Love's Barbeque Restaurant No. 62

National Labor Relations Board - Board Decisions

Sep 20, 1979

245 N.L.R.B. 78 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Karl Kallmann d/b/a Love's Barbeque Restaurant No.
62; Love's Enterprises, Inc. and Hotel, Motel &
Restaurant Employees & Bartenders Union Local
50, Hotel, Motel & Restaurant Employees & Bar-
tenders International Union. Cases 32-CA-522 and
32-CA-574
September 20, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELIO
AND MURPHY
On January 25, 1979, Administrative Law Judge
William J. Pannier III issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Party filed exceptions and supporting
briefs, Respondent Karl Kallmann d/b/a Love's Bar-
beque Restaurant No. 62 (hereinafter called Respon-
dent Kallmann) filed cross-exceptions and a support-
ing brief. Respondent Love's Enterprises (hereinafter
called Respondent Love's) filed a cross-exception and
a supporting brief,' and Respondent's Love's and
Kallmann filed an answering brief to the exceptions
and briefs in support of exceptions filed by the Gen-
eral Counsel and the Charging Party.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order with respect to Re-
spondent Love's, but only to the extent consistent
herewith with respect to Respondent Kallmann.
I Respondent Love's excepts to the failure of the Administrative Law
Judge to find that its franchisees are required to follow section "L" of its
operations manual. We find merit in this exception. Respondent Love's vice
president, Mesker, testified that Love's franchisees are requested to follow
section "L" of the manual which prescribes, inter aula, how the meal is to be
placed on the plate, how it is to be presented, and what portions of products
are to be used on the plate served to the customer.
2 Respondent Love's and Kallmann move to strike a portion of the Charg-
ing Party's brief on the ground that it sets forth facts not contained in the
record developed before the Administrative Law Judge. We have not consid-
ered or relied on this section of the Charging Party's brief because it contains
facts dehors the record. Accordingly, we find it unnecessary to pass on Re-
spondents' motion.
IThe General Counsel and the Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the rel-
evant evidence convinces us that the resolutions are incorrect. Standard Dr'
Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing his
findings.
The Administrative Law Judge found that none of
the employees hired by Kallman had ever been em-
ployed at the Hayward restaurant, and that there was
no showing that a majority of these employees de-
sired representation by the Union. He further found
that a preponderance of the evidence does not sup-
port the allegation that Respondent Kallman refused
to hire former employees of the Hayward restaurant
because of their affiliation with the Union. The Ad-
ministrative Law Judge concluded that Respondent
Kallman was not, therefore, a successor to Respon-
dent Love's. The General Counsel contends that the
Administrative Law Judge's own findings and credi-
bility resolutions require the conclusion that Kallman
possessed union animus and refused to hire Love's
former employees because of considerations unlawful
under Section 8(a)(3)of the Act. He further contends
that Respondent Kallman is a successor to Respon-
dent Love's and therefore violated Section 8(a)(5) of
the Act by refusing to bargain with the Union and by
changing the rates of pay and benefits without prior
notification to or consultation with the Union. We
find merit in the General Counsel's contentions.
The following facts are not in dispute. In Decem-
ber 1973, Respondent Love's took over the operation
of the Hayward. California, restaurant from a fran-
chisee, not a party to this proceeding. During the pe-
riod in 1973 when the restaurant was operated by the
franchisee, a memorandum agreement was executed
with Culinary Workers and Bartenders Union, Local
823 of the Hotel and Restaurant Employees and Bar-
tenders International Union, AFL CIO (hereinafter
called Local 823), the predecessor of the Charging
Party herein. Under the terms of the memorandum
agreement, the franchisee agreed to recognize Local
823 as the sole collective-bargaining representative
for all of its employees coming under the Union's
charter. Thus. the unit consisted of all employees at
the Hayward restaurant engaged in the preparation,
handling, and serving of food and/or beverages, ex-
cluding office clerical employees, guards, and supervi-
sors as defined in the Act. The agreement further pro-
vided that: "The Employer agrees to accept, adopt
and observe all of the wages, hours and other terms
and conditions of employment contained in the Col-
lective Bargaining Agreement between the Union and
the East Bay Restaurant Association, Inc., California
Licensed Beverage Association, Inc., or its successors
.... as well as "the Restaurant and Tavern Health
Fund Trust Agreement, the Southern Alameda
County Restaurant and Tavern Pension Trust Agree-
ment, the health and pensions plans established there-
under, and all amendments to said Trust Agreements
and plans." When Respondent Love's took over the
245 NLRB No. 17
78
LOVE'S BARBEQUE RESTAURANT NO. 62
restaurant in December 1973, it continued to apply
the memorandum agreement.4
On September 26, 1977,5 Respondent's Love's
closed its Hayward restaurant and terminated all of
the employees who had been working there. On Octo-
ber 20, Respondent Kallmann opened the restaurant
for business under a franchise agreement, equipment
lease, and real property sublease with Respondent
Love's. Respondent Kallmann then operated the res-
taurant, as Respondent Love's had done, using the
same equipment to produce identical products for the
same customer market from the same location. Re-
spondent Kallmann, however, did not hire any of the
employees who had been employed by Respondent
Love's. Nor did it recognize the Union or apply the
memorandum agreement. Instead, it began nonunion
operations with an entirely new complement of ap-
proximately 30 employees. On October 21, the Union
commenced picketing the restaurant to protest Re-
spondent Kallmann's failure to reemploy any of the
former employees and its failure to recognize the
Union as the collective-bargaining representative.
On the basis of the foregoing, there is no question
that all the factors for finding successorship are pre-
sent but for the failure to retain the former employees
of the restaurant.6 Further, it is well settled that suc-
cessorship will be found in such circumstances if the
new owner fails to hire the predecessor's employees
because of their affiliation with the Union.7 Thus, the
central question herein is whether Respondent Kall-
mann refused to hire the former employees of Love's
Hayward restaurant (hereinafter, the former Hay-
ward employees) for antiunion reasons. We find that
this question must be answered in the affirmative.
The record reveals that after entering into the fran-
chise agreement with Respondent Love's, Karl Kall-
mann reserved two rooms at the Vagabond Motel,
located near the Hayward Restaurant, to be used for
interviewing job applicants. He placed advertise-
ments in the Oakland Tribune (Tribune) and the
Hayward Daily Review (Review) which stated that a
new restaurant was hiring and that applications
should be made in person at the Vagabond Motel.
The name of the restaurant did not appear in the
advertisement. Kallmann testified that he conducted
interviews at the motel for 2-1/2 days, starting on
October 12, and subsequently completed the inter-
' In 1975. by virtue of a merger of three unions. Hotel. Motel and Restau-
rant Employees and Bartenders Union Local 50, Hotel. Motel & Restaurant
Employees & Bartenders International Union, the Charging Party herein.
succeeded Local 823 and became the Hayward employees' collective-bar-
gaining representatives.
All dates occurred in 1977 unless otherwise indicated.
'N.LR.B. v. Burns International Securit Senrue, 406 U.S. 272 (1972).
'Potter's Drug Enterprises, Inc d/hbl/a Potter's Chalet Drug and Potter's
Westpark Drug, 233 NLRB 15 (1977).
viewing of applicants in the restaurant. After October
14, the advertisements in the Tribune and the Review
substituted the name and address of "Love's Barbe-
que Restaurant" for the name and address of the mo-
tel.
The Administrative Law Judge did not credit Kall-
mann's testimony regarding the manner in which em-
ployees were hired. He found that, while Kallmann
testified that he was the only official to have inter-
viewed applicants, Kallmann's assistant manager,
Stebban, controverted this testimony by stating that
he also had interviewed applicants. He further found
that Kallmann's pretrial affidavit stating his reasons
for not hiring two former Hayward employees, Wads-
worth and Logan, was inconsistent with his testimony
at the hearing concerning these employees.8
Further, the Administrative Law Judge observed
that normally, when an employer advances a false
reason for its actions, it is permissible to infer that the
actions are taken for an unlawful reason. He never-
theless refused to draw this inference from his having
discredited Kallmann's testimony. Instead, the Ad-
ministrative Law Judge found that several circum-
stances exist which refute a conclusion of illegal mo-
tive. An examination of these circumstances reveals
no basis for the Administrative Law Judge's finding.
With respect to the question of Respondent Kall-
mann's union animus. the Administrative Law Judge
found that Kallmann believed that the choice as to
whether or not the restaurant would be unionized was
his to make, and that Kallmann made remarks to the
effect that he had a choice as to whether or not to be
unionized and that he had chosen to operate non-
union. The Administrative Law Judge also found that
a similar remark by Kallmann to a picketing em-
ployee violated Section 8(a)( I) of the Act. Thus, Kall-
mann asked former Hayward employee Pingree why
she did not put down her picket sign, that she could
be rehired at her previous rate of pay, but that the
restaurant would be nonunion. Finally, the Adminis-
trative Law Judge found that Respondent Kallmann
violated Section 8(a)(1) of the Act by Assistant Man-
ager Sebban's unexplained act of photographing em-
ployees Logan and Wadsworth immediately after
they had finished picketing the restaurant.
In spite of these findings, the Administrative Law
Judge concluded that Respondent Kallmann did not
unlawfully refuse to hire former Hayward employees.
He reasoned that Kallmann had no need to avoid the
union sympathies of the former Hayward emploees
becauase Kallmann truly believed that the choice re-
' Thus, in his affidavit Kallmann asserted that he did not hire Wadsworth
and Logan because they were not available for the daN shift due to their
school schedule, whereas, at the hearing. Kallmann testified that the nls
reason he did not hire the two employees was because of the absence of
openings and not because of conflicts with their schtxl schedules.
79
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
garding unionization was his alone to make and that
the employees' desires did not enter into it. This is
one of the "objective considerations" which, the Ad-
ministrative Law Judge asserted, refutes a conclusion
of illegal motive. We disagree. Kallmann's conceded
intention not to allow the employees to be unionized
itself supports a conclusion of illegal motive. How-
ever, Kallmann's intention, far from being held
merely as an opinion, was expressed in action by his
unlawful statement to employee Pingree. Further, Re-
spondent Kallmann engaged in the unlawful act of
photographing employees after they left the picket
line. It is inconceivable that an employer whose anti-
union attitude led to these unlawful acts would have
no interest in the union sympathies of job applicants.
To the contrary, the foregoing facts fully support the
conclusion that Respondent Kallmann was very
much concerned with the union affiliation of the for-
mer Hayward employees and did not hire them be-
cause of it.
Similarly, we find, contrary to the Administrative
Law Judge, that Kallmann's method of hiring indi-
cated a desire to avoid hiring former Hayward em-
ployees. As noted above, the initial newspaper adver-
tisements made no mention of the name of the
restaurant, and the initial 2-1/2 days of interviewing
was done at a motel rather than at the restaurant.
Although the Administrative Law Judge acknowl-
edged that Respondent Kallmann offered no explana-
tion for this procedure, he found there was nothing to
support the General Counsel's contention that Kall-
mann use the procedure in order to conceal the fact
that interviews were being conducted. In support of
this finding, the Administrative Law Judge observed
that not all positions had been filled when the place of
interviewing was changed from the motel to the res-
taurant, and that Kallmann had used the format of
Respondent Love's for the newspaper advertisements.
He reasoned that had Respondent Kallmann been at-
tempting to conceal the fact that he was interviewing,
he would not have used the easily recognizable for-
mat of Respondent ove's for the advertisements and
he would have continued to interview at the motel
room until all the positions were filled.
The General Counsel argues that it was unneces-
sary for Kallmann to incur the added expense of rent-
ing the motel room until all positions were filled be-
cause II of the initial complement of 28 hires had
applications dated October 12 or 13 and were, there-
fore, interviewed at the motel; another 7 had applica-
tions dated October 14, some of whom, therefore,
must have been interviewed during the last half-day
at the motel; and only one former Hayward em-
ployee, Porter, applied at the motel. In these circum-
stances, the General Counsel argues, Kallmann had
filled the majority of positions with new employees
and had nothing to fear from completing his hiring in
the restaurant. In addition, the General Counsel
points out that Respondent Love's newspaper adver-
tising was done in 1972 and it is therefore improbable
that in 1977 former Hayward employees would have
recognized the 1972 format. We agree with the Gen-
eral Counsel. We find the Administrative Law
Judge's explanation of the hiring procedure to be en-
tirely speculative and implausible. Indeed, Kall-
mann's failure to explain his unusual hiring proce-
dure, coupled with his lack of candor regarding the
interviewing process, his demonstrated union animus,
and his handling of the applications of Wadsworth,
Logan, and Porter as discussed below warrant the in-
ference that the hiring procedure was designed to
conceal from the former Hayward employees the fact
that Kallmann was hiring. We so find.
The Administrative Law Judge's reasoning with re-
spect to Kallmann's "offers" to former employees is
also implausible and unsupported by the record. The
Administrative Law Judge found that Respondent
Kallmann offered a job to former Hayward employee
Pingree when he told her that she could be rehired at
her previous rate of pay, but that the restaurant
would not be union. He further found that Kallmann
offered positions to former Hayward employee Wads-
worth and "probably" to Logan. The Administrative
Law Judge concluded that these offers of employment
militate against a finding that Respondent Kallmann
did not hire former Hayward employees because of
their union sympathies. We disagree.
As the General Counsel correctly points out, Kall-
mann's offer to Pingree constituted a violation of the
Act; thus, to accept the Administrative Law Judge's
reasoning concerning the offer to her would be to find
that an unlawful offer of employment negates an un-
lawful motive in hiring. Such reasoning is clearly in-
valid and we reject it.
The Administrative Law Judge's reasoning in find-
ing that Kallmann offered employment to Wads-
worth and Logan is also faulty. Wadsworth testified
that he applied for the position of cook and was inter-
viewed by Kallmann at the Hayward restaurant.
When asked whether Kallmann offered him a job,
Wadsworth stated: "No, he didn't-well, they offered
me a busboy position and I said that I felt-that I
had worked my way up in seniority because I was
working there before and I told him I would not be
interested in the busboy position." When asked
whether Kallmann offered him the position or stated
that the position was open, Wadsworth testified, "He
stated that it is a possibility, he didn't actually offer it
to me." Logan also testified that he applied for the
position of cook and was interviewed by Kallmann at
the restaurant. He stated that, after Kallmann looked
80
LOVE'S BARBEQL.:E RESIAURANI NO. 62
at his application, Kallmann told him that there were
no positions open except possibly for a dishwasher
job. Logan further stated that he told Kallmann that
he would take the position and that Kallmann "re-
plied again, that all the positions were taken at the
time and that there was that one dishwashing job and
that he was pretty certain that that was taken also."
Kallmann made no further contact with Logan re-
garding a position at the restaurant.
On the basis of the foregoing testimony, the Ad-
ministrative Law Judge concluded that Kallmann of-
fered a position of busboy to Wadsworth and "prob-
ably" also to Logan. As indicated, the record does not
support this conclusion. There is nothing to show that
Logan received anything more than the expression of
a possible offer that Kallman never acted upon. Simi-
larly, there is some question as to whether Kadsworth
actually received an offer from Kallmann. While
Wadsworth stated that Kallmann offered the position
of busboy to him, he qualified this statement by add-
ing that Kallmann told him there was a "possibility"
that a busboy position was open and that he did not
actually offer the position to Wadsworth.
Thus, the testimony relied on by the Administra-
tive Law Judge indicates that in Logan's case no offer
was made and in Wadsworth's case, the testimony is
insufficient to establish that an offer was in fact made.
Further, Kallmann himself did not testify that he
made an offer to either Logan or Wadsworth. Instead.
at the hearing Kallmann stated that he did not hire
these employees because there were no openings at
the time they applied, whereas in his pretrial affidavit
he stated that he did not hire them because they were
not available for the day shift due to their school
schedule.' In these circumstances, we find no support
for the Administrative Law Judge's conclusion that
Kallmann offered positions to Logan and Wads-
worth. A Jortiori, we find that the Administrative Law
Judge's reliance on the testimony of Logan and
Wadsworth in determining that Respondent Kall-
mann was not averse to hiring former Hayward em-
ployees is equally without support.
Finally, we are not persuaded by the Administra-
tive Law Judge's conclusion that Respondent Kall-
mann had a valid business reason for not hiring the
former Hayward employees. The Administrative Law
Judge credited Kallmann's testimony that, while ini-
tially he had been impressed with former Hayward
employee Porter's application, he ultimately decided
'The Administrative Law Judge attempted to explain the inconsistenc in
Kallmann's testimony as being the result of a desire to enhance Respondent
Kallmann's defense. We may assume that is so, hut that objective in no '.a,
improves the Respondent's position or the impact of the inconsistency Re-
gardless of the Administrative Law Judge's attempt to provide an unfounded
explanation for Kallmann's inconsistent testimony. the act is hat he dis-
credited Kallmann's asserted reasons for not hiring I.ogan and Wadsworth.
not to hire Porter because of the unclean condition of
the kitchen after Respondent l.ove's closing, coupled
with Porter's position as heard cook prior to the clos-
ing. ie therefore concluded that Respondent Kall-
mann's true reason for avoiding hiring former HaN;-
ward employees was the uncleanliness of the
restaurant. He did so in spite of his own finding that
Kallmann did not oer the uncleanliness (of the res-
taulrant as a defense, but ather attemlpted to con-
struct a ditlerent defense to ensure that he wonuld nlot
be fund to have violated the Act. Ihc Administra-
tive Law Judge excused Kallniann's tilse and tailored
testimony on the grounds that KIallmann so testified
because he was oung. not well versed in labor rela-
tions matters, and had undertaken significant finan-
ci;lal ohligatioins which ould be magnifiedt in the
event Respondent Kallman were ftuntd to have vio-
lated the Act. We cannot agree ith the Administra-
tive Law Judge's reasoning in this matter. However
difficult Kallmann's position ma's have been, we find
that it does not warrant the speculation engaged in hb
the Administrative Law Judge or an inference that
Kallmann's reasons for not hiring the rmner Hay-
ward employees were based on lawful considerations.
