Latin Quarter Cafe, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1970

182 N.L.R.B. 997 (N.L.R.B. 1970)

LATIN QUARTER CAFE, INC. -
Latin Quarter Cafe, Inc. and American Guild of Variety
Artists, AFL-CIO. Case 2-CA=11705
June 2, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On January 12, 1970, Trial Examiner Marion C. Lad-
wig issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in certain unfair
labor practices and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter the Respondent filed exceptions to the Trial
Examiner's Decision.' The General Counsel and the
Charging Party filed answering briefs, and, in addition,
the Charging Party filed cross-exceptions. ,
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this
case and hereby adopts the findings,2 conclusions, and
recommendations of the Trial Examiner, with the follow-
ing modifications.
THE REMEDY
We agree with the Trial Examiner that by unilaterally
discontinuing welfare contributions, engaging in individ-
ual bargaining with employees, offering higher salaries
to individual employees than was offered in collective
bargaining , threatening employees with the loss of jobs
if they struck, and reneging on a retroactivity agreement,
Respondent violated Section 8(a)(5) and (1) of the Act.
We are in agreement with the Trial Examiner that,
it will effectuate the policies of the Act to order Respond-
ent to cease and desist from engaging in the above
conduct found to be in violation of the Act.
The Trial Examiner recommended, however, that,
if Respondent ever opens and operates an establishment
in the New York Metropolitan area, it be ordered to
bargain with the Charging Party. We do not agree.
Such an order is unwarranted in light of the history
of collective bargaining between the parties and the
' The objections of the General Counsel and the Charging Party
to consideration of Respondent ' s exceptions , on the ground that they
do not satisfy procedural requirements are overruled
4 The Trial Examiner found that because the Respondent hired the
employees for the show commencing on September 18, 1968, and received
the benefits therefrom, it is estopped from disclaiming its obligations
as employer of the cast We make the express finding that the members
of the cast in the unit found appropriate for the show commencing
on September 18, 1968, entitled Belle Du Nuit were employees of
the Respondent.
997
finding that Respondent has permanently closed its New
York establishment. The possibility does exist, however,
that Respondent will resume its operation in New York
at some future time. We therefore shall retain jurisdiction
herein so that, if such an event should, occur, we may
consider its legal implications.3
We will also order that the Respondent make the
contributions which were withheld from the AGVA wel-
fare trust fund and the supplemental AGVA welfare
fund on behalf of its employees who performed and/
or rehearsed in the period of time from September
18 through December 26, 1968, computed at $3.50 a
week per performer ($2.50 to the trust fund and. $1
to the supplemental fund), plus interest at 6 percent
per annum.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended , the National Labor Relations
Board hereby orders that the Respondent , Latin Quarter
Cafe, Inc., New York , New York, its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the American
Guild of Variety Artists, AFL-CIO, if it should be
the exclusive bargaining representative of its employees
in an appropriate bargaining unit.
(b) Unilaterally discontinuing welfare contributions or
otherwise changing rates of pay , wages, hours of employ-
ment , or other terms or conditions of employment with-
out first giving notice and bargaining to an impasse
with respect thereto with the American Guild of Variety
Artists, AFL-CIO, if it should be the exclusive bargain-
ing representative of all its employees in an appropriate
bargaining unit.
(c) Engaging in, unlawful individual bargaining with
its employees within an exclusive bargaining unit.
(d) Threatening its employees with the loss of jobs
as a reprisal for engaging in a lawful strike.
(e) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Make the contributions which were withheld from
AGVA welfare trust fund and the supplemental AGVA
welfare fund on behalf of its employees who performed
and/or rehearsed in the period of time from September
18 through December 26, 1968, in the amounts and
in the manner set forth in the section of our Decision
entitled "The Remedy."
(b) Preserve and, upon request , make available to
the Board , or its agents , for examination and copying,
all payroll records and reports, and all other records
necessary to determine the amount of the contributions
to be paid into the aforementioned AGVA welfare funds.
