Local 100 from its prem-
ises, while at the same time permitting representatives of
Local 131 to remain on its premises and speak to its employ-
ees.
10. Respondent Local 131 has violated Section 8(b)(1)(A)
and (2) of the Act by accepting recognition from, and sign-
ing a contract with, Respondent Katz, which contained a
union-security clause, and by accepting dues which had been
deducted from the salary of employee David Kindler, without
Kindler having signed a written authorization for such a de-
duction.
11. Respondent Katz has not violated the Act in any other
manner as alleged in the complaint.
THE REMEDY
Having found that Respondents have violated Section
8(a)(1), (2), (3), and (5) and Section 8(b)(1)(A) and (2) of
the Act, I shall order that they cease and desist therefrom
and take certain affirmative action designed to effectuate the
policies of the Act.
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Such a remedy does not include checkoff or union-security pro-
visions which are extinguished by the expiration of the contract. Lee
Lumber & Building Co., 306 NLRB 408, 410 (1992); Tampa Sheet,
supra at 326 fn. 15; Bethlehem Steel Co., 136 NLRB 1500, 1502
(1962).
While I have found above that Respondent Katz
discriminatorily discharged David Kindler on May 14, 1991,
the General Counsel does not seek an order requiring Kin-
dler’s reinstatement, as it concedes that at some point in
June, Respondent made a valid offer of reinstatement to Kin-
dler. However, the General Counsel has not stated, nor does
the record sufficiently establish, precisely when Respondent
Katz made a valid offer and/or consequently when Kindler’s
backpay terminates. While the record does reflect various let-
ters sent by Respondent Katz to Kindler in June, as well as
Kindler’s replies to some of them, the record does not con-
tain testimony concerning various alleged conversations be-
tween Kindler and Katz officials, which are referred to in
some of the letters. Therefore, I conclude that the record has
not been sufficiently developed to determine at what point
between June 3 and 14, Respondent’s backpay obligation ter-
minates. I shall therefore leave that issue to be resolved in
the compliance portion of this proceeding. I shall recommend
that Kindler’s backpay be computed in the manner set forth
in F. W. Woolworth Co., 90 NLRB 389 (1950), with interest
in the manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Since I have also found above that Respondent Katz vio-
lated Section 8(a)(1) and (2) of the Act by deducting dues
from Kindler’s salary, and Respondent Local 131 by accept-
ing such dues, I shall order Respondents to jointly and sever-
ally reimburse Kindler for such moneys improperly deducted
from his salary, plus interest.
I have also found that Respondents violated Section
8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of the
Act, by agreeing to recognition, and by executing and enforc-
ing a collective-bargaining agreement containing a union-se-
curity clause with respect to Respondent Katz’s employees.
In that connection, the General Counsel requests a remedy of
disestablishing the collective-bargaining relationship and
agreement with Local 131 and the refund of Local 131 dues
and fees to employees.
A disestablishment order is clearly appropriate, with the
caveat that nothing here shall authorize or require the with-
drawal or elimination of any wage increase or other benefits
or terms and conditions of employment that may have been
established pursuant to the performance of the collective-bar-
gaining agreement between Local 131 and Katz. Jayar Metal
Corp., 297 NLRB 603 (1990); Alpha Beta Co., 294 NLRB
228, 231 (1989).
However, with respect to the General Counsel’s request
for reimbursement of dues and fees for all employees, the
Board orders such a remedy only for those employees who
have been coerced to join a union by operation of the union-
security clause. Louisiana Dock, supra at 440; Alpha Beta,
supra at 231. Thus, employees who have voluntarily signed
cards authorizing Local 131 to represent them, prior to the
execution of the unlawful contract, are not deemed to have
been so covered. Alpha Beta, supra; Unit Train Coal Sales,
234 NLRB 1265 (1978). Moreover, while I have found
above that a number of employees of Respondent Katz who
signed cards for Local 131 subsequently signed petitions in
support of Local 100, which invalidated their Local 131
cards for purposes of determining majority support, such ac-
tion does not vitiate the voluntary nature of their signing
Local 131’s cards. Human Development, supra at 1229; Unit
Train, supra at 1265 fn. 3. Therefore, it is appropriate to
order reimbursement for all unit employees, except those
who signed authorization cards for Local 131 prior to the
execution of the collective-bargaining agreement on April 18,
1991, plus interest. Human Development, supra; Louisiana
Dock, supra.