To the contrar., as we have lutld aboxe. Kallmann's
untruthful testitons gives rise to the ittrence that
he was attempting thereb 3 to mask the real reason for
his failure to hire Love's former Hayward employees;
namely, their union affiliation.
In view of the foregoing. we ind that Respondent
Kallhnann expressed an intention not to have the
union in his restaurant: unlawfssulls photographed em-
plovees: conducted his initial job interviews under
conditions which virtuallv etnsur-ed that the former
Hayward employees would not know of the inter-
views; gave inconsistent testimony regarding his rea-
sons for not hiring t)rmer ayward employees and
gave false, tailored testimony regarding his hiring
practices. In the absence of credible testimony and
competent evidence to the contrary. these circum-
stances compel the conclusion that Respondent Kall-
mann avoided hiring former HalNward employees be-
cause of their affiliation with the Union.
Consequently, we find that Respondent Kallmann
violated Section 8(a)(3) of the Act hby refusing to hire
the former Hayward employees of l.ove'."' Further.
" In light of the tact that K allmainni appears to hair hired nlsl ot the nles
complement of emploeers during the irst I - 2 da.s iI ner e.ling con-
ducted at the Vagabond Molel on the hlasts ol .idertlleineit , hlich did tIot
state the name of the reslaurant. it i hardls surprising that oin seen o Ithe
forrier lHavward emplo ees f t .sc' .Ippliedl I',r p sitlls nv ith Responldent
Kallmann he Bard has hong held hait 'oiCle ;in eniplocr malkes kiosn
to pi'rospect e emplo, ees his retusal I to hie he hire m bc use their prior itllion
affiliation. their ta lure wt undertake the useless aclis t itmk ta rmll a.ppil-
c;ltlion tir a,,rk Is n defetnse i.t Sit8i)( .,iell.ii n l t l ll. l .iltd, BI-A and
5upplA, , hIi 223t RB 1 87 I'?'I. 1I h'Sit, l t.iin, i Xiri,~ rdltionl n ii17
',nomll"i'Jh
81
DI)('ISIONS OF NATIONAL. IABOR RELATIONS BOARD
these employees were represented by the Union in an
appropriate unit." It is, therefore, apparent that hut
for Respondent Kallmann's unlawful conduct, the
Union's status as the exclusive collective-bargaining
representative would have survived Respondent Kall-
mann's takeover of the Hayward restaurant. This, to-
gether with Respondent Kallmann's continued opera-
tion of the restaurant at the same location and in
substantially the same manner as before, compels us
also to find that Respondent Kallmann is a legal suc-
cessor of Respondent Love's with respect to Respon-
dent Love's bargaining obligation to the Union. We
therefore conclude that Respondent Kallmann vio-
lated Section 8(a)(5) and (1) of the Act by disavowing
Respondent Love's obligation to the Union.
In addition, we find that Respondent Kallmann
violated Section 8(a)(5) by unilaterally reducing rates
of pay and eliminating benefits of employees pro-
vided in the collective-bargaining agreement observed
by Respondent Love's without prior notice to or con-
sultation with the Union. In so finding, we recognize
that a successor employer is ordinarily free to set ini-
tial terms on which it will hire the predecessor's em-
ployees.' 2 However, as the Supreme Court observed
in Burns.3
[T]here will be instances in which it is perfectly
clear that the new employer plans to retain all of
the employees in the unit and in which it will be
appropriate to have him initially consult with the
employees' bargaining representative before he
fixes terms.
Here, any uncertainty as to what Respondent would
have done absent its unlawful purpose must be re-
solved against Respondent, since it cannot be permit-
ted to benefit from its unlawful conduct.' 4 In these
circumstances, we find that Respondent Kallmann
would have retained all of the employees had it not
decided to avoid hiring them because of their union
activity. Therefore, it was not entitled to set initial
terms of employment without first consulting the
Union.
NLRB 933 (1967); Wayne R. Sherwood dh/ua Grounds Service, 180 NLRB
1040 (1970). The same reasoning applies here, where an employer has at-
tempted to conceal from employees the fact that it is accepting applications
for employment. In such circumstances, employees cannot be faulted for
failing to apply and those who discovered that the employer was hiring
would be justified in assuming the futility of applying for a position
' The appropriate unit is:
All employees employed at Love's Barbeque Restaurant at 24123 lies-
parian Blvd., Hayward, California, engaged in the preparation, han-
dling and serving of food and/or beverages, excluding office employees,
guards, and supervisors as defined in the Act.
12 NL.R. B. v. Burns Internarional Security Services, supra, 406 U.S. at 294
295.
1' Id.
14 Potter's Drug Enlerprises, Inc.. supra
TIlE REMEDY
Having found that Respondent Kallmann discrim-
inatorily refused to offer employment to the former
employees of Respondent Love's, we shall order that
their employment status to restored to what if would
have been but for the discrimination against them,
and that Respondent Kallmann offer them immediate
and full reinstatement to their former jobs, or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges previously enjoyed, discharging,
if necessary employees hired from sources other than
Love's Enterprises, Inc., Hayward, California, restau-
rant to make room for them, and make them whole
tor any loss of earnings that they may have suffered
due to the discrimination practiced against them, as
prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), with interest thereon to be computed in
the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977). t
Further, we shall order that Respondent Kallmann
bargain with the Union, upon request, concerning
any terms and conditions of employment on which it
would have been required to bargain had the Union's
lawful status been acknowledged on October 20,
1977-the date Respondent Kallmann opened the
Hayward restaurant for business. In addition, we
shall order the Respondent Kallmann cancel, upon
request by the Union, changes in rates of pay and
benefits unilaterally effectuated and make the em-
ployees whole by remitting all wages and benefits that
would have been paid absent Respondent Kallmann's
unlawful conduct as found herein from October 20,
1977, until Respondent Kallmann negotiates in good
faith with the Union to agreement or to impasse.16
CONC(I.USIONS OF LAW
I. Respondent Kallmann and Respondent Love's
are separate employers within the meaning of Section
2(2) of the Act, each of whom is engaged in com-
merce and in operations affecting commerce within
meaning of Section 2(6) and (7) of the Act.
2. Hotel, Motel & Restaurant Employees & Bar-
tenders Union Local 50, Hotel, Motel & Restaurant
Employees & Bartenders International Union, is a la-
bor organization within the meaning of Section 2(5)
of the Act.
s See, generally. Isos Plumbing & I/earing Co. 138 NI.RB 716 (1962).
Backpay is to be based on either rate structure prevailing under Love's En-
terprises, Inc., Hayward. California. restaurant or the new rate structure
established by Respondent Kallmann, whichever results in the higher hack-
pay to the individual employees.
" The remission of wages is to be applied consistently with the make-
whole remedy set forth above with respect to the discriminatees.
LOVE'S BARBEQUE RESTAURANT NO. 62
3. All employees employed at Love's Barbeque
Restaurant at 24123 Hesparian Blvd., Hayward Cali-
fornia, engaged in the preparation, handling, and
serving of food and/or beverages, excluding office
employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times material herein the Union has been
the exclusive representative of all the employees in
the above unit for the purposes of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By telling employees that it did not intend to
operate a unionized restaurant and by taking pictures
of employees who had been engaging in picketing or
other protected activities, without a valid reason, Re-
spondent Kallmann has violated Section 8(a)(1) of
the Act.
6. By failing to hire the employees named in para-
graph 2(b) of the Order herein because of their union
affiliation, Respondent Kallmann in each instance
violated Section 8(a)(3) and (I) of the Act.
7. Respondent Kallmann is a successor employer
to Respondent Love's and by disavowing its bargain-
ing obligation to the Union and by departing from
preexisting rates of pay and benefits without prior no-
tification to and consultation with the Union, Re-
spondent Kallmann violated Section 8(a)(5) and (I)of
the Act.
8. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
9. Respondent Kallmann has not violated the Act
in any other manner.
10. Respondent Love's has not violated the Act in
any manner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Karl
Kallmann, d/b/a Love's Barbeque Restaurant No.
62, its officers, agents, successors, and assigns. shall:
1. Cease and desist from:
(a) Telling employees that it will not be operating
a unionized restaurant and taking pictures of employ-
ees who have been engaging in picketing or other pro-
tected concerted activities.
(b) Refusing to hire or otherwise discriminating
against employees to avoid bargaining with a union.
(c) Refusing to recognize Hotel, Motel & Restau-
rant Employees & Bartenders Union Local 50, Hotel,
Motel & Restaurant Employees & Bartenders Inter-
national Union. as the exclusive collective-hargaining
representative of its employees in this appropriate
unit:
All employees employed at Love's Barbeque
Restaurant at 24123 Hesparian Blvd., Hayward,.
California, engaged in the preparation, handling.
and serving of food and/or beverages, excluding
office clerical employees, guards and supervisors
as defined in the Act.
(d) Making changes in the rates of pay and bene-
fits of the employees in the above unit without notice
to and consultation with said union.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the purposes of the Act:
(a) Destroy any pictures of Richard Logan and
David Wadsworth taken by Assistant Manager Da-
vid Sebban.
(b) Offer immediate and full reinstatement to D. L.
Marshall, A. L. Pingree, P. M. Phipps. P. M. Turner.
E. L. Goodwin, D. S. Barker, J. M. Evanoff, E. G.
Hayne, M. J. Shauver. M. Henshall, M. F. Chulata,
G. B. Ricketts, D. Wadsworth, S. S. Hervey. H. Baig-
mohammadi, M. A. Quinn, A. J. Botelho, D. A. Lo-
gan, R. G. Logan, K. R. Fuentes, K. A. Milina, J.
Boyd, M. J. Henshail. L. L. Macone. V. O. Thomas.
J. C. Casarotti, M. R. Rafferty. M. A. Gron, J. M.
Gutfeld, N. E. Hansen, K. C. Lawson, D. L. Loyra,
R. A. Bishop, C. Roy. B. K. Lewis. M. Silvera, R. R.
Smart, R. Holguin. J. S. Porter, M. E. Evaneski, to
their former jobs. or. if those jobs no longer exist, to
substantially equivalent positions without prejudice
to their seniority and other rights and privileges previ-
ously enjoyed, discharging, if necessary. employees
hired from sources other than Love's Enterprises.
Inc., Hayward, California, restaurant to make room
for them, and make them whole fr any loss of earn-
ings they may have suffered as a result of the dis-
crimination against them, in the manner set fbrth in
the section of this Decision entitled "The Remedy."
(c) Upon request, bargain with the above Union as
the exclusive representative of all the employees in
the above unit concerning their terms and conditions
of employment; and, if an understanding is reached,
embody it is a signed contract if asked to do so.
(d) Upon request of the above union, cancel any
changes from the rates of pay and benefits that ex-
isted immediately before its takeover of love's Enter-
prises, Inc., Hayward California. restaurant, and
make the employees whole by remitting all wages and
benefits that would have been paid absent such
changes from October 20. 1977. until it negotiates in
good fiith with the ltnion to agreement or to in-
83
I)t('ISIONS OF NA'IONAI IABOR RELATIONS BOARD
passe, in the manner set forth in the section of' this
Decision entitled "'l'he Remedy."
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports. and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(f) Post at its Hlayward. ('alitrnia. facility, copies
of the attached notice marked "Appendix."'7 Copies
of the notice, on tforms provided by the Regional Di-
rector for Region 32, after being duly signed by Re-
spondent Kallmann's authorized representative, shall
be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent Kall-
mann to insure that said notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order,
what steps Respondent Kallmann has taken to com-
ply herewith.
IT IS FURTHER ORI)ERED that in all other respects
the complaint be, and it hereby is, dismissed.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of' Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPENDIX
NoTI( CE To EMPI.OYEES
POSTED BY ORDER OF 'IHE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities ex-
cept to the extent that the employees' bargain-
ing representative and employer have a collec-
tive-bargaining agreement which imposes a
lawful requirement that employees become
union members,
In recognition of these rights, we hereby notify
our employees that:
Wi WILL NOT tell you that we intend to oper-
ate only a nonunion restaurant.
WL WI.l. NO'I take pictures of our employees
who have been engaging in picketing or in other
protected concerted activities.
WE WIL.. NOTI refuse to hire or otherwise dis-
criminate against employees to avoid bargaining
with a union.
Wi; WIL NorT refuse to recognize Hotel, Motel
& Restaurant Employees & Bartenders Union
Local 50, Hotel, Motel & Restaurant Employees
& Bartenders International Union, as the exclu-
sive collective-bargaining representative of its
employees in the following appropriate unit:
All employees employed at Love's Barbeque
Restaurant at 24123 Hesparian Blvd., Hay-
ward, California, engaged in the preparation,
handling, and serving of food and/or bever-
ages, excluding office clerical employees,
guards and supervisors as defined in the Act.
WE WIl.l NOT make changes in the rates of pay
and benefits of the employees in the above unit
without notice to and consultation with said
Union.
WF. WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights under the Act.
WE Wll. destroy any pictures of Richard Lo-
gan and David Wadsworth taken by Assistant
Manager David Sebban.
Wi: WItLL. offer immediate and full employ-
ment to D. L. Marshall, A. L. Pingree, P. M.
Phipps, P. M. Turner, E. L. Goodwin, D. S.
Barker, J. M. Evanoff, E. G. Hayne, M. J. Shau-
ver, M. Henshall, M. D. Chulata, G. B. Ricketts,
D. Wadsworth. S. S. Hervey, H. Baigmoham-
madi, M. A. Quinn, A. J. Botelho, D. A. Logan,
R. G. Logan, K. R. Fuentes, K. A. Milina, J.
Boyd, M. J. Henshail, L. L. Macone. V. O.
Thomas, J. C. Casarotti, M. E. Rafferty, M. A.
Gron, J. M. Gutfeld, N. E. Hansen K. C. Law-
son, D. L. Loya, R. A. Bishop, C. Roy, B. K.
Lewis, M. Silvera, R. R. Smart, R. Holquin, J. S.
Porter, M. E. Evaneski, without prejudice to
their seniority and other rights and privileges,
discharging if necessary employees hired from
sources other than Love's Enterprises, Inc., Hay-
ward, California, restaurant to make room for
them, and we will make them whole for any loss
of earnings they may have suffered by reason of
our unlawful failure to hire them.
WE Wvvi., upon request, bargain with the
above Union as the exclusive representative of'
all the employees in the above unit concerning
their terms and conditions of employment: and,
LOVE'S BARBEQUE RESTAURANT NO. 62
if an understanding is reached, embody it in a
signed contract if asked to do so.
WE WILL, upon request of the above Union,
cancel any changes from the rates of pay and
benefits that existed immediately before our
takeover of Love's Enterprises, Inc., Hayward,
California, restaurant, and make the employees
in the above unit whole by remitting all wages
and benefits that would have been paid absent
such changes from October 20, 1977, until we
negotiate in good faith with the Union to agree-
ment or to impasse.
KARL KALLMANN D/B/A LOVER'S BARBE-
QUE RESTAURANT NO. 62
Decision
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in Oakland, California, on
June 6-9, on July 10-13, and 21, 1978. On December 30.
1977,' the Regional Director for Region 32 issued an Order
consolidating cases, consolidated complaint, and notice of
hearing, based upon unfair labor practice charges filed on
November 7 in Case 32-CA-522 and on December 5 in
Case 32-CA-574, alleging violations of Section 8(a)(l), (3)
and (5) of the National Labor Relations Act, as amended,
29 U.S.C., §151, et seq., herein called the Act.2
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs. Based upon the entire record,'
upon the briefs filed on behalf of the parties, and upon my
observation of the demeanor of the witnesses. I make the
following:
1. FINDINGS OF FACT
A. Background and Issues
The instant matter involves the nature of the relationship
between Love's Enterprises, Inc., (herein called Respondent
Love's) and Karl Kallmann, d/b/a Love's Barbeque Res-
taurant No. 62 (herein called Respondent Kallmann) with
regard to the operation of a "Love's Wood Pit Barbeque
Restaurant" located at 24123 Hesparian Boulevard in Hay-
ward, California. At all times material, Respondent Love's,
a California corporation and a wholly-owned subsidiary of
I.H.O.P. Corporation, has been engaged in operating res-
taurants and lounges at various locations in the western
United States, primarily in California. Its principal place of
business has been located in Los Angeles, California. Since
at least October 20, Respondent Kallmann has been a sole
I Unless otherwise stated, all dates occurred in 1977.
2 A first amended charge in Case 32-CA-522 was filed on December 28
and a consolidated amended complaint was issued by the Regional Director
for Region 32 on March 10.
3Certain errors in the transcript have been noted and are hereby cor-
rected.
proprietor. existing by virtue of the laws of the State of
California, with its principal place of business at the Hespe-
rian Boulevard restaurant.
Since at least early 1973. Respondent Love's has leased
the Hesperian Boulevard property and structure, from a
lessor not a party to this proceeding. and has owned the
fixtures, signs, and equipment used there. At the time that
the restaurant was opened, in February 1973, it was oper-
ated by a franchisee, pursuant to a franchise agreement, a
real property sublease, and an equipment lease with Re-
spondent Love's. However, this arrangement ended in De-
cember 1973, and the Hesperian Boulevard restaurant was
operated thereafter, until its closure on September 26, by
Respondent Love's as a company-owned restaurant.