' Motor Repair, Inc , 168 NLRB 1082
182 NLRB No. 144
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Mail a copy of the attached notice marked "Appen-
dix' 14 to each of its employees referred to above
(d) Notify the Regional Director for Region 2, in
writing, within 10 days from the date of this Order,
what steps the Respondent has taken to comply herewith
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
specifically found
' In the event this order is enforced by a Judgment of the 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
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT withhold welfare contributions
for our variety artist employees, or otherwise
change wages or working conditions , without first
bargaining to an impasse with their exclusive bar-
gaining representative
WE WILL NOT engage in unlawful individual bar-
gaining with our variety artist employees
WE WILL NOT threaten our variety artist employ-
ees with the loss of jobs as a reprisal for engaging
in a lawful strike
WE WILL make contributions to the AGVA wel-
fare funds for our employees who performed in
the Belle Du Nuit show, and who rehearsed for
the Red Hot and Beautiful show , plus 6 percent
interest per annum
WE WILL NOT unlawfully interfere with our
employees ' union activities
LATIN QUARTER CAFE,
INC
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Borad ' s Office,
36th Floor , Federal Building , 26 Federal Plaza, New
York, New York 10007, Telephone 212-264-0300
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C LADWIG , Trial Examiner This case was
tried at New York, New York, on October 24 and
29, 1969 , pursuant to a charge filed on December 26,
1968,' and amended January 10, 1969 , by American
Guild of Variety Artists, AFL-CIO, herein called AGVA,
and pursuant to a complaint issued on May 2, 1969
The primary issues are whether the Respondent, Latir
Quarter Cafe , Inc , herein called the Latin Quarter,
(a) bargained in bad faith with AGVA by unilaterally
discontinuing payments to the welfare funds, bargaining
individually with employees , and other conduct, and
(b) threatened employees with the loss, of their jobs
if they engaged in a strike, in violation of Section
8(a)(5) and ( 1) of the National Labor Relations Act,
as amended
Upon the entire record , including my observation
of the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel, the
Latin Quarter , and AGVA, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY AND THE UNION
INVOLVED
The Latin Quarter, a New York corporation, has
been engaged in the operation of a nightclub, restaurant,
and bar in New York City, where in 1968 it derived
gross revenues in excess of $500 ,000, and purchased
a substantial amount of goods and materials delivered
to it either directly from outside the State or from
other enterprises which received the goods and materials
directly from outside the State The Latin Quarter
admits, arld I find , that it is and has been at all times
material herein an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act,
and that AGVA is a labor organization within the meaning
of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Beginning of Negotiations
For many years , AGVA has represented the variety
artists employed at the nightclub In a collective-bargain-
ing agreement (entitled Minimum Basic Agreement, here-
in called MBA), which was executed by the Latin Quarter
and AGVA on April 7, 1966, and which was terminated
on May 31 , 1968, the Latin Quarter recognized AGVA
as the exclusive collective -bargaining agency for all varie-
ty artists employed by the Latin Quarter , including
all actors, singers , dancers, and other performers or
entertainers , and excluding persons who act solely as
musicians or leaders in orchestras and bands (I find
that this unit, excluding supervisors as defined in the
' All dates unless otherwise indicated are in 1968
LATIN QUARTER CAFE , INC 999
Act, is appropriate for bargaining ) The MBA provided
for minimum compensations of $175 a week for principals
(e g , production singers and male dancers ) and $122
for the chorus (showgirls and female dancers), with
rehearsal pay and additional pay for extra performances
It further provided for employer contributions totaling
$3 50 a week per performer to the AGVA welfare funds,
and detailed working conditions
When AGVA representatives met on June 5 with
Latin Quarter Treasurer and Owner Elias M Loew
and Attorney Harry Zweibel to negotiate a new agree-
