Lenox Grill

National Labor Relations Board - Board Decisions

Apr 3, 1968

170 N.L.R.B. 1027 (N.L.R.B. 1968)

LENOX GRILL 1027
Robert Becker d/b/a Lenox Grill and Cincinnati
Joint Executive Board , Hotel & Restaurant Em-
ployees and Bartenders International Union,
AFL-CIO. Case 9-CA-4184
April 3, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On January 16, 1968, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in certain unfair labor practices as alleged in
the complaint, and recommending that the com-
plaint be dismissed in its entirety, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following
modification.
The Trial Examiner found that the circumstances
of the present case were sufficiently "unusual" to
provide an exception to the application of the
guides of Retail Associates, Inc., 120 NLRB 388.
We do not find it necessary to pass on the question
of "unusual circumstances." Instead, we find that
the Respondent has unequivocally and timely
withdrawn from the multiemployer unit. Thus, writ-
ten notice of Respondent's withdrawal was given to
the Association late in August 1966, well in ad-
vance of either the contract expiration date or the
date set for negotiations. According to the credited
testimony, the Association orally informed the
Union of the Respondent's withdrawal immediately
prior to negotiations, and at the same time
presented the Union with a written list of employer-
members of the Association, which list did not in-
clude the Respondent's name. In these circum-
stances, we find that adequate notice was given the
Union before negotiations commenced, and that
Respondent 's withdrawal from the Association was
effect; ve.1 We conclude , therefore , in agreement
with the Trial Examiner , that Respondent did not
violate Section 8(a)(5) and (1) of the Act by fail-
ing to execute the Association -wide agreement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
' We also note that the Union made no protest at the negotiations and
waited until 8 days after the Association contract had been executed before
sending Respondent notice that the Union did not accept his withdrawal
from the Association Similar conduct was held by the Board to constitute
union acquiescence in withdrawal by an employer-member of an associa-
tion Metke Ford Motors, Inc , 137 NLRB 950
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner: Upon a
charge filed by the above-named Union on Februa-
ry 10, 1967, a complaint, dated July 5, 1967, was
duly issued alleging that the Respondent has en-
gaged in and is engaging in unfair labor practices
proscribed by Section 8(a)(1) and (5) of the Act.
Respondent's answer to the complaint generally de-
nies that it has engaged in the alleged unfair labor
practices. A hearing in this proceeding was held in
Cincinnati, Ohio, on November 21, 1967.
Thereafter, briefs were filed on behalf of the Charg-
ing Party and the Respondent which have been
carefully considered.
Upon the entire record in the case and from my
observation of the witnesses and their demeanor, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
At all material times, Robert Becker, the Respon-
dent herein, has operated a cafe under the name of
Lenox Grill in Cincinnati, Ohio. It is contended that
the Board has jurisdiction over the business activi-
ties of the Respondent by reason of his alleged
membership in the Master Labor Contract Section
of the Buckeye Tavern Association (herein referred
to as the "Association"), which is a voluntary,
unincorporated association of employers engaged,
in and about greater Cincinnati, Ohio, in the opera-
tion of cafes, taverns, and restaurants. The em-
ployer-members of the Association have authorized
it to act as their bargaining agent and to conduct
170 NLRB No. 120
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining negotiations on. a multiem-
ployer basis with the Union. The Association for-
mulates and administers a common labor policy for
its members and its members constitute a single
employer within the meaning of Section 2(2) of the
Act. During the past 12 months, which period is
representative of the operations of the Association
and its members, the combined gross volume of
retail sales of the employer-members of the As-
sociation was in excess of $500,000. During the
same period, the members of the Association, in
the normal course of their business operations,
purchased food products and merchandise, valued
in excess of $50,000, from wholesale suppliers
located in the State of Ohio, who, in turn,
purchased and received such products and
merchandise directly from points located outside
the State of Ohio. It was stipulated by the parties,
and I find, that the Association and its members are
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The single issue in this case is whether the
Respondent had timely withdrawn as a member of
the Association and as a member of the multiem-
ployer bargaining group represented by the As-
sociation.
Since 1959 the Union has been the collective-
bargaining representative of the employees in the
following unit:
All employees of the employer-members of the
Association engaged in food, culinary or
beverage service, including all bartenders,
chefs, cooks, assistant cooks, short order cooks
and their helpers, meat carvers, steam table,
griddle, block and counter men, head pantry
and pantry girls, bus boys and girls, waiters,
waitresses, hostesses, checkers, cashiers, and
miscellaneous workers, excluding all office
clerical and professional employees, guards
and supervisors as defined in the Act.
Since 1959 there has been a series of successive
collective-bargaining agreements between the As-
sociation and the Union. The most recent agree-
ment was entered into on November 29, 1966, ef-
fective for a 3-year period beginning as of
December 1, 1966. This contract superseded the
prior collective-bargaining agreement which was
entered into on January 29, 1964, covering the
period retroactively from December 1, 1963,
through November 30, 1966.