During the period in 1973 when the Hesperian Boulevard
restaurant was being operated by the franchisee, a memo-
randum agreement was executed with Culinary Workers
and Bartenders Union, Local 823 of the Hotel and Restau-
rant Employees and Bartenders International Union, AFL
CIO, herein called Local 823.4 Under the terms of the
memorandum agreement, "The Employer agrees to accept,
adopt and observe all of the wages, hours and other terms
and conditions of employment contained in the Collective
Bargaining Agreement between the Union and the East
Bay Restaurant Association, Inc., California Licensed Bev-
erage Association, Inc., or its successors, as the same may
be amended, renewed or extended from time to time during
the term of this Agreement," as well as "the Restaurant and
Tavern Health Fund Trust Agreement, the Southern Ala-
meda Country Restaurant and Tavern Pension Trust
Agreement, the health and pension plans established there-
under, and all amendments to said Trust Agreements and
plans." The termination of the franchise agreement, in De-
cember 1973, did not affect the continued application of the
memorandum agreement to the employees working at the
Hesperian Boulevard restaurant. Nor did the 1975 merger
which resulted in the substitution of the Union for Local
823 as the employees' bargaining representative.'
On September 26, Respondent Love's closed the Hay-
ward restaurant, terminating all of the employees who had
been working there. On the following day, Respondent
Kallmann executed a franchise agreement, equipment
lease, and real property sublease., Thereafter. Respondent
Kallmann did not offer employment to any of the employ-
ees who had been working at the Hayward restaurant. In-
stead, it sought applicants for employment through adver-
tisements in local newspapers and at local colleges, with the
result that when Respondent Kallmann opened the restau-
' Local 823 was a predecessor of Hotel, Motel & Restaurant Employees &
Bartenders Union Local 50, Hotel, Motel & Restaurant Employees & Bar-
tenders International Union, herein called the Union, which succeeded Lo-
cal 823 by virtue of a merger of three unions in July or August 1975. Since
that time, at least, the Union has been a labor organization within the mean-
ing of Sec. 2(5) of the Act.
The association agreement terminal date was August 6, 1978, with provi-
sion for reopening "on August 7. 1977 for wages only." However, the re-
opener was used as a vehicle for renegotiating an entirely new agreement
between the association and the Union, with the result that on August 6,
they executed a new collective-bargaining agreement having an expiration
date of August 6, 1982.
6 Even if. as is argued, these documents may have been signed earlier in
September, that would not affect the substantive issues presented for consid-
eration in the instant case.
85
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rant for business, on October 20, an entirely new comple-
ment of employees was employed there. In protest of the
failure to reemploy any of the former employees and of
Respondent Kallmann's failure to recognize it as the collec-
tive-bargaining representative, the Union commenced pick-
eting the restaurant on the following day. October 21.
In the context of this factual framework, the General
Counsel makes the principal allegation that the entire trans-
action, whereby Respondent Love's ceased operating the
Hayward facility as a company restaurant and Respondent
Kallmann commenced operating it as a purported fran-
chisee, was no more than a subterfuge designed to eliminate
the Union as the bargaining representative of the employ-
ees working there and to terminate any further obligation
by Respondent Love's to observe the terms of the appli-
cable collective-bargaining agreement. To support that
principal contention, the General Counsel advances several
subsidiary allegations. First, it is contended that the deci-
sion is close, and the incident termination of all employees
working at the Hayward facility, had been the product of
unlawful considerations. Second, it is argued that Respon-
dent Love's has remained the employer of the employees
working at Hayward, either because Respondent Love's re-
mains the true employer of the Hayward restaurant em-
ployees or because Respondent Love's has remained at
least a joint employing entity of those employees. Third, it
is alleged that the refusal to rehire any of the former em-
ployees, once the restaurant was reopened on October 20,
was the product of the same unlawful considerations that
had purportedly motivated closure of the restaurant almost
I month earlier. Thus, it is argued that, at the very least,
Respondent Kallmann is a successor. Fourth, it is asserted
that by withdrawing recognition from the Union, by repu-
diating the collective-bargaining agreement, by refusing to
bargain with the Union, and by unilaterally changing rates
of pay and benefits, Section 8(a)(5) and (I) of the Act was
violated.
Finally, the General Counsel contends that Section
8(a)(1) was independently violated, during the picketing
that followed reopening of the restaurant, when employees
were told that they would be rehired at wage rates and with
benefits comparable to those contained in the collective-
bargaining agreement if they were willing to forego repre-
sentation by the Union, and, further, when surveillance was
engaged in or when the impression of surveillance was cre-
ated by assistant manager David Sebban.
Respondents deny these subsidiary allegations, as well as
the principal contention. Instead, Respondents contend
that the transaction between them was a straightforward
one whereby Respondent Kallmann replaced Respondent
Love's as the sole employer at the Hesperian Boulevard
restaurant. Moreover, Respondent Kallmann denies that
the volume of its business will be such, during the first year
of operation, that it will satisfy the Board's discretionary
standard for asserting jurisdiction over retail enterprises.
B. Respondent Love's Relationship with the Hayward
Employees
The record discloses that disputes arose between the
Union and Respondent Love's during the time that the lat-
ter operated the Hayward restaurant. For example, Re-
spondent Love's had retained the employees of the original
franchisee following termination of that franchise in De-
cember 1973. However, it announced that their seniority
would be dated from when the restaurant became com-
pany-operated, rather than from the inception of their em-
ployment there. One of the employees, bartender Peggy
Turner, challenged that announcement, pointing out that
the Union's positive was that seniority commenced from
the dates that employees started working at the restaurant.
Respondent Love's then reversed its field and acquiesced in
the Union's view of the matter. So far as the record dis-
closes, no further mention was ever made of this incident.
Similarly, as a result of Respondent Love's requirements
that bartenders do certain tasks other than tending bar,
Turner had sought the intervention of then business agent
Steven K. Martin who, in 1976, secured Respondent Love's
agreement that bartenders would not be required to per-
form duties other than those set forth in the collective-bar-
gaining agreement. Commencing in July 1976, Turner and
other female bartenders periodically had been told that
they should wear dresses. On each occasion, they had said
that they would not do so and, while Respondent Love's
never retracted this requirement officially, it was never en-
forced and female bartenders continued to wear whatever
they desired.
Most of the more serious conflicts between the Union
and Respondent Love's centered around two officials of the
latter: Fred Choy, who had served as manager at the Hay-
ward restaurant from October 1976 until May 3, and James
Patterson, who had served as area operations coordinator
during 1977, at least until closure of the Hayward restau-
rant in September.7 The first such dispute involved head
cook James Steven Porters and Choy. Early in 1977, Choy,
in the presence of then Area Operations Coordinator Grant
Naylor, 9 had given Porter a warning notice because of the
latter's absence on the prior day and had told Porter,
"Now, you can call your Union if you want to." Porter
replied none too clear,'0 it appears that Choy reacted in a
manner leading Naylor to intervene between the two men
because he believed that they might fall to blows, ultimately
telling Porter to return to work and that everything would
be all right. There is no evidence that anything further was
ever heard of this incident.
I The parties stipulated that during the above-mentioned respective peri-
ods, Choy and Patterson had been supervisors within the meaning of Sec.
2( 1) of the Act and agents of Respondent Love's. Under Respondent Love's
chain of command, Clarence Palmer is president. Beneath him are three vice
presidents, one of whom is Ronald Mesker. Mesker is responsible for overall
operating functions, including being ultimately responsible for operations at
restaurants. Beneath Mesker is Director of Operations John Spence to whom
the area operations coordinators, each of whom is responsible for evaluating
operations at a number of restaurants, report.
There is no contention that Porter had been a supervisor within the
meaning of Sec. 2(11) of the Act while employed as head cook.
The parties stipulated that Naylor had been a supervisor within the
meaning of Sec. 2(11) of the Act and an agent of Respondent Love's from
January to May, when he had been employed as area operations coordina-
tor, responsible for Respondent Love's Bay Area restaurants and for one
restaurant in Sacramento.
'0Only Porter testified concerning this incident. Choy and Naylor were
not called as witnesses. Neither was employed by Respondent Love's at the
time of the hearing. No explanation was advanced by any party for failing to
call them as witnesses.
LOVE'S BARBEQUE RESTAURANT NO. 62
Employee complaints regarding conditions at the restau-
rant, primarily of an operational nature, and concerning
comments by Choy, to the effect that he intended to bring
in people from outside the Union who would do a good job,
led Martin to meet with Choy in the late winter or early
spring." Martin testified that he had opened the meeting by
saying that he had received complaints and wanted to know
what was wrong. Choy had replied that he was tired of
being harassed by the Union, but then had retracted that
assertion, when asked by Martin who in the Union had
been harassing him, saying "Well, no, it's not the Union.
It's the employees saying that they will go to the Union if I
don't straighten up some problems." After reviewing the
substantive complaints concerning operating conditions at
the restaurant, Martin had inquired why Choy had told the
employees that he was going to bring people from "the
City"' to take jobs. Choy had replied that he had thought
about it, but was not going to do it." There is no evidence
that the meeting had been conducted with any acrimony,
nor is there evidence that it ended with any animosity. So
far as the record discloses, Choy's superiors has not been
aware that it had taken place.
Although this meeting seemingly resolved the sources of
employee dissatisfaction, Turner testified that about 2 days
afterward, Choy had summoned her to the office where he
had said "that he would try to work with us," but that he
was tired of the employees "running to the Union" every
time that he turned around and that from "now on, we are
going to go strictly by the book." According to Turner,
Choy then had issued a new employee craft book to her and
had given "me what I call the 12 commandments. He had
12 items written down there. He went over them item by
item, and they were primarily house policy, house rules."
Turner testified that when he had come to item 7, "all fe-
male employees shall wear a dress," Turner had said that it
had been agreed that she would not have to do so. She
testified that Choy "got all hot about that," but ultimately
had agreed to delete this requirement. Turner further testi-
fied that as the meeting drew to a conclusion, Choy had
asserted that he "was tired of all the babies around here. He
was going to bring in his own people that weren't union and
that would do what they were told to do .... "
Turner further testified that approximately 2 days later,
she had overheard Choy discussing the guard on the dish-
washer with employee Jerry Gutfield and that Choy, after
saying that he could not "help it," had walked across the
restaurant and, in a tone which Turner characterized as
"threatening," had hollered back. If you didn't like it, go to
the Union."' Turner claimed that she had responded,
"] While Turner claimed that she had been present at this meeting, this
was not confirmed by Martin, who testified only that "Mike Branco was
there, and Mr. Choy, and myself." Though he testified, Branco did not de-
scribe this meeting. Consequently. Turner's claim that she had been present
was uncorroborated.
12 A colloquialism for the city of San Franciso.
" Turner, in recounting her version of this meeting, which she claims to
have attended, testified that during the meeting, Choy had denied saying
"Every time you turn around, if you don't like it, [you] go to the Union" and
had "also denied he had said he would bring in his own people."
14 Gutfield was not called as a witness to corroborate Turner. nor was the
failure to call him for that purpose explained.
"Hey, Fred, I thought you didn't say 'If you don't like it, go
to the Union.' " but that Choy had not replied to her com-
ment."
Martin, who became secretary-treasurer and business
manager of the Union in January, and Mike Branco, who
had replaced Martin as business agent for the territory en-
compassing the Hesperian Boulevard restaurant, each testi-
fied that there had been continued complaints from the
Hayward employees following their meeting with Choy.
However. neither testified that these complaints pertained
to Choy or to comments concerning employees going to the
Union or about replacing employees, as had been the case
prior to their meeting with Choy. Rather, they testified that
in addition to complaints regarding operating conditions at
the restaurant, the employees had complained of their treat-
ment by Patterson.
Accordingly, another meeting had been arranged for
May or June to confer about these problems. Respondent
Love's had been represented by Patterson and by Herschel
Chubb, a labor consultant who had been representing Re-
spondent Love's, as well as I.H.O.P. Corporation, for sev-
eral years. Representing the Union were Martin, Branco,
then Secretary-Treasurer Joseph Medeiros, and two or
three shop stewards from the Hayward restaurant.' The
discussions had been conducted almost exclusively by Mar-
tin and Chubb, who reviewed the problems listed by the
Union one by one. Chubb had agreed that most of them
would be corrected. There is no evidence either that the
meeting had been acrimonious or that there had been any
dispute left unresolved at its conclusion. Among the matters
listed by the Union had been the assertion that Patterson
had been referring to employees, particularly the younger
ones, as "boys," and had been saying that he did not intend
"to change their diapers." There is no evidence that there
had been any references by Patterson to employees' union
sympathies. Thus, the complaints regarding Patterson had
been of a quite different nature than the earlier ones about
Choy.
Turner had been on sick leave from April 15 until June 3.
during which time Patterson had become area operations
coordinator. According to Turner, when she did return. she
discovered that, contrary to her prior schedule, she had
been assigned weekend work. When she broached Patterson
regarding this assignment, he had replied, according to
Turner, that while he had never met her, he had heard a lot
about her and that he had changed her schedule because he
needed a good bartender on weekends. Turner testified that
when she had inquired how he had known that she was a
good bartender, in view of the fact that he had never seen
her tend bard, Patterson had replied that he had talked to
Betty Ramsey,' who had assured him that Turner was a
I Turner described Choy as being "a small man."
m6 Only Martin and Branco testified concerning this meeting. Martin testi-
fied that the shop stewards who had attended the meeting had been Debbie
Barker and two male employees, Eddie and Brian, whose last names he did
not recall. Branco could recall only Barker's name.
17 Ramsey. whose supervisory and agency status is disputed, came to work
for Respondent Love's in late 1973 or early 1974, and was a field operations
representative, a position primarily filled by people who have demonstrated
an ability to train and to refine the skills of employees working in the restau-
rants. However, field operations representatives also fill in as replacements
(Continued)
87
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good bartender. He then described his reasoning concern-
ing the economic motivation for assigning Turner to work
on weekends. There had been further discussion, pertaining
to Turner not doing work not covered by her classification
and regarding her view that Respondent Love's break pol-
icy was "ridiculous," and the conversation had terminated
with Patterson pointing out that Turner did not make pol-
icy decisions. So far as the record discloses, there were no
further incidents between Turner and Patterson regarding
these subjects.
C. The Discussions Regarding the Closure
It was no secret that Respondent Love's planned to close
the restaurant and that at least one reason was the high
wage rates mandated by the collective-bargaining agree-
ment. Respondent Love's officials had told this both to the
employees and to the Union. With respect to the former,
Turner testified that in December 1976, then Assistant
Manager Mike Garrisons had told her that Naylor had
said that because of the union wages, Respondent Love's
never made any money at Hayward and, accordingly, in-
tended to get rid of the Union.' 9 Turner also testified that in
March or April, then Assistant Manager Bruce Gordon20
had said that Naylor had told him that Respondent Love's
was going to try to get out of the Union as soon as the
collective-bargaining agreement expired in August.
In April and May, bartender Susan Kruger had been
working at the Walnut Creek, California, restaurant,2
where she had been attempting to interest employees in
representation by the Union. Area operations coordinator
Naylor had summoned her to the office one day where, she
testified, he had mentioned hearing a rumor concerning her
activities and had asked why she was seeking representa-
tion. Kruger testified that when she had responded that her
purpose was to obtain more money and better benefits,
Naylor had said that he did not think that it would be a
good idea as Respondent Love's would close the Walnut
Creek restaurant before letting it be unionized and, in fact,
that Respondent Love's was thinking of closing the Hay-
ward restaurant.2 2
whenever needed in Respondent Love's operations. In that capacity, Ramsey
had filled in for restaurant managers when necessary. For example, she had
served as temporary manager at Hayward on one or two occasions for 2 or 3
week periods. During the time that Patterson had been area operations coor-
dinator in Northern California, Ramsey had reported to him when working
in the area. She was salaried and was reimbursed by Respondent Love's for
work-related expenses which she incurred. At the time of the hearing, she
was no longer employed by Respondent Love's.
li While there was no apparent dispute concerning the fact that Garrison
had been assistant manager at Hayward and, during that time, had been a
supervisor and an agent of Respondent Love's, the latter contended that his
employment there had terminated in July 1976.
91 While Turner testified that steward Barker and a couple of waitresses
had been present when Garrison had made these remarks, no one else was
called to corroborate her account of this conversation.
2 The parties stipulated that Gordon had been assistant manager at the
Hayward restaurant from January to May 1, and that during that time, he
had been a supervisor and agent of Respondent Love's.
21 Walnut Creek is located approximately 25 miles form Hayward.
2 For purposes of analysis, I have assumed that Naylor's comment re-
ferred to the Union as the reason for closing the Hayward restaurant. How-
ever, another interpretation is possible, based upon Naylor's remark as re-
lated by Kruger. He had warned Kruger that the Walnut Creek restaurant
Hostess-cashier Clotilde Roy and her husband, John,
were personal friends of Choy. Roy testified that approxi-
mately a month before Choy had left Respondent Love's
employment at Hayward on May 3, he had been angry and
had said, "Don't be suprised that the store closes by Au-
gust." Roy further testified that when she had asked Choy
for a reason as to why the restaurant might close, he had
responded "Well, first all the problems we are having with
the Union and besides that the Restaurant is not making
enough money to pay the high wages that the Union has."
In response to a further question by Roy, Choy had said
that the closure would occur in August "because, you
know, that is when they have to sign the new contract and
I don't think they will do it," adding again that the reason
was because of "the high wages of the Union."
Both Roy and her husband described comments made by
Choy, pertaining to the closure, during a dinner conversa-
tion. However, certain portions of their accounts do not
correspond. Mrs. Roy testified that this event had occurred
about a month after Choy had left, that he had come to her
house for dinner, and that he had said that the restaurant
was not making enough to pay the high wages of the em-
ployees and that the employees went to the Union for
everything, with the result that "there are a lot of problems
right now between the Union and the employees." How-
ever, her husband testified that the conversation had oc-
curred shortly before the restaurant had closed, that Choy
had cooked dinner for he and his wife, and that he recalled
only that Choy had said that the restaurant would close
because Respondent Love's felt that the wages rates re-
quired under the terms of the collective-bargaining agree-
ment were too high.?