ment , the Latin Quarter representatives stated that they
wanted to have nothing to do with the AGVA proposals
because the Latin Quarter had not been the employer
of any variety artists for about 6 months (At the time,
the Latin Quarter was under contract with a Canadian
producer , Muriel Millard , to pay her each week until
September 10 a lump sum of about $5,500 to produce
a package show at the nightclub Since about December
13, 1967, Mrs Millard had been producing a former
Expo '67 show called Terre Des Femmes, or Woman's
World Under her MBA with AGVA, she was paying
show girls $ 125 a week , paying dancers from $140 to
$225 a week , and making the AGVA welfare contribu-
tions) As credibly testified by AGVA Executive Presi-
dent Penney Singleton , the Latin Quarter representatives
stated "that when they would put on their own show,
they would let us know " (I rely primarily on Miss
Singleton ' s testimony concerning what transpired at the
various meetings She impressed me as a very careful,
honest witness who had a much better memory than
Loew about most of the details )
Hearing rumors in July that auditions were being
held for a new show and that rehearsals were about
to begin , AGVA again sought negotiations for a new
agreement The Latin Quarter agreed , and negotiations
were held on July 31, September 13, October 3, and
December 16, preceding a strike, on December 27
In the July 31 negotiations , Latin Quarter Attorney
Zweibel proposed an extension of the MBA which had
been terminated on May 31, stating that a new show
would open about September 11 AGVA refused to
extend the old agreement , and instead "requested that
the new agreement be retroactive to the opening date
of the new show , and Mr Zweibel and Mr Loew
agreed to that " Thereafter , Miss Singleton presented
the "`money package" of $175 a week for the chorus
and $300 for principals Both Loew and Zweibel became
very "explosive " and said they would not have anything
to do with such a proposal (increasing salaries over
$50 a week for showgirls and girl dancers and $125
a week for principals ) Loew demanded to know what
AGVA' s minimums at the time were, and Singleton
said $ 150 for the chorus and $250 for principals Zweibel
stated that the Latin Quarter auditioned and hired girls
as amateurs , and that they were worth only $122 AGVA
then proposed a number of addidional benefits, which
the Latin Quarter also rejected
B Unilateral Change in Benefits
I Discontinuance of welfare contributions
At the time of the July 31 negotiations , the Latin
Quarter planned to produce its own show (entitled Red
Hot and Beautiful) in December , but planned to have
Mrs Millard produce the new September show (entitled
Belle Du Nuit , or Call Girl) However , AGVA had
not renewed Mrs Millard 's MBA, and she could not
employ the cast for the September show without risking
a strike Therefore , under a verbal agreement with the
Latin Quarter , Mrs Millard produced the September
show, but the Latin Quarter employed the dancers and
show girls at the "prevailing" Latin Quarter rate of
$122 50 (The evidence does not disclose the rates paid
the principals ) Pursuant to this arrangement , Mrs Mil
lard's office wrote AGVA on August 30 that in her
next contract with the Latin Quarter, "the Latin Quarter
will employ all the artists in the show and we
will only do the producing of the show " (Although
there is no direct evidence that the Latin Quarter partici-
pated in the writing of this letter , I draw the inference
that the Latin Quarter had this arrangement in mind
when it proposed in the July 31 negotiations that the
terminated MBA be extended , and then reached a verbal
agreement with AGVA that the former MBA minimums
could be paid the cast of the September show , provided
that the minimums negotiated later would be paid retroac-
tively )
On August 30, the same date as Mrs Millard ' s letter,
Owner Loew signed an "AGVA Standard Form of Art-
ists Engagement Contract," herein called AEC, for each
of 14 dancers and showgirls (The evidence shows that
only 2 of the 14 were in the cast of the Woman's
World package show in March , when that show-which
opened in December 1967-was extended and the per-
formers' AEC's were again signed by Mrs Millard as
their employer ) Mrs Millard had prepared the August
30 AEC's for Loew 's signature Each of the AEC's
stated that it was an agreement between the Latin Quar-
ter, "hereinafter called the `Operator' " and the "Art-
ist," and specifically stated