The language describing the parties to the con-
tracts is identical in both said agreements. In per-
tinent part, it reads:
THIS AGREEMENT entered into as of ... ; by
and between the Master Labor Contract Sec-
tion, Buckeye Tavern Association, hereinafter
referred to as "Association" for and on behalf
of the members thereof who have duly ex-
ecuted powers of attorney ...
The 1963 and the 1966 contracts were signed on
behalf of the Association by Karl Zimmermann,
chairman of the Association, and Albert A. Rogoff,
attorney. None of the employer-members signed
the contracts or counterparts thereof and the
names of the employers covered by the agreements
are nowhere listed in the instruments.
Respondent, Robert Becker, was a member of
the Association in 1959 and continued his member-
ship therein at least until 1964. By virtue of such
membership he was bound by the terms of the suc-
cessive collective-bargaining agreements entered
into by the Association and the Union between
1959 and 1964.
Shortly after the contract which became effective
on December 1, 1963, had been ratified by the em-
ployer-members of the Association, Becker in-
formed Clay W. Hawthorne, an official of the
Union, that he did not like the contract and in-
tended to withdraw from the Association. Becker
refused to recognize the 1963 agreement and unfair
labor practice charges were filed against him by the
Union. The proceedings thereby initiated were
disposed of by a settlement pursuant to which the
Respondent agreed to abide by the terms of the
1963 agreement and to post a notice to such effect
in his place of business.'
About August 23, 1966, Karl Zimmermann,
chairman of the Association, sent the following
notice to each member, including Becker:
The Master Labor Contract Section of the
Buckeye Tavern Association, will be open for
negotiations with the Union in the very near
Becker's explanation as to what had occurred is as follows
When the hearings were held at the National Labor Relations Board, I
found that I had erred in judgment in thinking that I could withdraw at
that time , and it was cited that in the terms of the Articles of our con-
stitution I had to give a notice, in writing to representatives of the
Master Labor Section, which I had not done and because of this,
because I hadn't given notice in writing to the Master Labor Section's
representatives I was bound to the contract
Becker's references are to the following provisions of article VII of the
constitution, regulations and bylaws of the Association
F 2 The participation of any participating member of this Section
may be ceased and his agency revoked for good cause including
* * * * *
b resigning by having given thirty days written notice,
10 It is the procedure of this Section that when the Master Con-
tract Committee has executed a labor contract under these provisions
it shall be deemed effective and binding on each participating member
unless such member presents a written notice of objection to ratifica-
tion within seven (7) days of the execution of such contract In this
event the contract shall not be deemed effective and binding on such
notifying member
LENOX GRILL 1029
future. Your contract expires at that time,
therefore, it is necessary to sign a new con-
tract, giving us authorization to negotiate for
you. Enclosed you will find the applications
along with self addressed envelope. Please sign
the authorizations, keeping one copy for your-
self and send the other two to the office, as
soon as possible, as the Union requests a list of
our members.
A meeting will be called immediately after we
receive the Union's proposal.
Within a week the Respondent mailed the following
reply to the Association:
Dear Karl,
Some time ago I notified our office that I no
longer wanted to participate in the Master
Labor Contract nor the negotiations. If that
notification has been lost, strayed, or stolen
then let this note verify my intention.
withdrawal nor concurrence therewith. Sub-
seq,,ently, on December 6, 1966, Jerry F. Venn, at-
torney for the Union, wrote to the Respondent ad-
vising him that the Union does not recognize "his
attempted withdrawal from the association" and
that he is bound by the terms of the Union's con-
tract with the Association.
The General Counsel' s position in this case is
that the Union was not given timely notice of
Respondent's withdrawal from the Association and
therefore he is bound by the terms of the 1966
agreement . The lead case dealing with withdrawals
from multiemployer units is Retail Associates, Inc.,
120 NLRB 388, 395, wherein the Board sets forth
the following guides:
We would accordingly refuse to permit the
withdrawal of an employer or a union from a
duly established multiemployer bargaining
unit , except upon adequate written notice
given prior to the date set by the contract for
modification, or to the agreed-upon date to
begin the multiemployer negotiations. Where
Yours truly actual bargaining negotiations based on the ex-
J. Robert Decker
Neither Becker nor the Association informed the
Union of Becker's withdrawal from the Association
until November 29, 1966, when the first and only
bargaining session was held.
On September 26, 1966, the Union, by its Pre-
sident Harry A. Stiers, wrote Albert A. Rogoff, at-
torney for the Association, advising that the Union
desired to reopen the contract for negotiations.' In
October 1966, Stiers accidentally met Rogoff in the
street at which time there was a brief conversation
about the forthcoming negotiations. Rogoff stated
that he anticipated no problem if a contract were to
be negotiated similar to the recently concluded
agreement between the Union and another associa-
tion. Stiers replied that he should submit such
proposal at their bargaining meeting and the Union
would consider it.