Porter testified that in approximately the last week of
August, then Assistant Manager Robb Washer had told
him that he felt that the Union would go. The statement,
according to Porter, was made during the course of a pri-
vate conversation and Porter testified that he had promised
never to repeat the remark so long as Washer was an em-
ployee of Respondent. However, in his pretrial affidavit,
given on November 18, after the Hayward restaurant had
closed, Porter stated: "I do not recall anyone in manage-
ment ever saying that the employer was attempting to get
rid of the Union." He admitted that the statement in his
affidavit was inconsistent with his testimony concerning
what Washer assertedly had told him. In an effort to ex-
plain the inconsistency, Porter testified that he felt that
what he had said in his affidavit had been the truth inas-
much as "there are different stipulations in it" and further,
that "I said that I would never mention that as long as he
might be closed. So far as the record discloses, Respondent Love's had not
closed restaurants with any degree of frequency. Consequently, his reference
to closing the Hayward restaurant may have been designed to allay any
doubt that Kruger might harbor that Respondent Love's would be willing to
close a restaurant. In other words, his point may have been to emphasize
that closure, itself, was not inconceivable, without regard to the reason for
closing the Hayward restaurant.
z2 John Roy also testified that during a conversation on July 8, 1978, Choy
had said that Respondent Love's had closed the restaurant because it had
wanted the Union out, that the decision had been made at a higher echelon,
that the Union had been viewed as a problem, and that Respondent Love's
attorneys had felt that by franchising the restaurant, the employees who
supported the Union could be terminated, thereby shutting out the Union.
88
LOVE'S BARBEQUJE RSTAURANT NO. 62
was an employee." Porter quickly pointed out that Washer
was "no longer an employee" at the time of the hearing
and, accordingly, "tlhat's the word I gave a friend of mine,
and that's the word I kept."
With respect to Respondent Love's discussions with the
Union concerning closure, on May 12 Chubb met with Me-
deiros to discuss the economic condition of the Hayward
restaurant. Chubb carried to this meeting a letter from Lyle
Fackrell, I.H.O.P. Corporation's director, Industrial Rela-
tions, containing a breakdown of the comparative costs of
the Hayward restaurant with those of another of Respon-
dent Love's restaurants, in LaMirada, California. Medeiros
did not deny that this letter had been shown to him during
the course of this meeting. Moreover, he conceded that
both at this meeting and at a subsequent meeting on June 1.
Chubb had said that without financial relief, the Hesperian
Boulevard restaurant would be closed. Thus, at the may 12
meeting, testified Medeiros, Chubb had asked if the Union
could make any concessions in the contract to keep the
restaurant open and if the Union would be willing to afford
Respondent Love's "some relief in certain classifications, in
health and welfare and so forth." Medeiros, however, testi-
fied that he had viewed these comments as no more than a
bargaining ploy inasmuch as it had been his experience,
based upon past negotiations, that employers, in general,
and Chubb, in particular, were "always crying poormouth
and they are always trying to whittle something out of the
organization and I just take it as a matter I have been
hearing this for thirty something years, I just take it as a
matter of-I just take it as a grain of salt, the same old
story."'4
It is undisputed that at a dinner meeting with Medeiros
on June I, Chubb had renewed Respondent Love's plea for
financial relief, pointing out that economic conditions at the
restaurant had not changed since their last discussion of the
matter. Medeiros conceded that, again, "Chubb pointed out
to me the possibility of closing the place down if there
wasn't anything that could be worked out," but claimed
that he had continued to view this as no more than Chubb's
typical approach designed to maneuver the Union into
granting overly generous concessions. Nevertheless, when
asked if Chubb had given any indication that the situation
was "something different than just one of those ordinary
situations," Medeiros acknowledged that, "Well, I think he
was a little more-trying to push the things about maybe
some more concessions, and at that time I told him, I'm
starting the process of negotiations of the master agreement
with the Restaurant Association and there is nothing in the
world I can do right now." (Underscoring supplied.) 2 How-
" Medeiros claimed that 'ilf the Company had sent me a wntten notice at
that time. yes, I would have taken [Chubb] more seriously"
" As pointed out in footnote 5, supra, at some point, not disclosed by this
record, the wage reopener became a vehicle for renegotiation of the entire
associationwide master agreement which Respondent Love's was bound to
follow by virtue of the "me-too" agreement signed originally in 1973 and
which Respondent Love's had apparently agreed to follow when it began
operating the restaurant. Thus, while Respondent Love's sent a letter to the
Union on May 25, giving notice of intent to terminate its collective-bargain-
ing agreement. it cannot be said whether that letter was generated by the
events giving nse to the instant proceeding or whether it was sent in connec-
tion with the parallel associationwide negotiations for a new collective-bar-
gaining agreement
ever, it was not until August 19, that that agreement was
reached on the terms of a completely new associationwide
collective-bargaining agreement.
In the meantime, Chubb testified that he had reported
the results of his May 12 and June I meetings with Medei-
ros to Fackrell and Mesker. who had then made the final
decision to close the Hayward restaurant. although no date
for the closure had been set at that time. It is undisputed
that Chubb then had met with Medeiros on July 21. had
explained that the decision had been made to close the res-
taurant at some point, though no date had yet been estab-
lished, and had asked if Medeiros had any suggestions that
would avoid the lay offs of employees working there.
Chubb testified, without dispute by Medeiros, that the lat-
ter had not offered any such suggestions, but had said that
he would rather have the restaurant closed and that Re-
spondent Love's should "make sure [it] didn't play around
with his employees and that [it] gave them their wages that
might be adjusted upwards because of the new contract
that he might negotiate and bring up to date all his fringe
benefits, health and welfare mainly and the vacation condi-
tions."
Following the July 21 meeting. Chubb testified that he
had been notified that Respondent Love's intended to close
the restaurant during the last week of September and, on
August 26. he had telephoned Medeiros, relating this infor-
mation to him. Medeiros testified that he had no knowledge
prior to September 26 that the restaurant would be closed
on that date. Nevertheless, when asked about the August 26
telephone conversation described by Chubb, Medeiros con-
ceded that. "I do remember him calling me sometime and
said they were going to close the place." However. Medei-
ros claimed that he did not remember whether Chubb had
given him a date for the closure.
By letter, dated September 22, Fackrell officially notified
the Union, directly, rather than through Chubb as. it is
undisputed, had been the case previously. that, "Due to
economic conditions. International House of Pancakes, Inc.
will close the [Hayward restaurant] as of business on Sep-
tember 25, 1977. All employees will be terminated as to this
date. All pay and benefits due employees will be paid to
them at this time."
D. Negotiations Leading to Execution of the Franchise
Agreement
Karl Kallmann, herein called Kallmann, is the son of
Herb Kallmann. herein called H. Kallmann, who, along
with his partner, James Jackson, had operated a restaurant
in Fresno, California,6 for a number of years. under a fran-
chise arrangement with Respondent Love's. Jackson had
been the manager of that restaurant. Kallmann, who was
29 years old at the time of the hearing in this matter, and
served as assistant manager there for 6 or 7 years. As a
practical matter, he had regularly performed the functions
of manager during that period, save for exercising control
over cooks and bartenders which Jackson had retained.
By the beginning of 1977, however, Kallmann had been
working for Far West Services at Rubin's No. 33 in Fresno
2, Located in the Central Valles of (alifornia, approxilnatel 150 miles
from Hayward
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was interested in acquiring a franchised restaurant that
he could operate. In January, he had checked the costs of
obtaining franchises for Uncle John's Pancake House and
from Sizzler Family Steak House. When he had discovered
that the former would cost him over $750,000 and that the
latter would cost approximately $400,000, he had asked his
father to check on the cost of a franchise from Respondent
Love's. In light of his lack of finances, which necessitated
that H. Kallmann act as a cosigner for any financial obliga-
tions which he incurred, Kallmann had suggested that pos-
sibly that two of them could become copartners in such a
venture.
Mesker testified that during 1976, both H. Kallmann and
Jackson had spoken with him concerning the possibility of
their acquiring an additional restaurant franchised by Re-
spondent Love's." According to Mesker, in late February
or early March. H. Kallmann had telephoned to inquire
about the possibility of obtaining an individual franchise,
without Jackson as a partner, and had indicated that his
son would be available to serve as manager of such an en-
terprise. Mesker testified that during that conversation and
during a series of subsequent telephone conversations the
two men had discussed the cost items, such as the purchase
of real estate, the construction of the restaurant and the
acquisition of equipment. Apparently, at that time it had
been H. Kallmann's intent to finance these items himself so
that he would be the owner of the premises and would
merely purchase a franchise from Respondent Love's.
At a meeting with Mesker during the first 10 days of
April, according to Mesker, H. Kallmann and indicated
that the cost of constructing a facility would be too great
and he had expressed an interest in acquiring a franchise at
an existing facility. Mesker testified that he had replied that
there might be one or two existing franchisees, whose
names Mesker had given to H. Kallmann, that might be
interested in selling out. Mesker further testified that he had
also mentioned "that there could certainly be a possibility
of an existing company operation," but that there was noth-
ing positive and that the possibilities were limited. Accord-
ing to Mesker, the meeting had ended with H. Kallmann
saying that he would get back to Mesker after further con-
sideration of the matter.
Mesker testified that this meeting had been followed by
several telephone conversations with H. Kallmann during
which the subject of franchising had been explored further,
leading ultimately to another meeting on June 29. In the
meantime, during the course of one of the telephone con-
versations in May, Mesker testified that, the subject of a
franchise for the Hayward restaurant had been discussed
for the first time. Mesker testified that he had told H. Kall-
mann that Respondent Love's was having very little success
with its operation there and was not desirous of continuing
its experience for the next several years. He claimed to have
told H. Kallmann, "I would probably have to reach a point
where the Restaurant would have to be closed if the present
conditions continued" and, if that point were reached, "I
would certainly consider franchising it as opposed to have
to sublease it to someone else outside the Company that
27 Neither H. Kallmann nor Jackson appeared as witnesses in this proceed-
ing. No explanation was advanced concerning the failure to call them.
would operate it other than as a Love's."2 He pointed out
to H. Kallmann, testified Mesker. that under no circum-
stances would that restaurant be closed during the current
fiscal year, which terminated at the end of' August.
During May, Mesker met with Kallmann. Mesker did
not describe the substance of their conversation, other than
to say that it had not involved Kallmann personally acquir-
ing a franchise." Kallmann's testimony tended to confirm
that of Mesker in this respect, for Kallmann testified that he
had told Mesker that "My father and I would like to check
into a franchise," but that he had not said directly that he
wanted to be a cofranchisee with his father."' According to
Kallmann. Mesker had outlined the terms of a franchise
agreement, but when he had described the cost of con-
structing a new facility to be franchised. Kallmann had ex-
pressed the opinion that the cost would be too high. Kall-
mann testified that Mesker had then said that there was a
"possibility" of franchising the Hayward restaurant" and, if
that were not available, he might be able to put Kallmann
into a different franchised operation if one came up. During
this conversation, Mesker had informed Kallmann that Re-
spondent Love's had a collective-bargaining agreement
with the Union covering the Hayward restaurant and that
negotiations were in progress for renewal of that agreement.
However. Kallman denied that Mesker had said anything
about there being problems with the Union or that he had
been told that he would have any difficulties or problems
with the Union should he become involved with operation
of' the Hayward restaurant 12
During the May conversation with Mesker. Kallmann
testified that he felt that if he were ever to operate his own
restaurant there were certain skills with which he would
need to be familiar, such as cooking and bartending, and,
accordingly, that he had asked if he could go into manage-
28 Mesker conceded freely that Respondent L.ove's had not done extensive
franchising during the preceding 3 or 4 years, but he testified that this had
been the result of a policy shift away from accepting individuals with mini-
mal experience as franchisees in Respondent Love's operations and in favor
of experienced, qualified restaurant operators who would be more likely to
be capable of operating such a franchise. Of course. the paucity of recent
franchising experience by Respondent Love's tends to support a conclusion
that Naylor's reference to the Hayward restaurant, during his conversation
with Kruger, had been intended as proof' that Respondent ove's would
close a restaurant, rather than a reference to the reason.
" Earlier in his testimony Mesker did testify that he had met with Kall-
mann in May to discuss acquisition of the franchise, but once the question-
ing disclosed clearly that reference was being made to Kallmann, himself,
acquiring the franchise, as opposed to his father doing so. Mesker quickly
pointed out that he had not participated in any conversations concerning
Kallmann becoming the franchisee.
'0 Kallmann also testified that as between his father and himself, he had
been the first to approach Mesker in May. This. of course, was the fact since
Mesker had met H. Kallmann in April and did not again meet him until late
June.
1i In a pretrial affidavit, Kallmann had stated that "*At the meeting in Los
Angeles in about May 1977 was told that I could take over the restaurant
in 3 months." Confronted with this statement. Kallmann testified that it had
not been a correct characterization of what Mesker had said. Rather. testi-
fied Kallmann. Mesker had talked only of a "possibility" without extending
any guarantees at that time.
12 Kallmann testified that he believed that the decision as to whether an)
restaurant that he operated would be unionized was his to make, since "I am
from Fresno. we don't have those kind of problems. I have never run across
those kind of problems and that tpe of problem is not familiar to me.
I.OVE'S BARBEQUE RESTAURANF NO. 62
ment for Respondent Love's." As a result. Kallmann was
hired by Respondent ove's to be manager at a company-
operated restaurant in San Jose.
At the June 29 meeting with H. Kallmann, testified Mes-
ker, there had been a discussion of the specific details of
financing a franchise for the Hayward restaurant and of
how Kallmann was doing at the San Jose restaurant. Mes-
ker characterized this as being "what you would consider
the initiation of negotiations of the terms of the agree-
ment." It was also Mesker's lasting meeting with H. Kall-
mann. In mid-July, he had sent H. Kallmann a letter sum-
marizing the points made during the June 29 meeting 4 and
there had been subsequent telephone conversations be-
tween them regarding the details of a franchise arrange-
ment, resulting in a reduction of equipment rental to $50
per week for the first 52 weeks (with rent to be $160 per
week thereafter) and of rent for the premises from 6 to 5
percent.
Thereafter, Respondent Love's attorneys had prepared a
copy of the proposed franchise agreement, real property
sublease, and equipment lease, and, as required by state law
for franchise agreements which vary in any degree from
existing franchise agreements, had transmitted them to the
California Corporations Commission for approval at the
end of August. Respondent Love's had received approval
between September 10 and 12, at which point Mesker had
transmitted copies to H. Kallmann and had left for his va-
cation on September 15. He testified that upon his return,
on October 6. he had discovered that the documents had
been signed by the younger Kallmann. rather than by 11.
Kallmann."
Kallmann testified that he had been apprised generally
by his father of H. Kallmann's negotiations with Respon-
dent Love's as they had progressed, but that he had not
seen the documents transmitted by Mesker until about a
week before he had signed them. Instead, they had been
given to his father's attorney when they' had been received
from Mesker and, according to Kallmann, when the attor-
ney had approved them, he had told his father that he
would sign them, although he did not know if his father had
related that expression of willingness to sign to Respondent
Love's. Kallmann further testified that on September 25.
Spence had telephoned and had arranged for execution of
the documents and transfer of the liquor license to take
place on September 27 at the Hayward restaurant.
3 In a pretrial affidavit, Kallmann had stated: "At our meeting in Los
Angeles, Mesker outlined the terms of the franchise agreement to me. At that
time it was agreed that I would pursue the franchise agreement, and I re-
quested a temporary position as the manager of a Love's Restaurant, for a
short period of time so that I might again familianze myself with the man-
agement of this type of a restaurant." While acknowledging that he had
made this statement and had read the affidavit carefully before signing it.
Kallmann testified that the terminology "management" had been inaccurate.
since his experience at Fresno, in his opinion, had taught him how to manage
a restaurant, but had not taught him about such things as cooking and
bartending. In reality, there is very little inconsistency here, since to be an
effective manager. Kallmann would have to know about cooking and bar-
tending. Else, how could he effectively supervise these areas of operation?
This letter was never presented at the hearing
i It appears that the Kallmanns. father and son, may have taken advan-
tage of Mesker's acation absence to substitute the son for the father as the
franchisee.
E. The Docunnts Sigc'ned biy Respondent Aollilan on
Septembehr 2 7
The total agreement between Respondents invols,ed the
execution of three documents. with the primary one being
the franchise agreement. It contains a series of1 provisions
significant in analyzing Respondents' status once Respon-
dent Kallmann commenced operating the restaurant on Oc-
tober 20. First. it recites that Respondent l.ove's has devel-
oped secrets for successful processes, copyrights and
trademarks: new and distinctive policies for establishing.
developing, and operating restaurants specializing in sale of
its products, services, and related items: and, techniques for
better promotion, sale, and merchandising of its products.
services, and related items offered through restaurants oper-
ated under the name "Love's Wood Pit Barbeque." I'he
agreement goes on to state that to enhance the value of its
goodwill, as well as to better advertise and promote its
trade name, products and services sold, Respondent Love's:
has designed. developed. engineered and adopted a
standard, unique and uniform plan and style fir the
construction and operation of' Love's Wood Pit Barbe-
cue restaurants which includes, among other things.
an4 without limitation, engineering for highest effi-
ciency of operations of said restaurants. complete de-
sign and programming of the equipment, paper prod-
ucts, operating methods. construction, control systems,
accounting, delivery and freight systems, and for creat-
ing the greatest sales appeal, the design and program-
ming of advertising, sales techniques, menu planning
and decor. signs. interior and exterior design and de-
cor. uniforms, and procedures and training of person-
nel and management.