I The Operator hereby warrants that he is the
operator herein at the present time and for the
duration of this contract, and engaged the Artist
and the Artist hereby accepts said engagement,
to present this act under the direction , supervision
and control of the Operator
After a further 1-week extension of the Woman's
World show, the new show opened on or about Septem-
ber 18 , and ran until December 17 On October 14,
some of the chorus girls and principals in the cast
(all members of AGVA ) went to the AGVA office and
complained that they were not being paid for extra
performances AGVA discussed the matter with Loew,
who accepted the complaints-without suggesting in any
way that the Latin Quarter was not the employer of
the cast The employees were later paid for the extra
performances (as required by the terminated MBA)
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was not until after the last negotiating session
on December 16 that the Latin Quarter disclaimed being
the employer of the Call Girl cast . After that meeting,
some of the AGVA members reported to President
Singleton that welfare contributions had not been made
for their performances at the Latin Quarter . Miss Single-
ton telephoned Latin Quarter Attorney Zweibel who
responded (as credibly testified by Singleton ) that "they
don't pay welfare on independent contractors ." (Zweibel
did not testify .) A check of the welfare records revealed
that Mrs. Millard , who had been making the welfare
contributions for the Woman ' s World show , stopped
making them on August 30, the date Loew signed the
AEC's to employ the cast for the September show.
Although the Latin Quarter had made the welfare contri-
butions itself in 1967 when an earlier package show
("French Follies ") was at the nightclub , the Latin Quar-
ter had not sent in any welfare contributions for either
the Call Girl show which opened about September 18,
nor for the rehearsals which began on November 25
for the "Red Hot and Beautiful" show . Neither Loew
nor Attorney Zweibel had said anything earlier about
not making the welfare contributions.
The General Counsel contends that on and after Sep-
tember 18 , the Latin Quarter "unilaterally changed a
prevailing term and condition of employment by discon-
tinuing its contributions into a welfare fund which had
been established to provide benefits for the persons
represented by AGVA," without prior notice to AGVA.
(Latin Quarter Controller John Shannon admitted knowl-
edge that all the performers on the Latin Quarter stage
were members of AGVA.)
1. Claimed subterfuge to avoid strike
Notwithstanding the executed AEC's, acknowledging
in writing the employment by the Latin Quarter of
the Call Girl chorus (at the Latin Quarter's previous
lower minimum ), the Latin Quarter denies that the mem-
bers of the cast were its employees.
The Latin Quarter contends , in effect , that the August
30 AEC' s, showing it to be the "'Operator" and the
employer of the girls, were a mere subterfute, and
asserts that the "Millard Show never ceased being a
package show ." In support of this contention , it intro-
duced into evidence checks paid to Mrs . Millard weekly,
beginning in November . (It did 'not introduce into evi-
dence checks for the latter part of September or for
October , when the cast was paid for extra performances
at the request of AGVA.) One weekly check (in the
amount of $2,817) was for production costs, and the
other weekly check (varying from $2,378 to $2,528)
was for the payroll . When asked why the Latin Quarter
began in September paying Mrs. Millard with two checks
weekly , instead of one as before , Owner Loew testified
that "we signed the girls at the prevailing scale that
I'have been paying , and turned over the check to her
and she made the payment to the girls . . . . Because
she was afraid that Mrs. Penney Singleton will call
the girls out, wouldn't have no show ." The cast was
not shown on the Latin Quarter's office records as
employees.
Thus, in order to secure the services of the union
performers without a strike, the Latin Quarter itself
hired the employees and held itself out to AGVA as
being the employer, while secretly arranging for Mrs.
Millard to show them on her records as her employees.
Having received the benefits from employing the per-
formers itself (thereby avoiding a strike for the full
13-week run of the show), the Latin Quarter is not
estopped from disclaiming its obligations as employer
of the cast. I so find.