At the meeting which took place on November
29, 1966, the Association and the Union reached
agreement upon a contract for a term of 3 years
beginning as of December 1, 1966. Before any
other matters were discussed at the meeting, Zim-
mermann, whom I find gave the most credible ac-
count of what transpired, informed the union
representatives that the Respondent had withdrawn
from the Association.' The union representatives
voiced neither objection to Respondent's
2 According to its terms the 1963 contract was effective until November
30, 1966, "and from year to year thereafter unless either party gives writ-
ten notice to the other not less then sixty (60) days prior to the expiration
thereof, or annual renewals thereof of its intention to modify said Agree-
ment "
' The summary of the events herein set forth reflect my findings after
having given consideration to all the evidence adduced at the hearing, both
testimonial and documentary The findings reflect my resolutions of the
conflicts and inconsistencies in the evidence I have omitted from the sum-
mary of events certain evidence which, while not irrelevant, I do not con-
isting mu tiemployer unit have begun, we
would not permit, except on mutual consent,
an abandonment of the unit upon which each
side has committed itself to the other, absent
unusual circumstances.
However, "[n]either the Board nor .. court has
attempted to define the limits of the `unusual cir-
cumstances' exception . . . " N.L.R.B. v. Spun-Jee
Corporation, et ano., 385 F.2d 379. The Board's ex-
planation (120 NLRB at 393) for the adoption of
these guides is that "the stability requirement of the
Act dictates that reasonable controls limit the
parties as to the time and manner that withdrawal
will be permitted from an established multiem-
ployer bargaining unit. ... The decision to
withdraw must contemplate a sincere abandon-
ment, with relative permanency, of the multiem-
ployer unit and the embracement of a different
course of bargaining on an individual-employer ba-
sis. The element of good faith is a necessary
requirement in any such decision to withdraw,
because of the unstabilizing and disrupting effect
on multiemployer collective bargaining which
would result if such withdrawal were permitted to
be lightly made. The attempted withdrawal cannot
be accepted as unequivocal and in good faith where
... it is obviously employed only as a measure of
momentary expedience, or strategy in bargaining,
and to avoid a Board election to test the union
seder necessary to the explication of my decision The fact that I have not in
this decision summarized such evidence does not mean that I have over-
looked, or have failed to give consideration or "weight" to such evidence
To set forth in detail all the testimony which was adduced at the hearing, to
catalogue my resolution of every conflict in testimony, and to include an
analysis of each document received in evidence would unduly encumber
this decision without, in my opinion, providing sufficient compensating
benefit to the parties in understanding the principal factual and legal bases
for my conclusions See Walker's, 159 NLRB 1159, 1161
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority." Thus, the purpose of the rule is "to as-
sure that [withdrawal] is not used as a bargaining
lever." N.L.R.B. v. Sheridan Creations, Inc., 357
F.2d 245, 248 (C.A. 2).
In this case, I find that Respondent's effort to
withdraw from the Association and the multiem-
ployer bargaining unit was unequivocal and in good
faith and was not used as a measure of momentary
expedience, or strategy in bargaining, or to avoid a
Board election to test the Union's majority.
Furthermore, it was timely made. Becker's failure
to serve written notice upon the Union, although
such notice was timely served upon the Associa-
tion,' was the single deficiency in his compliance
with the guides set forth in the Retail Associates
case. Moreover, in early 1964, the Respondent
made a prior attempt to withdraw from the As-
sociation and the multiemployer bargaining unit.
This was forcefully brought to the Union's atten-
tion. Because it then was untimely made, Respon-
dent was compelled, after resort to the Board's
processes, to adhere to the terms of the 1963 agree-
ment. Thus, long before the expiration of the 1963
contract the Union had notice of Respondent's
desire to withdraw froiti the multiemployer bargain-
ing unit, although there was no reiteration to the
Union of such intention on the part of Becker until
November 29, 1966.
In the light of the foregoing, and the absence of
evidence that Becker at any time had been in-
formed that he was required to give to the Union,
as well as to the Association, written notice of his
intention to withdraw from the multiemployer bar-
gaining unit and the absence of evidence that
Becker has engaged in any other conduct
proscribed by the Act, I find that the circumstances
here are sufficiently "unusual" to provide an excep-
tion to the application of the guides of the Retail
Associates case. Accordingly, I find that the
Respondent was not a member of the Association
as of the effective date of the current collective-
bargaining agreement between the Association and
the Union and, therefore, is not bound by the terms
of said agreement.
CONCLUSIONS OF LAW
Respondent has not violated Section 8(a)(1) and
(5) of the Act as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in this case, I recommend that the complaint in this
case be dismissed in its entirety.
' An employer who wishes to become part of the multiemployer unit
represented by the Association has no direct dealings with the Union Such
employer will sign an authorization and will deliver the authorization to the
Association The Association, in turn, forwards the authorization to the
Union for approval