Second, the agreement specifies that Respondent Kall-
mann's franchise term "shall commence on . .. possession,
and shall terminate at midnight on February 24. 1993. un-
less extended by Respondent Kallmann's] exercise of an
option to extend that term," and so long as Respondent
Kallmann "in the good faith judgment of Respondent
Love's], has operated his franchised restaurant in an effec-
tive manner .... "
Third, the agreement imposes a $50,000 franchise fee on
Respondent Kallmann, with $10,000 payable upon execu-
tion and the remainder payable on weekly installments.
commencing 53 weeks after operations commence, and
with 7 percent annual interest payable on the outstanding
balance. Default in payment of any installment, as well as a
material breach of the agreement itself. results in the entire
unpaid balance being due and payable. In addition. under
the terms of the agreement. Respondent Kallmann agrees
to pay Respondent Love's for all items purchased from it.
on a weekly basis as well as the rent. taxes, insurance. as-
sessments, and other changes specified in the realty sub-
lease: the rent for fixtures, equipment, and signs required in
the equipment lease: a weekly royalty of .3 percent of gross
sales during the first 26 weeks of operation. 1.3 percent dur-
ing the succeeding 26 weeks. and 4.3 percent thereafter: a
weekly advertising payment of 2 percent of gross sales.
commencing with the 27th week of operation: ' and.
Il)uring the first 26 weeks of ,peration, Respondent Killnmann is re-
quired t pend I percent f gross sales n loca l acrtllsing
91
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$21,300 for Respondent Love's liquor license. In addition.
Respondent Love's must give prior written approval for Re-
spondent Kallmann to install any type of vending machine
and the net receipts from such machines are to be shared
equally between Respondents.
Fourth, the agreement requires Respondent Kallmann to
obtain specified types of insurance, which must be suitable
to Respondent Love's, in specified amounts: fire and ex-
tended coverage and vandalism and malicious mischief in-
surance on the building and all related furniture, fixture,
and signs for 100 percent of replacement cost: blanket li-
ability insurance with combined limit bodily injury insur-
ance of at least one million dollars per occurrence, includ-
ing products liability, and with property damage limits of at
least $100,000 per occurrence; and, workmen's compensa-
tion and business interruption insurance providing a mini-
mum of $5,000 coverage per month for at least a 4-month
period. Respondent Love's is to "be named as a loss payee
on all fire policies and as additional insured on all liability
policies." However, by the terms of the agreement, Respon-
dent Kallmann "is entitled and encouraged to secure on its
own behalf any additional insurance deemed necessary or
required by law."
Fifth, in what is one of the most crucial provisions for
purposes of resolving the issues in the instant case, Respon-
dent Kallmann is required to "operate the restaurant in
strict compliance with all applicable laws, rules and regula-
tions of duly constituted governmental authorities and in
strict compliance with standard operating procedures and
policies established by Respondent Love's], now in exis-
tence or which from time to time may be revised, added to
or subtracted by [Respondent Love's]." However, this pro-
vision of the franchise agreement continues by stating that
it is understood that a franchise would not have been
granted without Respondent Love's being "able to require
such strict compliance with such procedures and policies."
and then recites:
By way of illustration, but without limitation, such
standard procedures and policies will specify design,
decoration and decor of the Love's Wood Pit Barbecue
restaurant, the type and layout of equipment, mini-
mum hours of operation, exact menus to be used (but
not to include the prices to be charged on such menus),
specific food items to be served, accounting proce-
dures, operating procedures, sanitation facilities and.
in general, will govern all other matters which in Fran-
cisor's (sic) judgment require standardization and uni-
formity in all Love's Wood Pit Barbecue restaurants.
Respondent Love's judgment is binding in such matters un-
der the express terms of the agreement. Finally, in addition
to agreeing not to manufacture or make substitutions of any
of Respondent Love's "proprietary secret formula prod-
ucts," Respondent Kallmann is bound not to sell any item
not listed in Respondent Love's Operations Manual, with-
out the latter's prior written consent.
Sixth, "in order that the uniformity in advertising may be
maintained throughout the franchising system," the agree-
ment provides that Respondent Love's will conduct all ad-
vertising publicity and promotional campaigns, and that its
decision is final with respect to such matters. Respondent
Kallmann is prohibited expressly from advertising "in any
manner whatsoever" and may not erect or display any signs
or notices without Respondent love's prior written consent.
In turn. Respondent Love's agrees to establish and main-
tain a "multi-regional advertising fund." to which it will
contribute 0.3 percent of the gross sales of company-oper-
ated and franchised restaurants. The selection and imple-
mentation of advertising and promotional compaigns con-
ducted under that fund is to be made by Respondent Love's
"in its absolute discretion and shall be binding on all par-
ties."
Additionally, should Respondent Love's and a majority
of the franchises in the San Francisco Bay Area counties
agree to establish an "advertising cooperative affiliation,"
Respondent Kallmann must join and participate fully in all
of its endeavors, including financing by a percentage of
gross sales established by agreement of gross revenues.
However, such an affiliation cannot be established unless a
majority of the restaurants in the Bay Area are franchised.
Seventh, while Respondent Love's agrees to provide all
equipment. fixtures, and signs needed for sufficient opera-
tion of the franchised restaurant, Respondent Kallmann
can elect, prior to August 15. 1979, to purchase these items
for a price equal to "the then present value of the capital-
ized lease receipts as reflected on [Respondent Love'sJ
books of account," with payment to be made within 30
days of Respondent Kallmann's exercise of that option.
Eighth, under the terms of the agreement, Respondent
Love's has no duty to furnish any accounting services to
Respondent Kallmann who, states the agreement, has been
granted a royalty reduction of 0.4 percent of weekly gross
sales for electing not to avail itself of any accounting service
provided previously by Respondent Love's. However, Re-
spondent Kallmann is required to deliver "operating state-
ments, gross sales reports and other data which ma be
required" by Respondent Love's on forms provided by the
latter, on weekly or such other basis as Respondent Love's
may require, and in accord with Respondent Love's "stan-
dard procedures and policies." Further Respondent Kall-
mann is required to maintain its records in the manner
specified by Respondent l.ove's, which has "the right to
examine and photocopy and books and records maintained
by [Respondent Kallmann]."
Ninth, the agreement recites that "it is essential for the
successful operation of the ... restaurant chain ... that the
public receive the same high quality of products and ser-
vices in each and every . . . restaurant." Accordingly, the
agreement provides that maintenance of Respondent Love's
standards of quality for food products and services is a ma-
terial convenant, and that Respondent Kallmann agrees to
purchase fbod products only from purveyors who can con-
sistently deliver products of the quality required by Re-
spondent Love's. In addition, Respondent Kallmann is
obliged to stock those "items which will, or may be, capable
of providing identification of the franchise with the national
franchise program of [Respondent Love's]" and these prod-
ucts must bear "distinctive markings and the name
'LIOVE'S" in order to insure uniformity of all franchise op-
erations."
Tenth, another crucial provision requires that the man-
ager of the restaurant be a full-time employee, without in-
volvement in other endeavors while employed as manager.
92
LOVE'S BARBEQUE RESTAURANT NO. 62
and that Respondent Love's has no obligation to discuss
restaurant operations with any other person. The name of
the manager, in this case Kallmann, is inserted in the fran-
chise agreement which provides that should he cease to op-
erate the restaurant on a full-time basis. Respondent Kall-
mann must designate a new manager, acceptable to
Respondent Love's, within 10 days. The agreement recites
that this provision is so critical to success of the restaurant
that it is a material convenant under which Respondent
Love's is given the option to terminate the entire agreement
in the event of its breach.
Eleventh, the agreement recites that the franchisee is an
independent contractor, that no employees of Respondent
Kallmann shall be deemed employees of Respondent
Love's, and that "nothing herein contained shall be con-
strued as to create a partnership, joint venture, agency or
any other business relationship other than that of an in-
dependent contractor." Neither party is liable for the debts
or obligations of the other.
Twelfth, Respondent Kallmann may not assign the
agreement without prior written consent of Respondent
Love's, and any effort to do so without such consent is
declared void, with Respondent Love's having the right to
terminate the agreement. However, Respondent Love's may
not withhold such consent "unreasonably," though the
withholding of consent is not to be deemed "unreasonable"
if the proposed assignee does not qualify to receive a fran-
chise under the standard set by Respondent Love's for all
prospective franchisees. If Respondent Kallmann decides to
dispose of any rights subject to the agreement, Respondent
Love's has a right of first refusal and, accordingly, Respon-
dent Kallmann must afford it written notice of its intent to
transfer and of the terms and identify of the proposed trans-
feree. The agreement provides a procedure for verifying the
market value of any tangibles or intangibles specified in the
notice, culminating in a final and binding decision by a
"disinterested umpire," and accords Respondent Love's 30
days after the fair market value has been established to
accept the franchisee's offer. Should Respondent Love's fail
to do so, the franchisee can consummate the sale, but only
on the terms contained in the original written notice sent to
Respondent Love's.
Thirteenth, there is a detailed provision concerning
breach of the agreement. This provision first recites that
strict performance of all terms of the agreement is required
for the protection of all other franchisees, as well as for
Respondent Love's, "to best preserve, maintain and en-
hance the reputation, trade name and good will built up for
the franchising system, the establishments adopting and
using the same, the products sold and dispensed therefrom,
and the trade name and/or trademarks used in conjunction
therewith."
It then lists various grounds for default: commencement
of bankruptcy, debtor, or insolvency proceedings by or
against the franchisee; as assignment or purported assign-
ment by franchisee for the benefit of creditors; appointment
of a receiver or placement of a keeper in possession of the
business or assets; transfer by the franchisee, voluntarily or
involuntarily, or a substantial part of the business without
prior written consent and approval of Respondent Love's;
and, "default in the performance of any of the terms of this
Agreement. the Sublease or the Equipment Lease," or fail-
ure to "maintain full and complete compliance with the
provisions of the Franchise Agreement"-especially those
provisions pertaining to the franchisee's financial obliga-
tions (the third item, supra), compliance with laws, rules,
and regulations (the fifth item, supra), maintenance of the
standards of quality (the ninth item, supra), and the provi-
sion under discussion as this, the thirteenth, item which
cannot be cured within specified periods after written notice
from Respondent Love's to the franchisee.
The concluding sections of the franchise agreement per-
tain to prohibition of use of Respondent Love's trade name,
goodwill, operating procedures, or trade secrets at other lo-
cations; Respondent Love's right to market its product
through retail outlets; interrelation of the terms of the sub-
lease and equipment lease with those of the franchise agree-
ment: locations at which notices are to be served on the
parties to the agreement: divisibility; arbitration of contro-
versies arising under the agreement; effect of the captions in
the agreement on its interpretation; and, a provision re-
garding the self-contained nature of the agreement as to the
extent of the understanding between the parties.
The second document signed on September 27 by Kall-
mann was the sublease. By its terms, Respondent Kallmann
adopted all terms of Respondent Love's realty lease, and its
amendments, and agreed to pay as rent the greater of
$666.92 per week or 5 percent of its weekly gross sales, as
well as the taxes, insurance premiums, and other costs as
required by the master lease to which Respondent Love's is
a party.
The third document signed by Kallmann was the equip-
ment lease. It specifies the items being leased in an attached
exhibit; provides that these items remain Respondent
Love's property; limits use of these items to the restaurant
and to the purposes contemplated by the parties' overall
agreement; provides for a term concident with that of the
realty sublease and franchise agreement; obliges Respon-
dent Kallmann to pay rent of $50 per week for the first 52
weeks and $160 per week for the remainder of the term, as
well as for all personal property, sales, and/or use taxes;
requires Respondent Kallmann to maintain, repair, and re-
place, when needed, the equipment at its "sole cost and
expense"; accords Respondent Love's the right to pay un-
paid taxes and repair unrepaired or improperly maintained
equipment at Respondent Kallmann's expense, with 10 per-
cent annual interest if Respondent Kallmann fails to reim-
burse Respondent Love's within 10 days of written notice of
the latter's expenditure; gives Respondent Love's the right
to enter the restaurant at any time to inspect the leased
items; and accords Respondent Love's the right to obtain.
on Respondent Kallmann's behalf, fire and extended cover-
age and burglary insurance, for the full replacement value
of the leased property, which Respondent Kallmann must
keep in force during the term of the lease.
In addition, the equipment lease obliges Respondent
Kallmann to continue rent and tax payments notwithstand-
ing damage or destruction, and, to insure that such pay-
ments continue, require Respondent Kallman to obtain
business interruption insurance, naming Respondent Love's
as a co-insured, in an amount sufficient to cover rent and
taxes for at least 16 weeks; prohibits Respondent Kallmann
93
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from assigning, pledging, transferring, or removing the
equipment from the premises, or allowing anyone else to
use it, without Respondent Love's written consent; and
gives Respondent Love's the right to terminate the lease
and to remove the personal property for default in any rent
installment, breach of any other condition of the lease,
commencement of bankruptcy, or insolvency proceedings
by or against Respondent Kallmann, appointment of a re-
ceiver for the business, or discontinuance of Respondent
Kallmann's business at the premises, but in such case Re-
spondent Kallmann is still obligated for damages and other
accrued obligations. All warranties which Respondent
Love's possess on the personal property are assigned to Re-
spondent Kallmann, with Respondent Love's agreeing to
cooperate fully in any action for redress and recovery there-
under, though Respondent Love's has no further obligation
concerning such defects.
The final document signed by Kallmann on September
27 was a promissory note, whereby Respondent Kallmann
became obligated to pay $40,000 to Respondent Love's,
plus interest on the unpaid balance at the rate of 7.0 percent
per year, in weekly installments of $125, commencing dur-
ing the week ending October 29, 1978, with each payment
to be credited first on interest then due. The note provides
that if default occurs in any installment when due, the en-
tire principal and interest become immediately due at Re-
spondent Love's option. By check dated September 28. Re-
spondent Kallmann paid the $10,000 down payment on the
franchise fee as required by the franchise agreement. This
$10,000 was paid from the proceeds of a $40,000 loan, from
a Fresno branch of Security Pacific National Bank, made to
Kallmann and his father. Of the remaining $30,000 loaned
to the Kallmanns by the bank, $21,300 was used to pur-
chase Respondent Love's liquor license 7 and $7,500 to pur-
chase Respondent Love's inventory. These amounts were
paid into escrow.'
On the same day, Kallmann journeyed to the Alameda
County Courthouse where he filed the necessary papers re-
quired by law for Respondent Kallmann to commence op-
erations of the restaurant.
F. The Closing of the Hayward Restaurant
Events at the restaurant had continued normally prior to
the closure. Thus, Respondent Love's paid the increased
health and welfare contributions for the Hayward employ-
ees during August and September, as required by the newly
negotiated collective-bargaining agreement. Although the
newly negotiated wage increases were not paid to any of the
Hayward employees prior to the closure, Turner and Porter
each described August and September conversations with
Respondent Love's officials-the former with Ramsey,
then-manager Dobson and then-assistant manager Washer,
and the latter with Ramsey, Dobson, and Patterson-in
which these officials had said that the retroactive increases
called for by the new agreement, would be paid and that
37 Respondent Kallmann then operated under a temporary liquor license
until late December.
"The escrow for the Hayward restaurant opened on September 27 and
closed in late December.
only preparation of the paperwork at Respondent Love's
Los Angeles headquarters was delaying receipt by the em-
ployees of the retroactive amounts.
Two other conversations during this same time are signif-
icant. Clotilde Roy testified that in August she had heard
rumors that the restaurant was going to close and, so, one
evening she had asked Dobson about them. In reply, testi-
fied Roy, Dobson had said, "Oh, those rumors have been
going on for quite a bit now, but I don't think we will close
because, you know, close the Restaurant costs a lot of
money, and besides that we just spent $2,000 repairing
things around the Restaurant." According to Roy, when
she had inquired what was being repaired, Dobson had re-
sponded the dishwasher and the ovens, and when she had
then asked why these things were suddenly being repaired,
Dobson had replied, "I don't know."
The second conversation was one between Patterson and
Ramsey, approximately 2 weeks before the restaurant
closed. Alice Pingree testified that she had overheard Pat-
terson telling Ramsey that "this is the filthiest, dirtiest store
he ever saw and ... if and when the store closes, anybody
that is working there will never work in another Love's
store."
Respondent Love's did close the restaurant on the eve-
ning of September 25. The decision to close was not that of
Mesker, who claimed that it had been made by Spence with
the approval of Respondent Love's president Palmer. Nei-
ther Spence nor Palmer appeared as witnesses. The first
that most of the employees learned of the closure was the
following morning when Ramsey telephoned them with no-
tification of the closure, telling that they could pick up their
final paychecks between noon and 3 p.m. that same day.
When the employees arrived at the restaurant for their
checks, they discovered that all windows and doors, save
one, had been boarded up. They were given numbers and
were admitted to the restaurant, when their numbers were
called, to obtain their checks from Ramsey and Patterson.
Most of the employees gave a uniform account of these
events. Turner and Porter, however, chose to make some
additions.
Turner testified that when she had entered the restaurant.
at approximately 2:30 p.m., Ramsey had been crying and,
in response to Turner's question, had said that she could
not talk. According to Turner, after she had gotten her
check from Patterson, Ramsey had been "really crying,"
but when she had tried to comfort Ramsey, Patterson had
screamed to get out of the restaurant. Porter testified that
when Ramsey had telephoned him that morning, she had
been "kind of sniveling" and had indicated that she could
not talk because Patterson was in the office. When he later
was admitted to the restaurant, for his paycheck, at ap-
proximately 2 p.m., he claimed that Ramsey "was shaking
and she was crying, had been crying a lot .... "
Yet, five other former employees-Pingree, Hansen, Lo-
gan, Bishop, and Wadsworth-each testified to having been
in the restaurant that afternoon. Three of them-Pingree,
Hansen, and Logan-testified that they had come there in
response to telephone calls from Ramsey. Three of them-
Pingree, Hansen, and Bishop-specifically described Ram-
sey as having been present during the times that they had
been in the restaurant. Pingrec and Hansen both described
94
LOVE'S BARBEQUE RESTAURANT NO. 62
conversations in which each had participated with Ramsey
that afternoon. Yet, not one of them described Ramsey as
having been crying when they had seen and spoken with
her. Rather, Pingree testified that Ramsey had said merely
that it was a shame this had happened as Pingree was the
best waitress that Respondent Love's had ever had. Hansen
testified that she had been told by Ramsey only that she did
not know if the restaurant would reopen and that Hansen
had been a good employee.