2. Other contentions and concluding findings
The Latin Quarter asserted various other conflicting
reasons for not having made the contributions to the
AGVA welfare funds after , September 18.
At the trial, Owner Loew denied knowledge that
Mrs. Millard was not making the contributions for the
September show , adding : "And if she wouldn't pay,
[we] would take it off from her and 'pay AGVA, but
we have no notice of any kind from her. If she wouldn't
pay, we take it off from her and pay AGVA." In
considering this assertion , that the nonpayments to the
welfare funds were unintentional , I note that by signing
the August 30 AEC' s, the Latin Quarter committed
itself in writing to make the contributions . In language
almost identical to that in the terminated MBA, each
of the AEC 's specifically provided that the Latin Quarter
"accepts" the AGVA welfare programs and ",agrees
to make contributions " to the welfare funds in the
total amount of $3.50 a- week per performer. AGVA
Executive President Singleton credibly testified that
Latin Quarter Attorney Zweibel "kept promising" that
he would send her copies of the August 30 AEC's
(as required by both the terminated MBA and the AEC's
themselves), but he failed to do so. I also note that
after signing the November 12 AEC' s for the Red Hot
and Beautiful show (as discussed below ), the Latin
Quarter again failed to comply with AGVA' s request
that it file the AEC's with AGVA-at a, time when
the Latin Quarter continued to withhold the welfare
contributions , even though it was then paying its employ-
ees their wages directly during 5 weeks of rehearsals.
Under all the circumstances , I find that the failure
to make the welfare contributions for the September
show was intentional , - and discredit Loew' s testimony
to the contrary.
The Latin Quarter contends in its brief that "It 'was
not even possible to compute the amount of any employ-
er's contribution to the AGVA Welfare Fund in the
absence of an MBA ." This contention igiiores the fact
that not only the terminated MBA, but also the AEC's
(which the Latin Quarter signed ) specifically set out
the $3 . 50 weekly contributions.
Also in its brief , the Latin Quarter contends that
"there could be no contribution by Respondent , because
there was no labor agreement ." In support of this conten-
tion , it cites the provision in the AGVA ' welfare trust
fund agreement and declaration of trust which reads:
LATIN QUARTER CAFE, INC.
"The operator shall pay into the. fund the sum provided
for pursuant to the Collective Bargaining Agreement
entered into between it and AGVA." However, AGVA
President Singleton credibly testified that inasmuch as
AGVA and the Latin Quarter were in negotiations for
a new collective-bargaining agreement and Loew had
signed the AEC's agreeing to make the welfare payments,
AGVA would have accepted the welfare contributions
from the Latin Quarter at that time, provided the AEC's
had been filed with AGVA.
The Latin Quarter further contends that under Section
302 of the Act , "no employee could benefit from an
employer ' s contribution in the absence of a signed labor
contract between the employees ' union and such employ-
er," citing Moglia v. Geoghegan , 403 F.2d 110 (C.A.
2, 1968). I agree with AGVA that the Moglia case
is clearly inapplicable. In that case , the court pointed
out (403 F . 2d at 114-115) that the question presented
was whether the widow was entitled to pension benefit
payments from the Teamsters local pension trust fund
"notwithstanding the fact that there never has been
a written collective bargaining agreement or any other
written agreement " between the employer and the local
"detailing the basis upon which payments were to be
made ." Here , in contrast , there had been a collective-
bargaining agreement (the recently terminated MBA),
in which the Latin Quarter had specifically accepted
the "AGVA Welfare Program " and the "Supplemental
AGVA Welfare Program ," and the parties were currently
engaged in negotiating a renewal of the MBA . Moreover,
the Latin Quarter had signed AGVA's AEC, contracts,
further accepting in writing both welfare programs. (I
note that in its answer , filed before trial , the Latin
Quartet argued that the AEC " is more truly a collective
agreelrlertt than an individual agreement ," and that it
"is a specialized and unique collective agreement" by
which AGVA, without signing it, "obtains for its mem-
bers, terms and conditions of employment ." In making
this argument , the Latin Quarter quoted some of the
AEC provisions, including those in which the employer
"agrees to make contributions " to the AGVA trust
funds, and to file a copy of the AEC with AGVA.)