I have also found that Respondent Katz violated Section
8(a)(1) and (5) of the Act by withdrawing recognition from
Local 100. With respect to this finding, the General Counsel
requests that Respondent Katz be required to reinstate the
terms of the expired collective-bargaining agreement with
Local 100 as well as to reconvene bargaining with Local
100. I agree.
In addition to ordering Respondent Katz to resume bar-
gaining with Local 100 over terms for a new agreement,
which remedy is clearly appropriate, I also believe that in the
circumstances here, that an order requiring the restoration of
the employees prior terms and conditions of employment,
which were encompassed in the Local 100 contract, is appro-
priate as well.
Such a remedy is routine where an employer has been
found to have violated the Act by unilaterally changing terms
and conditions of employment of employees as encompassed
by an expired collective-bargaining agreement. Tampa Sheet
Metal Co., 288 NLRB 322, 326–327 (1988).23
However, here the complaint does not allege that Respond-
ent Katz violated Section 8(a)(5) by making unilateral
changes and indeed, as noted above, does not even contain
an allegation of withdrawal of recognition. The General
Counsel does not seek a finding that Respondent Katz vio-
lated Section 8(a)(1) and (5) by making unilateral changes,
but requests as a remedy for the unlawful recognition, the
restoration of the status quo, by placing the employees in the
same position that they would have been in, had Respondent
not unlawfully withdrawn recognition. I had no difficulty in
finding a violation in Respondent Katz’s withdrawal of rec-
ognition, notwithstanding the absence of a complaint allega-
tion, since that issue was fully litigated, and was in fact
raised as a defense by both Respondents to their unlawful
recognition and execution of a contract.
I have more difficulty in finding Respondent Katz liable
for the remedying of unilateral changes, which were not al-
leged in the complaint as violative of the Act. While I be-
lieve that the more appropriate procedure would have been
to include specific allegations in the complaint concerning
these unilateral changes, I am persuaded that the absence of
such allegations does not preclude the remedying of Re-
spondent’s withdrawal of recognition by ordering the restora-
tion of the prior terms and conditions of employment. I note
in this connection, Lee Lumber, supra, where the administra-
tive law judge, affirmed by the Board without comment, con-
cluded that in light of the complaint allegation of an unlaw-
ful withdrawal of recognition from the union, ‘‘the Respond-
ent is charged with derivative 8(a)(5) violations based upon
subsequent changes in employment terms.’’ 306 NLRB at
412.
More significantly, the Board in U.S. Marine Corp., 293
NLRB 669, 672 (1989), affd. 916 F.2d 1183 (7th Cir. 1990),
335KATZ’S DELI
24 As noted above, the union-security clause and checkoff provi-
sions are not included in this Order.
25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
ordered an employer to restore prior terms and conditions of
employment of employees, notwithstanding the absence of a
complaint allegation that it had made unlawful unilateral
changes. Here, as in U.S. Marine, supra, an order requiring
the institution of prior terms and conditions of employment
would be ‘‘simply restoring as nearly as possible the situa-
tion that would have prevailed but for Respondent’s unfair
labor practice. We rely on the established principle that . . .
the restoration of the status quo ante is a necessary remedy
as it is the Board’s policy that the wrongdoer, rather than the
victim should bear the hardships of the unlawful action.’’ Id.
at 672.
Moreover, here as was also the case in U.S. Marine, supra,
no prejudice has been shown, nor can such prejudice be
readily discerned, from the General Counsel’s failure to al-
lege specifically that unlawful unilateral changes were made.
There is nothing indicating that Respondent Katz would have
litigated the case any differently or would have presented any
different evidence had such specific allegations been made.
On the contrary, it is clear that Respondent would have re-
lied on its same and sole defenses, i.e., that it was justified
in withdrawing recognition from Local 100 and in signing a
contract with Local 131. Id. at 672.
Therefore, I shall recommend that Respondent Katz be or-
dered to restore its employees’ terms and conditions of em-
ployment to its prior status, which is set forth in the expired
collective-bargaining agreement with Local 100, including
but not limited to payments into the Local 100 funds, and
granting visitation privileges to its business agents.24
In that connection, any amounts due to employees shall be
computed as in Ogle Protection Service, 182 NLRB (1970),
plus interest as prescribed in New Horizons for the Retarded,
supra. Respondent Katz shall remit all payments owed to
Local 100’s benefit funds and reimburse their employees in
the manner set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981),
for any expenses resulting from the failure to make these
payments. Any amounts that Respondent must pay into the
benefit funds shall be determined in the manner set forth in
Merryweather Optical Co., 240 NLRB 1213 (1979).