That same afternoon, in response to telephone calls made
to him by the employees, Branco had gone to the Hayward
restaurant where he had spoken twice with Patterson. Dur-
ing their first conversation, Branco testified that he had
asked what was going on, that Patterson had said that the
restaurant had been closed, and that the employees would
all get paid, and that he (Branco) had "expressed concern
that there was no notice informing them that the people
that had showed up for work who were regularly scheduled
to work under our contract should receive show-up pay for
that day. I wanted to make sure everybody received the
proper amount of pay .... " According to Branco, when
Patterson had assured him that the employees would be
paid properly, he had gone outside the restaurant, but had
gone back inside upon discovering that some employees
had not been paid correctly. However, he testified that
when he had broached Patterson about the discrepancies,
the latter had replied that it was out of his hands and that
there was nothing that he could do.
Thereafter, Branco contacted Chubb and, ultimately, a
meeting was conducted, shortly before Respondent Kall-
mann opened the restaurant, at which Chubb represented
Respondent Love's and the Union was represented by
Branco, Mike Salerno, and attorney Stemerman. Branco
testified that at this meeting, he had given Chubb a list of
employees who had not been paid correctly and had re-
ceived a promise to correct any inaccuracies. According to
Branco, the Union had also taken the position that Respon-
dent Love's was still under contract, that Respondents were
the same entity, and that the Union wanted a meeting with
Respondent Kallmann before the restaurant was again
opened. Branco testified that Chubb had promised to set up
such a meeting. The parties stipulated that, if called as a
witness, attorney Stemerman would testify that Chubb had
offered to set up such a meeting. Chubb, however, testifed
that he had said only that Branco should contact the fran-
chisee himself because Chubb did not represent him. He
specifically denied having said that he would arrange or set
up a meeting between Respondent Kallmann and the
Union.
G. Respondent Kallmann Prepares To Reopen
Initially, Kallmann had been told that the restaurant
would be closed for only 2 weeks to be cleaned, but later he
had been told that more time would be needed. The result
was that he did not open until October 20. In the interim,
he undertook several measures to prepare for the opening.
First, since Respondent Kallmann was purchasing Re-
spondent Love's inventory at Hayward, Patterson and Kall-
mann each had taken an independent inventory of all items
on the premises. As a result, when the escrow closed. Re-
spondent Kallmann had gotten back approximately $3,500
of the money that had been deposited in escrow to pay for
the inventory.
Second, he began contacting purveyors to establish a re-
lationship between them and Respondent Kallmann. For
example, he arranged for credit from Niles Meat Company,
Avard-Garth/Distribuco Inc.," Carnation Foods Com-
pany, Columbo Baking Company, and C.E. Rhodes Com-
pany. He signed a rental agreement with Exchange Linen
Company for such items as shirts and vests. He contacted
Coors Distributing Company and arranged for it to change
the tap on his draft beer, as well as for credit, so that Coors
been would be sold, rather than Michelob beer that Re-
spondent Love's had been selling. He agreed to Oakland
Cigarette Machine Company's proposal for retention of the
cigarette vending machine that had been in the restaurant.
He made a $2,000 utility deposit with Pacific Gas and Elec-
tric Company and a $430 deposit with Pacific Telephone
Company. Respondent Kallmann also obtained an em-
ployee identification number from Internal Revenue Ser-
vice and a City of Hayward business license.
Third, Kallmann reserved two rooms at a nearby Vaga-
bond Motel, the cost of which he paid, so that he could
interview applicants there. In an effort to attract applicants,
he contacted the placement services at Cal State Hayward
and Chabot College and, additionally, placed advertise-
ments with the Oakland Tribune and the Hayward Daily
Review. According to Kallmann, he had placed these ad-
vertisements with these two newspapers on Friday, Septem-
ber 30, but the Review apparently had lost his advertise-
ment. When it was not published, he had postponed his
motel reservation and had cancelled the Tribune advertise-
ment, believing that it, alone, would not generate a suffi-
cient number of applicants. Subsequently, he again had
placed advertisements with both newspapers, the one in the
Review to commence on October 12 and the one in the
Tribune to begin on October 13. In both newspapers, the
advertisement had stated simply that a new, but unidenti-
fied, restaurant was hiring in specified classificationse and
that those interested should apply in person at the motel on
Wednesday, October 12. or on Thursday, October 13.
Kallmann testified that he had conducted interviews at
the motel for 2-1/2 days, starting on October 12, and had
then changed the situs to the restaurant. That shift is re-
flected in the advertisements in which, for the first time, the
39 Which supplies Respondent Kallmann with products bearing the Love's
label, such as canned beans, sugar packets, place mats, coasters, etc., as well
as with other grocery and paper products. Kallmann testified that he had
become familiar with both Niles and Avard-Garth while managing Respon-
dent Love's San Jose restaurant during the summer.
s The initial advertisements specified that the classifications for which
applicants were being invited were those of waitress, bartender, hostess/
cashier or cashier, dishwasher, cook, and bus personnel. However, by Octo-
ber 14, the classification dishwasher had been deleted from the advertise-
ments. It was later restored in the Review advertisement of October 18, but
the bartender, cashier and bus personnel classifications had been deleted by
then. There were no advertisements in the Tnbune after October 16. While
Kallmann testified that he had deleted classifications from the advertise-
ments when he had finished hiring and had sufficient additional applicants in
those classifications, he did not explain why the dishwasher classification had
been restored to the list in the Review advertisement of October 18
95
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
name of "Love's Barbeque Restaurant," along with the
Hesperian Boulevard address, is substituted for the name
and address of the motel in the Review advertisements of
October 14 and thereafter, and in the Tribune advertise-
ments of October 15 and 16. Kallmann instructed the motel
operator to refer applicants, who came to the motel, to the
restaurant.
H. The Interviews and the Initial Emplo ,ee Complement
Both Mesker and Kallmann testified that, as part of the
franchise fee paid by Respondent Kallmann, Respondent
Love's had been responsible for providing personnel to as-
sist Respondent Kallmann in beginning operations. Among
the personnel assigned to do this were Southern California
Area Operations Coordinator Key Kyle and Diane Crosby.
an employee in Respondent Love's Los Angeles industrial
relations department. They had assisted Respondent Kall-
mann in conducting the interviews. Kallmann testified that
they had confined their activities to distributing application
forms, assisting applicants in completing them, and collect-
ing the completed forms from those who did not wish to
wait to be interviewed.
Kallmann claimed that he had been the only official to
interview applicants and that he had conducted all inter-
views. This testimony was contradicted by assistant man-
ager David Sebban, who testified that his employment for
Respondent Kallmann had commenced on October 14, that
he had "started interviewing the day I started there," and
that he had interviewed probably 20 applicants.
Kallmann testified that he had hired approximately 30
employees to start work in the restaurant when it had
opened on October 20. However, he claimed that the selec-
tion of applicants to be hired had been made earlier, as does
indeed appear to have been the fact inasmuch as a 3-day
training program, described infra, had commenced on
Monday, October 17. According to Kallmann, by the sec-
ond day of interviewing, on October 13 or 14, all three
dishwasher vacancies had been filled; by October 14, the
three hostess-cashier positions had been filled; by approxi-
mately October 15, all three bartenders' positions had been
filled; and, by the morning of October 17, the six cooks' and
four busboys' positions had been filled. He believed that he
had hired nine waitresses, but gave no approximation as to
when those positions had been filled.
Of the employees originally hired, the applicants of 28 of
them were produced. Assuming that the dates listed thereon
are accurate, two had applied on October 12, nine on Octo-
ber 13, seven on October 14, one each on October 15 and
16, seven on October 17, and one on October 18. Of the
eight applications filed on October 17 and 18, three list
waitress only as the position sought by the applicants, three
list waitress or hostess-cashiers as the positions sought, one
lists cook and kitchen helper or waitress, and the applica-
tion of David Keneth Dugan, filed October 17, lists dish-
washer and cook or cashier as the positions for which he
sought employment. The significant point about Dugan's
application is that it bears the notation "Dish," apparently
written by Kallmann, in the left margin, indicating that
Dugan had been hired as a dishwasher. If so, this would
mean that Kallmann's testimony that all dishwashers had
been hired by October 13 or 14 was inaccurate.'
None of these employees had ever worked at the Hay-
ward restaurant. However, Respondent Kallmann did re-
ceive seven applicants from former Hayward employees:
that of Linda Malone-Morris dated October 13, for the po-
sition of hostess-cashier; that of Porter, dated October 14,
for the position of cook or waiter; that of Hansen, dated
October 14, listing no position; that of John Boyd, dated
October 17, for the position of busboy or dishwasher; those
of Richard Logan and David Wadsworth, dated October
17, for the positions of cook and D.M.O. (dishwasher); and,
that of Richard Bishop, which is undated, but which he
testified that he had filed 4 days before Respondent Kall-
mann opened the restaurant, for the positions of dishwasher
or busboy. There was no testimony regarding the applica-
tions of Malone-Morris or Boyd. Each of the other five
former Hayward restaurant employees described the cir-
cumstances under which they had filed their applications.
Porter testified that he had been "desparate for a job"
and that on approximately Friday, October 10, he had seen
an advertisement, in the Review, which had listed the Vaga-
bond Hotel, but which had "read almost identical to the ad
that I had answered for Loves in 1972 .... " Suspecting, he
testified, that the advertisement had been placed by Re-
spondent Love's, Porter had telephoned the motel and had
been told that the interviewer had moved to the restaurant.
He then had gone there that same day, where he had com-
pleted an application and had been interviewed by Kall-
mann.
According to Porter, in reviewing the application, Kall-
mann had noted orally that Porter was an ex-employee of
the restaurant and when Porter had replied, "Yes, sir, I
am," Kallmann had responded, "Hum." Porter testified
that he had quickly "said, 'Well, I know there have been a
lot of problems here,' and I said, 'I know this store can
function as a Union store and I know we can make it work
and I feel that I can help you make it work,' type thing. I
don't know if I said those exact words." In response, testi-
fied Porter, Kallmann had said that he would be hiring for
the rest of the week, and that he would "take" Porter's
application, thanking Porter "for being so honest with me."
However, Porter testified that while Kallmann had prom-
ised to telephone to report Respondent Kallmann's decision
on Porter's application, Kallmann had never called him
thereafter.
On cross-examination, Porter denied specifically that
Kallmann's promise to telephone had been predicated only
on a decision by Respondent Kallmann to hire Porter.
Porter was then shown his pretrial affidavit in which he had
stated: "Kallmann said he would review my application
and call me by Sunday if I was hired." After reading this
statement, Porter testified that he did "not believe at this
time that that is what Mr. Kallmann told me," and that "I
feel that he told me he would call within the week." An
even more significant inconsistency between Porter's testi-
41 Further support for the conclusion that Kallmann had been wrong when
he had testified that all dishwasher positions had been filled by October 14 is
found in the reinsertion of that classification in the Review advertisement of
October 18, as mentioned in fn. 40. supra.
96
I.OVE'S BARBEQUIE RESTAtRAN r NO. 62
mony and his affidavit was the statement in the latter that
"During the interview the Union was not mentioned at all."
Porter testified that this had been written in response to the
Board Agent's question as to whether the Union had been
mentioned to Porter during the course of the interview.
"and that's what I wrote and that's what I said."
Kallmann recalled that he had spoken with Porter. had
reviewed his application, and had considered him to be "a
fairly good employee if I was able to hire him." However.
he testified that following the interview. "I started thinking
how filthy the kitchen was. I mean absolutely filthy. We
had to use drills to clean out the grease, and I didn't really
want that type of employee working for me."42
Wadsworth and Logan applied at the same time. Since
he had been the first to complete his application. Logan had
been interviewed by Kallmann before Wadsworth. Accord-
ing to Logan, Kallmann had inquired if Logan went to
school and Logan had said that he did, from 9 to I 1. but
that he could arrange his schedule so that he could work
full time on nights or days. Logan testified that as Kall-
mann had read down the application, he had arrived at the
part where Logan had written that he had worked previ-
ously at the restaurant." At that point, testified Logan.
Kallmann had said that "there were no positions open ex-
cept for maybe a dishwasher job that he wasn't certain
about, that a boy was supposed to call him." Logan testified
that he had told Kallmann that he would accept work as a
dishwasher, but that Kallmann had replied that he was
pretty certain that the position "was taken also." Like
Porter, Logan testified that Kallmann had promised to tele-
phone him so that Logan would have noticed whether or
not he had been accepted, but had never done so."
As had Logan, Wadsworth had written on his application
that he was applying for a job as cook or D.M.O.. and had
worked at the restaurant for Respondent Love's as a
"DMO/Cook." He testified that he had not been going to
school at the time and had been available to work at any
hours of the day. According to Wadsworth, as Kallmann
read over the application, he had come to the part where
Wadsworth had written down his prior employment at the
restaurant, at which point Kallmann had asked if Wads-
worth had worked there before and Wadsworth responded
affirmatively. Kallmann. testified Wadsworth, had then said
"that there was only one job available and he doesn't know
about it." However, in contrast to Logan. Wadsworth testi-
fied that the job which Kallmann had mentioned had been
that of a busboy. Initially, Wadsworth began to deny that
Kallmann had offered him a position, but, after hesitating,
he acknowledged that, "well, they offered me a busboy po-
sition and I said that I felt-that I had worked my way up
in seniority because I was working there before and I told
him I would not be interested in working the busboy posi-
tion."
4 Kallmann testified that, during the interview. Porter had said that he
had been head cook at Hayward. Porter acknowledged that he had become
head cook at the Hayward restaurant in mid-July and his application so
stated.
4iOn that part of his application. Logan had written that he had worked
for Respondent Love's at Hayward as a "DMO. (COOK,"
4 Kallmann testified that he had received approximatels 200 applications
and had interviewed approximately 125 applicants
Kallmann agreed that he had interviewed Logan and
Wadsworth during the afternoon of October 17. However.
he testified that he had told them that there might be a
position available in the future, but that at the present all
positions were filled. le denied specifically having told lo-
gan that there was a dishwasher position available, "be-
cause I had hired quite a few davs previously." But he tes-
tified that he probably had told Wadsworth that there
might be a busboy position available in the future.4 He
denied that Logan had said anything about arranging his
school schedule so that he could work at any time of day.
He testified that the only reason that neither L.ogan nor
Wadsworth had been hired was because of the absence of
openings and not due to any conflicts with school schedules
that either may have had. Yet, in his pretrail affidavit. Kall-
mann had stated: "The only other former employee appli-
cants I interviewed were, I believe. two bus boys. I did not
hire them because they were not available to work days.
Both indicated to me that they were attending school dur-
ing the day. I needed employees for the day shift." Kall-
mann agreed that the last two sentences had been added to
the affidavit, presumably by his attorney. However. he was
not asked to explain the inconsistency between these sen-
tences in his affidavit and his testimony concerning his rea-
son for not hiring Wadsworth and ogan at the time that
they applied.
The fourth former lHayward employee to apply had been
Hansen, who testified that after completing her application.
she had been interviewed by Kallmann at the food counter.
She testified that he had asked her name, age, and job for
which she was applying, and had inquired about her experi-
ence, saying that Respondent Kallmann was seeking experi-
enced people. However. when it became apparent to Kall-
mann that Hansen had been working at the Hesperian
Boulevard restaurant at the time that it had been closed.
she testified that he had remarked. "oh, you were one of
them." According to Hansen. Kallmann had said that he
would check with Ramsey concerning her and would let her
know. She never heard rom him again. Kallmann testified
that he did not believe that he had interviewed Hansen,
although he later testified that a certain mark made by him
on her application indicated that she was an experienced
employee.
The fifth former Hayward employee to testify about fil-
ing an application for work with Respondent Kallmann
was Richard Bishop. He testified that, approximately 4
days before the restaurant had been opened by Respondent
Kallmann, he had entered and had gone to the office used
formerly by Respondent Love's manager, where a man
whom he did not know at the time. but whom he later
learned was Richard Sawyer., was present. According to
Bishop, when he had asked to speak to the manager. Saw-
yer had replied that he was the manager and. at Bishop's
request, Sawyer had given him an application to complete.
'~ Kallmann testified that this had been a standard comment which he had
made to most applicants "ecause the turnover rate in the Restaurant vork
is around 300 percent or so,. and so it the' come hack ai the right time. n the
right place trpe thing, hen there could he . gd possblit ol his being
hired "
An area operations c,ordinator Ioir Respondent Love's who normanil
services restauranls In Soulhern ('.;llltornlri. Arizonal. (olorado. nd texas
97
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When returning the completed application to Sawyer.
Bishop testified that he had asked if he would get the job.
pointing out that he felt that he should be hired inasmuch
as he had worked at the restaurant before it had closed and
that it was unfair to hire new, rather than former, employ-
ees. Sawyer, testified Bishop, replied that he would give
Bishop a call and would try hard to get him a job.
Sawyer did not appear as a witness nor was there any
explanation for the failure to call him. However, Bishop's
pretrial affidavit omits any mention of Sawyer having iden-
tified himself as the manager of the restaurant. Rather, it
states only that "I went up to the manager, he was also in
the restaurant the day I picked up my check. I asked him
for an application and told him I had worked there before."
At no point in the affidavit does Bishop state that his im-
pression had been based on anything other than his own
assumption based upon the location (what had been the
manager's office) where he had spoken with the man.