I'find that the reliance on the Moglia case is misplaced,
and that the contention is a mere afterthought.
It is well established that notwithstanding the expira-
tion of a collective -bargaining agreement , absent an
impasse , an employer may not unilaterally make changes
in employment conditions , such as welfare benefits,
previously established by the agreement . Laclede Gas
Company, 173 NLRB No. 35 ( 1968); Bethlehem Steel
Co. (Shipbuilding Div.) v. N. L.R.B., 320 F .2d 615 (C.A.
3 1963 ): Sioux City Bottling Works, 156 NLRB 379,
385 (1965). Here the Latin Quarter , without prior notice
to AGVA, unilaterally changed the working conditions
established in the recently terminated MBA by failing
to make the welfare contributions on behalf of its
employees who performed in the Call Girl show which
opened about September 18, and later on behalf of
its employees who were rehearsing for the Red Hot
and Beautiful - show in November and December. In
agreement with the General Counsel and AGVA, I find
1001
that the Latin Quarter thereby violated Section 8(a)(5)
of the Act.
C. Individual Bargaining and Threats
After employing, the cast of the September show,
the Latin Quarter next met in negotiations with AGVA
on -September 19 (1 day after the scheduled opening
of the new show). No progress was made toward reaching
an agreement.
In the October 3 negotiations, Owner Loew made
his only counteroffer, to raise the minimum for girl
dancers and showgirls to $130 a week. (Although AGVA
President Singleton could not remember on the stand
whether this offer was made on September 19 or October
3, Loew credibly testified that he made it in the October
meeting). AGVA demanded minimums of $150 for the
chorus and $250 for principals. The Latin Quarter advised
that it was losing money and could not pay more and
AGVA requested to see the books. The Latin Quarter
consented. Also at this meeting , as credibly testified
by Singleton, Loew stated that "they don't negotiate
for principals," calling them independent contractors.
Such principals as male dancers and production singers,
when employees of the Latin Quarter, are clearly within
the contractual unit found to be appropriate. However,
in the absence of a specific allegation in the complaint,
I do not rule on whether the Latin Quarter separately
violated Section 8(a)(5) by refusing to bargain for princi-
pals. Nevertheless, this refusal to negotiate minimum
salaries for this part of the bargaining unit appears
to have some significance when considered in connection
with the Latin Quarter's subsequent conduct, as dis-
cussed below. No agreement was reached on any of
AGVA's contract demands.
After this meeting ,.AGVA inspected the Latin Quar-
ter's books, and refused the Latin Quarter' s request
for AGVA's AEC contract forms, in the hope that
the bargaining would be expedited. Meanwhile, the Latin
Quarter obtained a supply of the AEC forms from
another source and, without prior notice to AGVA,
began signing up a cast for the December show-at
higher rates. Thirteen of the AEC's in evidence, all
dated November 12 or 15, show that the Latin Quarter
employed nine girl dancers at $130 a week, three show
girls at $150 a week, and a "principal" (production
singer Kathleen Shaughnessy), at $200 a week. Even
though the expired MBA required the Latin Quarter
to execute the AEC's "before the commencement of
the rehearsals," and to furnish copies to AGVA within
48 hours, the Latin Quarter never filed the copies with
AGVA) as it had in prior years). As credibly testified
by AGVA President Singleton, "we . . . didn't even
know what was going on." Also, as previously noted,
the Latin Quarter never made the $3.50 per performer
weekly welfare contributions for the 5 weeks of rehears-
als.