Based on these findings of fact and conclusions of law and
on the entire record, I issue the following recommended25
ORDER
A. Respondent Katz’s Delicatessen of Houston Street,
d/b/a Katz’s Deli, New York, New York, its officers, agents,
representatives, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge if they refuse to
join or support Local 131, International Brotherhood of
Trade Unions.
(b) Discharging or otherwise discriminating against its em-
ployees, because of its employees’ support for Hotel Em-
ployees & Restaurant Employees International Union, Local
100 of New York, New York & Vicinity, AFL–CIO or be-
cause the employees refuse to join or support Local 131.
(c) Deducting moneys from the salaries of its employees
and forwarding the moneys to Local 131 without the employ-
ees having executed a written authorization for such a deduc-
tion.
(d) Withdrawing recognition from or refusing to recognize
and bargain with Local 100 as the exclusive collective-bar-
gaining representative of its employees in the following ap-
propriate unit:
All full-time and regular part-time waiters, waitresses,
countermen persons, buspersons, chefs, kitchen person-
nel and porters employed by Respondent Employer at
its Houston Street facility.
(e) Discontinuing its prior practice of permitting visitation
at its facility by Local 100 representatives, calling the police
to have such representatives removed from its facility, or
permitting representatives of Local 131 to speak to its em-
ployees at its premises, while denying such an opportunity
to representatives from Local 100.
(f) Recognizing or bargaining with Local 131 as the exclu-
sive collective-bargaining representative of its employees in
the aforesaid collective-bargaining unit, unless and until that
labor organization has been certified by the National Labor
Relations Board as the exclusive collective-bargaining rep-
resentative of such employees.
(g) Giving effect to or enforcing the collective-bargaining
agreement executed with Local 131 or to any extension, re-
newal, or modification of it; provided, however, that nothing
in this Order shall authorize or require the withdrawal or
elimination of any wage increase or other benefits or terms
and conditions of employment that may have been estab-
lished pursuant to the performance of the above contract.
(h) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole its employee David Kindler for the dis-
crimination against him and the unlawful deduction from his
salary, plus interest, in the manner set forth in the remedy
section of this decision.
(b) On request, recognize and bargain with Local 100 as
the exclusive collective-bargaining representative of its em-
ployees in the aforesaid appropriate unit and, if an agreement
is reached, embody it in a signed document.
(c) On request of Local 100, rescind any departures from
terms and conditions of employment that existed prior to
April 11, 1991, retroactively restoring preexisting terms and
conditions of employment of employees as set forth in the
remedy section of this decision.
(d) Withdraw and withhold all recognition from Local 131
as the collective-bargaining representative of its employees
unless and until that labor organization has been certified by
the National Labor Relations Board as the exclusive rep-
resentative of such employees.
(e) Jointly and severally with Local 131, reimburse all unit
employees, except those who joined or signed authorization
cards for Local 131 prior to the execution of the collective-
bargaining agreement between Katz and Local 131 on April
336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 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
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.’’
27 See fn. 26, above.
18, 1991, for initiation fees, dues, or other obligations of
membership in Local 131, plus interest.
(f) Preserve and, on request, make available to the Board
and its agents for examination or copying, all records or doc-
uments necessary to determine the amounts owed to the em-
ployees.
(g) Post at its facility in New York, New York, copies of
the attached notice marked ‘‘Appendix A.’’26 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(h) Post at the same places and under the same conditions
copies of Appendix B as soon as it is forwarded by the Re-
gional Director.
(i) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
B. Respondent Local 131, International Brotherhood of
Trade Unions, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Acting as the exclusive collective-bargaining represent-
ative of Respondent Katz’s employees unless and until the
labor organization is certified by the National Labor Rela-
tions Board as the exclusive collective-bargaining representa-
tive of such employees.
(b) Giving effect or attempting to enforce the collective-
bargaining agreement between Respondent Katz and Local
131 or to any extension renewal or modification thereof.
(c) Accepting dues or fees which have been deducted from
the salaries of employees by Respondent Katz, without the
employees having executed a written authorization for such
deduction.
2. Take the following affirmative action necessary to ef-
fectuate the purposes of the Act.
(a) Jointly and severally with Respondent Katz, reimburse
David Kindler and all unit employees, except those who
joined or signed authorization cards for Local 131 prior to
the execution of the collective-bargaining agreement between
Katz and Local 131 on April 18, 1991, for initiation fees,
dues, or other obligations of membership in Local 131, plus
interest.