There is one other employee who applied for employ-
ment with Respondent Kallmann and whose testimony is
significant at this juncture.4 7 That was Tara Blaylock. Ier
application bears the date October 13. It is undisputed that
she had been interviewed by Kallmann and ultimately had
been hired as a hostess-cashier. She testified that during the
course of the interview, Kallmann had described the restau-
rant's background, saying that it used to be union before it
had been closed, but that he had taken over and "now since
he is hiring new people, he is going to go non-Union." Kall-
mann denied specifically having discussed the Union with
Blaylock during the interview, having told her during the
interview that the restaurant had been union before it had
been closed, and having made any statement to her to the
effect that since he was hiring all new employees, the res-
taurant would now be nonunion.
I. The Restaurant Reopens and Picketing Commences
On October 20, Respondent Kallmann opened for busi-
ness. On October 21, the Union began picketing the restau-
rant and was still doing so during the hearing in this matter.
During the early phase of the picketing, two incidents oc-
curred which form the basis of allegations of independent
violations of Section 8(aX I) of the Act.
The first incident involved comments made to pickets
Pingree and Turner by Kallmann and Sebben. Pingree tes-
tified that Kallmann had approached them in front of the
lounge door, had asked why they did not "lay your picket
signs downs," and had said to her (Pingree) that he would
hire her immediately, because he needed experienced wait-
resses, at the same wages and hours as before, "but it will
not be Union." According to Pingree, Turner had then in-
terjected, asking if Respondent Kallmann would hire her.
but Kallmann had "looked at her a few minutes and [had
said], no, I don't think so, I hear you are too radical." Pin-
gree also testified that during the course of the conversa-
tion, Kallmann had not mentioned needing experienced
help in any classification other than waitress, but that he
had said that three experienced persons had applied for
47 Clotilde Roy also applied for employment with Respondent Kallmann,
as discussed infra.
employment with Respondent Kallmann. although he had
not hired the two who applied to be hostess-cashiers "be-
cause they acted like they owned the place and the other
was a cook and he wouldn't hire him because the kitchen
was too dirtN." T
Turner testified that this conversation had begun with
Kallmnann asking the pickets why they were picketing him.
According to Turner, she had replied that they wanted their
jobs back and when Kallmann had asked why they did not
then picket Respondent Love's in Los Angeles. she had re-
sponded that they did not work in Los Angeles. Then, testi-
fied Turner. the pickets had given "Karl a bad time about
his inexperienced help" in the restaurant and Kallmann
had agreed that he needed experienced help, since his expe-
rienced people would not cross the picket line. Turner testi-
fied that Kallmann had then offered to hire Pingree, if she
would put down her picket sign. and had offered to pay her
union scale and health and welfare, adding that she would
not have to pay union dues because there would be no
union. When, testified Turner, she had then asked if she
could have her job back, Kallmann had replied that he had
been told by Ramsey that Turner was a good bartender, but
that "after the things he had seen ITurner] do on the picket
line, [she] was too radical" to be hired by Respondent Kall-
mann. ITurner further testified that, during the course of the
conversation. Kallmann had said that he felt that when he
came in, he was allowed to decide whether or not the res-
taurant would be unionized. She testified that she had chal-
lenged him, saying that it was the employees, not manage-
ment, that made that decision and had added that there
were 33 experienced employees ready to return if Respon-
dent Kallmann wanted an experienced crew.
Kallmann denied having told Pingree and Turner that he
would hire them immediately for the same wages and
hours, but that the restaurant would not be unionized. He
denied having invited them to lay down their picket signs
denied having said that he had not hired two hostess-cash-
ier applicants because they had acted like they owned the
restaurant. He also denied having ever checked with Ram-
sey about hiring any employees. Rather, he testified that
Pingree had asked why Respondent Kallmann did not hire
her, as she was a good waitress, and that he had responded
that he could possibly have hired her, but that she had
never applied" and, in any event. could not cross her own
picket line. Kallmann further recalled that Turner had
asked. "Well, would you hire me too, Karl?" He testified
that he had replied only "Peggy, you have been pretty nas-
ty." Finally, he testified that Pingree had said something to
the effect that the employees had not received all of their
wages, which had led him to ask why they were picketing
him, rather than picketing Respondent Love's in Los Ange-
les, since Respondent Love's and he were not the same per-
sons. This was all that Kallmann recalled of the conversa-
tion.
a Pingree testified that although she had not known to whom Kallmann
was referring at the time, she had later learned that he was referring to
Htansen. Roy and Porter. She did not saly how she had learned this.
'4 Pingree testified that while she had been aware that Respondent Kall-
mann had been accepting applications she had never applied because she
lelt that she would be wasting her time in light ,lI the comment that she had
overheard Patterson make to Ramsey
98
LOVE'S BARBEQUE RESTAURANT NO. 62
The second incident pertained to Sebben having taken a
photograph of Logan and Wadsworth, sitting in the latter's
car, after the picketing had been concluded one day. Seb-
ben acknowledged having done so. He testified that. "I was
actually right behind the car at the time and I looked inside
and I saw two guys there and I noticed that they had a
cellophane bag full of' some green substance which I be-
lieved at the time to be marijuana and I saw them rolling
some up so I decided to take their picture."5 0 He testified
that he had been carrying the camera to take pictures of
any violations of the temporary restraining order issued in
connection with the picketing.
The two pickets both testified that after the picture had
been taken, Logan, who had been seated on the passenger
side of the vehicle, had begun to roll down the side window
and open the door, in the process asking Sebben why he
had taken the picture. According to Logan and Wadsworth.
Sebben had retorted that Logan would learn how to do that
someday when he got older. Sebben testified that after hav-
ing taken the picture, he had walked away. He denied hav-
ing made any statement to the effect that Logan and Wads-
worth would know how to do that when they got older.
Finally, Kallmann agreed that during the early phase of
the picketing, the Union's agents had advised him that the
Union wanted a contract with Respondent Kallmann and
that he had declined to discuss the matter further with
them.
J. The Relationship Between Respondents
1. The operating manual
Respondent Love's furnished Respondent Kallmann with
"Love's Barbecue Restaurant Operations Manual," which
is divided into 18 sections, lettered A through R. The first
section, headed "Preface," admonishes the operator that its
"success in working with others in the pursuit of customer
acceptance and satisfaction is the key to LOVE'S future in
the restaurant business," and that Respondent Love's "poli-
cies and standards have been developed into a system
which . .. jilt is consummately important for [the operator]
to learn ... thoroughly and ... apply rigidly .... " Section
B, "The Love's Story," contains a brief history of Respon-
dent Love's, emphasizing the reputation that it has estab-
lished and assuring the operator "that the policies and
instructions set forth in this manual have evolved through
careful and proven analysis of each situation." Section C is
entitled "Standard Operating Procedures" and lists a num-
ber of rules pertaining to employees. It is reproduced as
Appendix B to this Decision.
Section D. "Craft Performance," contains a list of em-
ployee classifications, with a brief description of the general
responsibilities of employees in each classification and their
relation to the overall success of the restaurant. For exam-
ple, with respect to the waitresses, this section states that
"[t]he word Waitress is synonymous with service. From the
0 Logan testified that he and Wadsworth had been discussing a slip of
paper that had been given to him by Patterson on the day that he had
received his final check. Wadsworth testified merely that they had been
"looking over some papers."
time the guests are seated, to the time they leave her care,
good service should always be paramount. The Waitress is
our number one public relations representative. The im-
pression she creates will determine the LOVE'S image in
the minds of our clientele." This section concludes with the
admonition that all restaurant personnel should be pre-
pared to "take on the responsibility of many crafts," fol-
lowed by a listing of examples of interchangeable and com-
binable duties, i.e.. "The duties of the Busboy and DMO at
times may be interchanged or combined." and with an ap-
peal for teamwork to ensure the restaurant's success.
Section E. "Personal Appearance & Uniform." contains
a list of "what is expected in the way of personal appear-
ance from employees of LOVE'S," covering general matters
for all employees-such as hair length and style. appear-
ance of hands and fingers. facial hair in the case of men,
and make-up, stockings, and jewelry in the case of
women and specific appearance requirements for employ-
ees in each classification. An example of the latter is that
the cooks are required to wear a "standard white, collared.
button front" shirt with short sleeves, standard "cook's
checks" or "whites" uniform pants, "square waist type"
aprons affording "four changes per apron." "heavy duty
commercial type" shoes "with substantial arch supports
and rubber soles and heels" which must have "closed toe
and heel," a "red cloth high crown Chef's style uniform
hat" worn in the manner specified, and a red scarf "around
the neck, tied or looped in front." Section F, "Craft Duties
and Responsibilities." lists specifically the functions to be
performed by employees in each classification. An exam-
ple of the manner in which the duties of each classification
are delineated in the section pertaining to the classification
hostess. which is reproduced in Appendix C.
Section G contains a list of abbreviations for items sold
in the restaurant, i.e.., "Rib D" for Pork Rib Dinner, which
"must be taught all new personnel." Section H, "Guest
Check Procedure." lists a control procedure for handling of
guest check books. i.e. "Partially used guest check books
are to be used up first," including a detailed description of
the manner in which they are to be completed and pro-
cessed.
Section I is entitled "Product Specification." It provides
at the outset that the "specifications are presented in order
to ensure the proper maintenance of Love's Restaurant's
high standards of food preparation and presentation." not-
ing that it is "absolutely imperative that we maintain a sin-
gle entity image in the presentation of food and service to
our patrons" and, further. that deviation "from these speci-
fications may cause considerable damage to the reputation
of not only your individual restaurant, but to that of other
operators throughout the chain." It then lists private label
products, ranging from "Love's Meat Basting Sauce" to
"Love's Special Children's Bibs," which are to be carried,
followed by meat, produce, baked goods. dairy, and grocer
specifications. Each of specification categories is subdivided
into appropriate items with a specific description of the re-
quirements for that item. By way of illustration, for frank-
furters, the manual specifies "All beef (4/1) four to the
5' Some classifications have been subdivided Thus under the general
heading of Cook is included wheel man. board man. broiler man. and "to
go" man
99
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pound 6" long X 1-1/2" round. Ordered by weight, usually
comes in 10 pound boxes. All meat franks are not accept-
able." For grocery items, both a pack and a brand are
specified, e.g., for Au Jus Gravy Mix. "2/5 lbs. Per Case"
Pack and Lawry's Brand.
Section J, "Ordering Suggestions and Usage Guide
Lines," contains a list of "suggestions" for ordering mer-
chandise and for handling and stocking it after its receipt.
In the preface to this section, Respondent Love's states "we
will provide some tips which if utilized should help you
maintain closer control over your product usage and, there-
fore, guarantee better profits. It is important to remember
that regular inventories and strict product control proce-
dures are imperative in minimizing theft, waste and general
employee inefficiency."
Sections K and L are devoted to food production. They
contain, in essence, recipies for the preparation of each item
and, in the case of the items listed in section 1., for placing
the items on plates for service to customers. Section M,
"Dining Room Operation," carries this process to the next
stage by describing how waitresses should prepare the table
settings and serve customers. Section N describes the same
procedure for service in the cocktail lounge.
Section O lists "several steps to be followed in order to
avoid unnecessary cash losses which in the final analysis
means diminished profits." Section P. "Accounting," incor-
porates by reference the "Accounting Reporting Proce-
dures" published in a separate manual.s
Section Q contains several forms to be used fior such mat-
ters as recording payment of C.O.D. invoices from the cash
register, accounting for broken liquor bottles, and recording
daily sales. Among the instructions accompanying these
forms, specific mention of their use by franchisees and own-
ers occurs with respect to the Accounts Payable Schedule
(form L-101), Cash Removal (form -104), Employee Rec-
ord Card (form L-108), and Employee Termination (form
L-109) forms. Conversely, the instructions accompanying
certain other forms refer specifically only to manager: Li-
quor Breakage (form L-103), Waitress Reconsideration
Forms (form L-1l 10), Registration Correction Form (form
L-I 13), Daily Restroom Inspection Form (form L- 16), and
Starting Bank Form (form L-117). No reference is made
specifically to franchisee, owner or manager for the follow-
ing forms: Cash Payout (form 2), Application for Employ-
ment (form L-102), Daily Report (form L-106), Employee
Payoff (form L-107), Work Schedule Form (form L-l 119),
and Transmittal Form (form L-132).'
The final section of the manual, "Miscellaneous Operat-
ing Procedures," sets forth detailed procedures to be fol-
lowed for telephone etiquette, injuries and emergencies.
robbery, counterfeit money, and lost and found.
Both Mesker and Kallmann testified to the applicability
of these sections of the manual to franchised operations.
Kallmann testified that he never had been told that he had
to follow any portions of the Manual save fr sections 1, K,
and L, and that part of section M pertaining to the portions
of each item that must be served to customers. He further
testified that he had been told that the reason fi)r requiring
adherence to these sections was to preserve the quality and
" Not introduced in the instant matter.
uniformity of products served throughout the chain. In ad-
dition, Kallmann testified that he was obliged to prepare
the Daily Report Form (form L-106), but was not required
to prepare and maintain any of the other forms in section Q
of the manual. Further, testified Kallmann, though never
instructed to do so, he had followed some of the uniform
provisions of section E.
Mesker testified that franchisees are required to follow
the product specifications of section I and some of the por-
tioning requirements of section M. such as glass sizes and
amounts of various ingredients used in chefs salads, but
that many other items in that section, such as desserts, are
not readily susceptible to consistency. In addition, testified
Mesker, franchisees were obliged to adhere to the uniform
provisions of section E, "Personal Appearance & Uni-
forms." because food and the physical appearance of the
restaurant were "probably the two things that constitute the
restaurant's image more than anything else .... " Explained
Mesker, "People relate a chain to its appearance as well as
its fbood, and the reason that the uniform procedure is one
that we wish to enforce in all restaurants is that it has to do
with our image and what you are selling when you sell a
franchise is image." Finally, Mesker testified that the only
form that franchisees are required to use is the daily report
form.
All other sections of the operating manual, testified Mes-
ker, are merely suggestions and guidelines, insofar as fran-
chisees are concerned, for more effective operation, being
the product of common sense in some cases and of past
success and failures in other cases. For example, with re-
spect to section C, "Standard Operating Procedures," Mes-
ker testified that it "contains suggestions and guidelines"
evolved from experience with successful and unsuccessful
operations. Regarding section D, "Craft Performance,"
Mesker testified that it was not required that franchisees
adhere to the duties specified for each classification, but
that inasmuch as common sense dictated that certain duties
he performed by waitresses, cooks, etc., it was a require-
ment, though not to "the point of this being a rule or regu-
lation that is enforced to the letter by the Company." Simi-
larly, Mesker characterized section F, "Craft Duties and
Responsibilities," as "purely a guideline that is in the opin-
ion of Company management, if followed the restaurant
would be operated more effectively and it is to be used by
the franchise as a guideline."
Mesker testified that none of these sections would ever be
used as a basis for attempting to disenfranchise a franchisee
and, further, that none of them had ever been relied upon
to do so. Thus, while area operations coordinators prepare
call reports, evaluating the efficiency of operations at the
restaurants on the basis of periodic visits and inspections,
fo)r both franchised restaurants and for those operated by
Respondent Love's, Mesker testified that franchisees are
not required to do anything as a result of these reports and
they are "simply a tool that is provided by the area coordi-
nator as an objective professional's point of view to provide
the franchisee with assistance in evaluting the efficiency of
his operation, the effectiveness of his operation." Similarly,
whenever customer complaints are received by Respondent
Love's concerning a franchised operation, Respondent
l.ove's. according to Mesker. conducts no investigation of
100
LOVE'S BARBEQUE RESTAURANT NO. 62
that complaint, but instead automatically sends a letter of
apology to the customer, accompanied by a gift certificate
for which Respondent Love's reimburses any franchisee at
whose restaurant the certificate is redeemed.
Indeed, Respondent Love's has only ever attempted to
disenfranchise two franchisees in the past 5 years: one for
nonpayment of rent and royalties, and the other for non-
payment of royalties and for failing to comply with the
proprietary food specifications contained in the operating
manual. Mesker testified that based on his experience, "I
don't believe you could possible prevail in disenfranchising
a franchisee for alleged failure on his part to maintain the
service standards," due to the difficulty of proof and, fur-
ther, that bad service at a franchised restaurant would be
self-correcting, since it "would very quickly result in dimin-
ished sales which would result in the franchisees inability to
maintain his business."
2. The craft books
Respondent Love's training department has prepared a
series of craft books for each employee classification, i.e.,
waitress, busboy, cook, etc. Each of these books, regardless
of classification, contains a list of Respondent Love's stan-
dard operating procedures, taken from section C of the op-
erating manual and reproduced in Appendix B to this Deci-
sion, and, also, a list of the personal appearance and
uniform requirements set forth in section E of the operating
manual. In the book for each specific classification is repro-
duced that portion of the operating manual pertinent to the
classification covered by the book. For example, in the craft
book for busboys, that portion of section F, "Craft Duties
& Responsibilities," and that portion of section M, "Dining
Room Operations," describing the functions and duties of
busboys are reproduced verbatim. Similarly, a comparison
of every other classification's craft book with the operating
manual discloses that provisions of the former for each craft
are taken from the latter.
Mesker testified that although Respondent Love's train-
ers are supposed to use these books when training new em-
ployees, Respondent Kallmann had not been required to
accept nor to use these books at Hayward. Indeed, if it does
desire to use them, it is required to purchase them at the
price of $1 per copy. Kallmann testified that copies of these
books had been among the inventory which he had pur-
chase from Respondent Love's. He testified also that they
had been passed out to waitresses, who had been told that
they would be tested on them, but that as far as he knew,
this had been the only classification of employees to whom
this had been said. Thus, while the appropriate books had
been distributed to busboys, Kallmann testified that he had
not told them that they would be tested on their contents,
but, instead had told them to "take with a grain of salt
.... " Kallmann also testified that to his knowledge, books
had not been distributed to the initial complement of host-
ess-cashiers, cooks, or bartenders." Indeed, neither bar-
s As described infra, it had been primanly officials of Respondent Love's
who had trained Respondent Kallmann's initial employee complement and.
consequently, Kallmann would not necessarily possess firsthand knowledge
of all that had transpired during those training sessions.
tender Deborah Dawson nor waitress Carol Totman
claimed that craft books had been issued to them, though
both were hired by Respondent Kallmann.