On December 16, about 10 days before the Red Hot
and Beautiful show was scheduled to open, the Latin
Quarter and AGVA met in negotiations again . Although
still demanding minimums of $150 and $250 for chorus
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and principals , AGVA scaled down some of its other
demands The Latin Quarter , without revealing the fact
that it had employed three show girls at $150 and a
production singer at $200 , advised AGVA that $130
was its best offer , 'take it or leave it " As AGVA
was "trying to recap the proposals , starting from the
top to go through them again ," President Singleton
commented that "about the only thing that we have
agreed on is the retroactivity " The Latin Quarter repre
sentatives denied ever agreeing to retroactivity Also
at this meeting , which lasted several hours, AGVA
accused Loew of keeping a double set of books, which
was vehemently denied The meeting finally ended in
an impasse
On December 26, Owner Loew called a meeting of
the chorus in his office As credibly testified by various
witnesses (and undenied by Loew), he told the group
that AGVA had put up a notice on the bulletin board
for a union meeting, and that there was talk about
a strike He said that he had always paid $122 50,
but that he had raised their salary to $130 Loew advised
them that he and AGVA were in negotiations, and
that AGVA wanted a minimum of $150, but that he
could not afford to pay any more than $130 because
his club was losing money He told the members of
the chorus that if they went on strike , "he would just
do away with the chorus people and that he woud
just use main acts in the show " (as recalled by one
witness), or "just throw out the production end of
the show and continue to use three principal acts"
(as recalled by another), and that "if we went on strike
he would just throw out the show and we could all
work as waitresses and secretaries " Loew then told
them that he had not turned in their AEC contracts,
that AGVA had no record of what they would be earning,
that he did not care whether they were AGVA members
in good standing or not, and that they could just ignore
their AGVA membership
The following evening , AGVA called a strike and
the show did not open After announcing the cancella
tion , "Mr Loew told the girls, after he had bought
them their dinner in the club, that if the girls had
only come to him personally , he would have paid them
$150, and therefore it was unnecessary for the Union
to call a strike " (This finding is based on a statement
in production singer Shaughnessy ' s pretrial affidavit,
which she and the stand to be true , and which she and
the Latin Quarter counsel had gone over and corrected
before it was submitted to the Regional Office in January
1969, a month after the event The affidavit was intro-
duced into evidence without objection While on the
stand , Shaughnessy appeared most evasive and quite
hostile to AGVA It appeared , from her demeanor,
that she was feigning a lapse of memory , in an attempt
to help the Latin Quarter' s cause , when she testified
that she could not remember whether she herself heard
Loew make the statement )
The nightclub was closed on December 28 or 29,
and had not been reopened at the time of trial
D Concluding Findings
The Latin Quarter contends in its brief that "there
was no legal reason which forbade execution of the
individual contracts which AGVA required and
which its members executed " This contention , however,
ignores the undisputed fact that the Latin Quarter, with-
out notice to AGVA, granted salary increases in the
individual bargaining with the employees Not only were
four employees given salaries (of $150 and $200 a week)
which had never been offered to AGVA during the
course of negotiations , but nine employees were given
an unilateral increase to $130 , which the Latin Quarter
had proposed in the last negotiating session with AGVA,
and which was the subject of later collective bargaining
after AGVA inspected the Latin Quarter's books (The
Latin Quarter' s brief does not contend that an impasse
existed at the time) I
Furthermore , the undisputed evidence shows that the
Latin Quarter continued to bargain with the employees
in December , as alleged in the complaint , when Owner
Loew took credit for the $130 minimum , advised the
employees that he had not turned in their AEC's, and
encouraged them to forsake AGVA Additionally, after
the strike was called , Loew engaged in further bargaining
with the female employees by telling them "if the girls
had only come to him personally , he would have paid
them $ 150," implying that he was offering them that
minimum if they forsook AGVA I therefore find, as