(b) Post at conspicuous places in Respondent Local 131’s
business office, meeting halls, and places where notices to its
members are customarily posted copies of the attached notice
marked Appendix ‘‘B.’’27 Copies of such notice shall be
posted on forms provided by the Regional Director for Re-
gion 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Furnish to the Regional Director signed copies of the
aforesaid notice for posting by Respondent Katz. Copies of
the notice to be furnished by the Regional Director shall,
after being signed by Respondent 131, be forthwith returned
to the Regional Director.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed,
as to all allegations not specifically found here.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten our employees with discharge if
they refuse to join or support Local 131, International Broth-
erhood of Trade Unions.
WE WILL NOT discharge or otherwise discriminate against
our employees, because of our employees’ support for Hotel
Employees & Restaurant Employees International Union,
Local 100 of New York, New York & Vicinity, AFL–CIO
or because the employees refuse to join or support Local
131.
WE WILL NOT deduct moneys from the salaries of our em-
ployees and forward the moneys to Local 131, without the
employees having executed a written authorization for such
a deduction.
WE WILL NOT withdraw recognition from or refuse to rec-
ognize and bargain with Local 100 as the exclusive collec-
tive-bargaining representative of our employees in the fol-
lowing appropriate unit:
All full-time and regular part-time waiters, waitresses,
countermen persons, buspersons, chefs, kitchen person-
nel and porters employed by us at our Houston Street
facility.
WE WILL NOT discontinue our prior practice of permitting
visitation at our facility by Local 100 representatives, or call
the police to have such representatives removed from our fa-
cility, or permit representatives of Local 131 to speak to our
employees at our premises, while denying such an oppor-
tunity to representatives from Local 100.
WE WILL NOT recognize or bargain with Local 131 as the
exclusive collective-bargaining representative of our employ-
ees in the aforesaid collective-bargaining unit, unless and
until that labor organization has been certified by the Na-
tional Labor Relations Board as the exclusive collective-bar-
gaining representative of such employees.
WE WILL NOT give effect to or enforce the collective-bar-
gaining agreement that we executed with Local 131 or to any
extension, renewal, or modification of it; provided, however,
that nothing in this Order shall authorize or require the with-
337KATZ’S DELI
drawal or elimination of any wage increase or other benefits
or terms and conditions of employment that may have been
established pursuant to the performance of the above con-
tract.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL make whole employee David Kindler for our
discrimination against him and our unlawful deduction from
his salary, plus interest.
WE WILL, on request, recognize and bargain with Local
100 as the exclusive collective-bargaining representative of
our employees in the aforesaid appropriate unit and, if an
agreement is reached, embody it in a signed document.
WE WILL, on request, of Local 100 rescind any departures
from terms and conditions of employment that existed prior
to April 11, 1991, retroactively restoring preexisting terms
and conditions of employment of our employees.
WE WILL withdraw and withhold all recognition from
Local 131 as the collective-bargaining representative of em-
ployees unless and until that labor organization has been cer-
tified by the National Labor Relations Board as the exclusive
representative of such employees.
WE WILL, jointly and severally with Local 131, reimburse
all unit employees, except those who joined or signed author-
ization cards for Local 131 prior to the execution of the col-
lective-bargaining agreement between us and Local 131, on
April 18, 1991, for initiation fees, dues, or other obligations
of membership in Local 131, plus interest.
KATZ’S DELICATESSEN OF HOUSTON STREET
D/B/A KATZ’S DELI
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT act as the exclusive collective-bargaining
representative of the employees of Katz’s Delicatessen of
Houston Street, Inc., d/b/a Katz’s Deli, unless and until we
are certified by the National Labor Relations Board as the
exclusive representative of such employees.
WE WILL NOT give effect to or attempt to enforce the col-
lective-bargaining agreement between Katz’s and us or to
any extension, renewal, or modification thereof.
WE WILL NOT accept dues or fees which have been de-
ducted from the salaries of employees by Katz’s Deli, with-
out the employees having executed a written authorization
for such deduction.
WE WILL, jointly and severally with Katz’s Deli, reimburse
David Kindler, and all unit employees, except those who
joined or signed authorization cards for us prior to the execu-
tion of the collective-bargaining agreement between Katz’s
Deli and us on April 18, 1991, for initiation fees, dues, or
other obligations of membership in our organization, plus in-
terest.
LOCAL 131, INTERNATIONAL BROTHERHOOD
OF TRADE UNIONS