alleged in the complaint , that the Latin Quarter was
negotiating with AGVA in bad faith by bargaining directly
and individually with bargaining unit employees concern-
ing wages in November and December , and by offering
its employees on December 27 an increase in their
wages (to $150) which was greater than the wage scale
offered to AGVA in negotiations , in violation of Section
8(a)(5) and (1) of the Act
In its brief , the Latin Quarter offers no defense to
the allegation in the complaint that "On or about Decem-
ber 26, 1968, E M Loew, Respondent ' s officer and
agent, at a meeting in his private office, threatened
Respondent's employees that if they engaged in a strike
or like conduct , they would lose their jobs," and that
this further demonstrated that the Latin Quarter had
been negotiating with AGVA in bad faith The undisputed
evidence shows that Loew did threaten the members
of the chorus with a closing of the show , the elimination
of the chorus in the future , and the using of only
the principal acts, if there was a strike In addition,
the evidence shows that these threats were made at
the same time Loew was encouraging the chorus mem-
bers to abandon their AGVA membership Upon consid-
ering this evidence and all the circumstances, I find
that Loew was not merely predicting economic conse-
quences of a strike , but was threatening reprisals in
a further attempt to undermine AGVA I also find that
the threat to retain only the principal acts, together
with the Latin Quarter ' s earlier refusal to bargain for
the principals , revealed an earlier decision on the part
of the Latin Quarter to eliminate AGVA at the night
club, whether or not the chorus members abandoned
LATIN QUARTER CAFE, INC
AGVA I therefore find that the threats to the chorus
members were coercive , and demonstrated bad-faith
bargaining, in violation of Section 8(a)(1) and (5) of
the Act
It is in this context that I further find, in agreement
with the General Counsel , that the Latin Quarter refused
to bargain in good faith when it repudiated its prior
agreement on retroactivity at the December 16 negotiat-
ing session The December meeting was held one day
before the final performance of the Call Girl show
By this time the Latin Quarter had received the benefits
from its employment of the cast at the lower minimum
and without a strike I find that by then falsely denying
having agreed in the July 31 negotiations to give retroac-
tive effect to any new salary minimums agreed upon,
the Latin Quarter further demonstrated its determination
to undermine AGVA' s existence at the nightclub, and
was engaging in bad-faith bargaining , in violation of
Section 8 (a)(5) and ( 1) of the Act
CONCLUSIONS OF LAW
By unilaterally discontinuing welfare contributions,
engaging in individual bargaining with employees, off er-
ing higher salaries to individual employees than offered
in collective bargaining, threatening employees with the
loss of jobs if they struck, and reneging on a retroactivity
agreement, thereby engaging in bad faith bargaining,
the Latin Quarter engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act
THE REMEDY
1003
Having found that the Respondent has committed
certain unfair labor practices , I shall recommend that
it be ordered to cease and desist from such conduct
and from any like or related invasion of its employees'
Section 7 rights, and to take certain affirmative action,
which I find necessary to remedy and to remove the
effect of the unfair labor practices and to effectuate
the policies of the Act
The Respondent having unlawfully changed working
conditions by unilaterally discontinuing its contributions
to the AGVA welfare trust fund and to the supplemental
AGVA welfare fund on behalf of its employees who
performed in the Belle de Nuit show from about Septem-
ber 18 to December 17, 1968 , and its employees who
rehearsed from about November 25 to December 26,
1968, for the Red Hot and Beautiful show , I shall
recommend that the Respondent be ordered to make
the withheld contributions , computed at $3 50 a week
per performer ($2 50 to the trust fund and $1 to the
supplemental fund), plus interest at 6 percent per annum
Inasmuch as the Respondent is no longer in business
at its old address, I shall recommend , as sought by
the General Counsel and the Charging Party , that if
the Respondent ever opens and operates an establishment
in the New York Metropolitan area , that it be ordered
to bargain with the Charging Party I shall also recom-
mend that the Respondent be directed to mail a copy
of the notice to each of its bargaining unit employees
who performed or rehearsed on or after September
18, 1968
[Recommended Order omitted from publication ]