With regard to employees hired subsequent to the restau-
rant's opening, Kallmann testified that he had purchased
new craft books from Respondent Love's only for wait-
resses, but that when they had been distributed, "I usually
verbatim said 'take it with a grain of salt, because there are
so many things in those craft booklets that we don't do, that
I don't do, and I gave it to them as a brief outline." Kall-
mann also testified that he did not distribute any other
books or other documents to employees describing what
their jobs entailed.
3. The training period
During Respondent Kallmann's initial period of opera-
tion, certain officials of Respondent Love's had worked at
the Hayward restaurant. Both Mesker and Kallmann testi-
fied that their functions had been to train Respondent Kall-
mann's initial employee complement and that their services
had been included in the franchise fee which Respondent
Kallmann had paid to Respondent Love's. Initially, the
training team had consisted of Ramsey, Fred Kroeger, and
Ken Kyle, with Kyle being in charge of the training team."
Kallmann testified that Savyer had arrived at noon at
Saturday, October 22, to replace Kyle, remaining until ear-
ly November when he, in turn, had been replaced by Mcin-
tyre who had remained until late November. Kyle. Sawyer.
and Mcintyre, according to Kallmann and Mesker, and all
performed the same functions, each, of course, for different
periods. Those functions, according to Kallmann, had been
to assist Respondent Kallmann in training hostess-cashiers
and bartenders, and to be certain that Ramsey and Kroeger
were training employees in other classifications, as well to
answer Kallmann's questions about such matters as the
identity of purveyors who could provide certain products
and to point out licensing and other requirements and mat-
ters that Respondent Kallmann needed to accomplish to
commence business. Mesker testified that, in general, Kyle
had been dispatched to Hayward "as the head of the train-
ing team, to supervise the total training thrust with Mr.
Ramsey and Mr. Kroeger." and "to assist Mr. Kallmann in
getting his business structure organized" 5 as well as "to
54 Kallmann testified that Ramsey and. apparently later. Kyle had been
working at the restaurant during the penod that it had been closed, supervis-
ing the personnel who had been cleaning the restaurant. as well as perform-
ing some of the cleaning themselves. Mesker and Kallmann testified that
Spence had been at the restaurant on October 21 and 22, representing Re-
spondent Love's at Respondent Kallmann's opening. Martin testified that
while on the picket line, he had observed discussions among Kallmann. Saw-
yer. Sebben. Ramsey, and Spence taking place at one of the tables. with
Spence appearing to act as leader or moderator of these discussions He
testified that these meetings had occurred during the first week of picketing,
with the first one being on the first Saturday or Monday of the picketing, but
that he had not seen any such meetings thereafter. Martin also testified that
he had seen Spence at the restaurant dunng its first and second weeks of
operation Though it is argued that Spence had been gising directions to all
present, including Kallmann, during these meetings. it is equally inferrable
that Kallmann, the franchisee, had been simply listening to what Spence told
Respondent Love's personnel conducting the training.
"5 That it was, in fact. Respondent l.sve's practice to provide training
assistance to franchisees is shown bh Porter's estlmon) that he had recei'sed
t('ontlnued)
101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminate [Respondent Love's] responsibility from the
standpoint of various governmental agencies, utility compa-
nies and vendors." No explanation was advanced for the
replacement of Kyle with Sawyer, nor for the latter's re-
placement by Mcintyre.
With respect to Ramsey and Kroeger, Kallmann testified
that the former had been responsible for assisting in train-
ing waitresses, busboys and, to some extent, hostess-cash-
iers, while Kroeger had helped to train the kitchen person-
nel. Both Kallmann and Mesker testified that these five
individuals, particularly Ramsey and Kroeger, had not
been assigned to do craft work and had not done so, except
to the degree necessary to demonstrate to newly hired em-
ployees how to perform their duties. As Mesker testified,
"[w]hen you are involved in training, show and tell is the
way you do it, so quite often it would include doing it to
demonstrate how it is done to new people."
However, several of the picketing former employees de-
scribed occasions when they had observed Ramsey, by her-
self and with no one else around, performing craft duties.
For example, Pingree testified that she had seen Ramsey.
by herself, waiting on tables during the first week of the
picketingi s Turner, who had picketed until early Decem-
ber, testified that she had seen Ramsey, every day during
that period, "washing tables, taking customers' orders,
hanging tickets, running cocktails, cleaning menus, seating
customers, taking cash, cutting pies, fixing salads, making
milkshakes, everything." Likewise, Porter testified that from
the commencement of picketing until November 7, he had
regularly seen Ramsey performing work normally per-
formed by employees:
I saw her sweeping the floor. I saw her filling mints at
the hostess station. I saw her taking cash. I saw her
running cocktails. I saw her hanging orders. I saw her
making salads. I saw her cutting pies, marking cheese
cakes, making sundaes and milkshakes, dishing soups,
bussing off tables, using the vacuum sweeper to clean
up the floor. On one occasion I even saw her cooking,
putting beans in the bean cook and turning over bread,
this type of thing.
In addition to Ramsey, Turner and Porter described
work which they purportedly had seen Kroeger performing
in the restaurant while the picketing was in progress. Thus,
Porter testified that he had observed Kroeger seating peo-
ple, occasionally taking cash, and, while standing at the
door from where he could see "straight in" to the kitchen,
"I could see him putting buns in the toaster. I could see him
buttering breads and I could see him down at the other end
of the kitchen filling bean cups, and I could see him using
the slicer." However, while Porter denied that other person-
nel of the restaurant had been near Ramsey when she had
been performing the tasks which he had described, he did
not similarly testify that Kroeger had been alone when pur-
portedly performing these tasks. Turner claimed that she
had seen Kroeger cooking, seating customers, and, once,
training at one of Respondent Love's restaurants to enable him to begin
work at the Hayward restaurant once it was opened in 1973 by the original
franchisee.
56 Pingree further testified that following the first week of picketing. Re-
spondent Kallmann had "pulled the drapes and you couldn't see her .... "
sweeping the floor. Like Porter, however, Turner did not
testify whether Kroeger had been alone when performing
these tasks or whether restaurant employees had been with
him. Turner also testified that she had observed Kyle seat-
ing people, taking cash, and directing the busboys by "tak-
ing to a busboy and pointing over there and the busboy
would go over there."
While the foregoing testimony tends to contradict that of
Mesker and Kallmann that Respondent Love's personnel
had not performed the duties of employees while at the
Hayward restaurant, certain other testimony tends to con-
firm that of Mesker and Kallmann. Thus, Pingree testified
that she had observed Ramsey at the wheel 7 and showing
waitresses how to serve the food. Hansen testified that in
addition to having observed Ramsey standing alone at the
podium-straightening out menus, arranging the podium,
and writing with a crayon-she had also seen Ramsey
standing in front of the wheel talking to the cooks who, of
course, did have work contacts with waitresses. Bishop tes-
tified that he had observed Ramsey working the cash regis-
ter, on which employees needed to be trained, as evidenced
by Turner's testimony that she had previously trained em-
ployees to operate it, but he did not claim that she had been
alone at the time. Finally, Roy testified that "most of the
time I saw [Ramsey] was with waitresses, where the wait-
resses' station is, and many times I saw her cleaning around
in there where the salad bar was and like telling the wait-
resses something, like showing the tables or something like
that." Like Hansen, Roy testified that she had observed
Ramsey at the hostess' stand, but she described Ramsey as
having been "lust standing there."
On rebuttal, the General Counsel produced three wit-
nesses who had been hired by Respondent Kallmann: Tot-
man. Dawson, and Blaylock. Both Totman and Dawson
claimed to have been interviewed and hired by Kyle. appar-
ently at the same time," without having seen or met Kall-
mann until after they had commenced working fr Respon-
dent Kallmann. Kyle did not dispute having spoken with
them when they had filed their applications. Indeed, he
conceded that when Dawson had applied for employment,
he had noted on her application certain information sup-
plied by her. 9 However, Kallmann testified that he had
later telephoned Dawson and "she could work the hours
that I needed and she had experience as bartender, so I
hired her," Kallmann further testified that he had hired
Totman to replace Blaylock, when the latter, having been
accepted for employment and having gone through the Oc-
tober 17 to 19 training session, had declined to cross the
picket line. thereby necessitating her replacement. Thus, ac-
cording to Kallmann, Totman had not been hired until af-
ter the picketing had commenced on October 21. In resolv-
' A circular object, suspended from the ceiling. over the counter separat-
ing the kitchen from the public area of a restaurant and on which customer
orders are hung by waiters and waitresses so that, by spinning the wheel, the
cooks can ascertain the items which have been ordered.
15 Of course, if there had been a hiatus between these two events (interview
and notification of hiring) then it cannot be inferred that Kyle had notified
these two employees that they had been hired without consultation with
Kallmann.
59 Some applicants had merely left their completed applications without
waiting to speak with Kallmann. Kyle placed Dawson as having been among
this group of applicants.
102
LOVE'S BARBEQUE RESTAURANT NO. 62
ing the dispute as to who had hired Totman and Dawson. it
is noteworthy that neither of them testified as to the date on
which they had been interviewed. Dawson's application
bears the date October 13. Kyle testified that it had been on
that date that he had spoken with her. Seemingly, therefore.
had she been hired by Kyle in the manner that she de-
scribed, Dawson would have been among the employees
who had undergone the 3 day training session. Yet, she did
not testify to having been among the group that had partici-
pated in that training. Further, the General Counsel sub-
penaed an extensive number of documents from Respon-
dent Kallmann, among which were the "payroll and
personnel records, showing the names . . . of all persons
employed" at the Hayward restaurant on October 20. Dur-
ing the fifth day of the hearing, the General Counsel se-
lected and confronted Kallmann with a set of timecards,
securing Kallmann's agreement that these were the time-
cards of the employees hired originally by Respondent
Kallmann. Had Dawson been hired following her inter-
view, as she claimed, her card should have been among that
group of timecards presented to Kallmann by the General
Counsel. Yet, it was not.
Similarly, while Totman did not specify a date on which
she had been interviewed, her application bears the date
October 17. That is the first date on which the training
session had been conducted. But, as was the case with Daw-
son and in contrast to other employees whose applications
also bear the date October 17 (Beverly Steward, Denise
McDonald, Deborah Davis, David Dugan), no timecard
was presented for Totman. Nor did she claim to have par-
ticipated in the training session which had commenced that
day and which had extended over the following 2 days.
though Steward, McDonald, and Davis had apparently
done so, since their timecards were among those shown to
Kallmann.60
Blaylock, the third employee called by the General
Counsel who had been hired by Respondent Kallmann.
gave testimony in three specific significant areas. First, she
testified that after lunch on Tuesday, October 18, Ramsey
had distributed craft books and had reviewed their con-
tents, page by page, saying that "this is the way Love's does
things and we are to follow the book." According to Blay-
lock, craft books were given to all waitresses, all hostess-
cashiers and all bartenders.
The second facet of Blaylock's testimony pertained to an
incident where a woman, apparently Clotilde Roy. had spo-
ken to Ramsey and then had left the restaurant. According
to Blaylock, Ramsey had then told the group being trained
"that she knew the girl from previous Love's training and
she worked here before the store had closed with the Union.
The girl wanted to know if she could come and have her job
back and Betty told her no, because this wasn't a Union
shop anymore, it was non-Union, they had hired all new
employees." Not only was there no corroboration of Blay-
lock's account of what Ramsey had purportedly said that
afternoon,"' but Roy's own description of her inquiry con-
'0 Dugan did not participate in the training sessions. but he was only a
part time employee.
61 Respondents produced Linda Bodas, originally a waitress and later a
hostess-cashier for Respondent Kallmann. who testified that she had been
present at these training sessions and who denied that Ramsey had made the
cerning employment at the restaurant casts doubt on Blay-
lock's description.
Roy testified that after entering the restaurant, she had
observed Ramsey in the dining room with 10 or 12 other
women and that she had spoken with Ramsey privately,
inquiring if Respondent Kallmann was taking applications.
Ramsey, according to Roy, had replied that Respondent
Kallmann was taking applications and that Roy could ob-
tain one and talk to the new owner in the manager's office if
she so desired. According to Roy, "I said, yes, I will, and
then she said, okay, it was nice to talk to you and probably
see you around, and that's all." 62
The final subject about which Blaylock testified specifi-
cally pertained to comments made about the nonunion sta-
tus of the restaurant, assertedly by Respondent Love's offi-
cials, during the training sessions. She claimed that on
Monday-in the presence of the bartenders, cocktail wait-
resses, hostess-cashiers, and waitresses-Kallmann had re-
viewed the history of the business, had mentioned Respon-
dent Love's restaurants at other locations, and had said
"that the restaurant used to be Union and now it was non-
Union, that's why we were there." Similarly. testified Blay-
lock, that afternoon, when speaking to the group, Kyle had
also reviewed the history of the business, saying "you might
well know that Karl mentioned the fact that we are non-
Union, we are a non-Union store now, but it was Union
before. He said we hired all new employees and this is the
way we are going to run the Love's now-he stressed on
'we." According to Blaylock, the following morning, Ram-
sey had begun to train the waitresses and hostesses, during
which time she too had told the employees that the restau-
rant "used to be a Union store and it had went under re-
modeling, they closed for remodeling purposes and it was
now a non-Union shop and they had hired all new employ-
ees."
Not one other witness was called to corroborate Blay-
lock's testimony concerning these remarks. Kyle testified
that he had addressed the employees on Monday and that,
during that address, he had described Respondent Love's
history. However, both he and Kallmann, who had been
present when Kyle had spoken to the group, denied specif-
ically that Kyle had made such remarks pertaining to the
Union during the course of his address. Both also denied
specifically that Kallmann had made the comments con-
cerning the Union that Blaylock had attributed to him.
Further, Kyle testified that he had heard Ramsey's speech
to the employees on Tuesday morning. He denied specifi-
remarks that Blaylock attributed to her concerning Ro) Yet,. as the General
Counsel points out in his brief. there is doubt as to whether Bodas had even
been present at these training sessions in light of the fact that, as had been
true with regard to Dawson and Totman, no timecard was produced show-
ing that she had worked on October 17-19.
62 To finish this sequence, it appears from her description that Roy had
then spoken with Sebben, who had given her an application and, when Roy
had said that she had worked as a hostess-cashier before, had said that "it
was good" that she had expenence. According to Rot. Sebben had then
asked where she had worked and when Roy had replied at the Hayward
restaurant for almost 2 years, Sebben had said something to the effect that
:he new crew was already filled, but that she could complete an application
and leave it and "if sometime later we need somebody we can give you a
call." Roy testified that she had taken the application with her. had com-
pleted it and. on the day that the restaurant had reopened, had lelt it with a
hostess at the restaurant. asking her to give it to the manager.
103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cally that she had made any of the above-described com-
ments which Blaylock claimed that Ramsey had made.
4. Comparative operations
Kallmann testified that he alone has been responsible for
all personnel decisions at the Hayward restaurant since Re-
spondent Kallmann had become the operator there, al-
though he has delegated some of his authority to Assistant
Manager Sebben and Head Waitress Beverly Stewart. Kall-
mann testified that he was responsible for and had posted
some labor relations policies. Introduced were three docu-
ments which Kallmann acknowledged having posted and
which list instructions for employees to follow. Two of them
are printed on Respondent Love's letter head and make no
mention of either Respondent Kallman or of Kallmann, by
name. 6 ' The third is typed on Respondent Love's memoran-
dum form, but states that it is from Kallmann to "All Em-
ployees." It pertains to "General Employment Policies." On
it are typed a list of rules with respect to the general catego-
ries of timecards, breaks, shift-trading, meals, and the
lounge.
Respondent Love's provides a group health, major medi-
cal health, and life insurance program for its employees, as
well as a participatory long term disability program for any
employee who make more than $800. Respondent Kall-
mann provides only life insurance and only for approxi-
mately 10 employees who were chosen for coverage by
Kallmann. Both Respondents use Walter Kaye Insurance
Agency which had an office in Los Angeles. However, it is
one of the primary insurance brokers servicing the food
service industry in the United States. Kallmann testified
that he had become familiar with the firmly by virtue of the
fact that his father had used it at the Fresno restaurant of
Respondent Love's. Whereas Respondent Love's and the
restaurants that it operates in California bank at Security
Pacific National Bank, Respondent Kallman, though it ob-
tained its initial loan from the Fresno branch of that bank,
maintains its commercial bank account at Crocker National
Bank because of the proximity of its Hayward branch loca-
tion to that of the Hesperian Boulevard restaurant.
Respondent Love's wage rates are determined by a com-
mittee which normally meets on a quarterly basis and sets
ranges, subject to Mesker's approval, within which individ-
ual restaurant managers can set the specific rates for par-
ticular employees. This process, testified Mesker, has no
application to Respondent Kallmann which, both he and
Kallmann testified, sets its own wage rates for employees at
the Hayward branch. Employees at Respondent Love's res-
taurants receive 2 weeks' paid vacation at the end of I year
of employment, 3 week's paid vacation after 5 years of em-
ployment, and 4 week's paid vacation after 5 years of em-
ployment. It is Respondent Kallmann's intent to provide 1
weeks' vacation after I year of employment, 2 weeks' vaca-
6The instructions contained on one of these documents concerns the
opening and closing duties of the hostess (e.g.. "Turn on light and music,"
"Try and have everything clean before you leave!"). None of these matters
are listed in either the operating manual or the craft book for hostesses. The
second document lists the sidework duties of waitresses upon closing (e.g.,
"Make sure everything is wiped clean" and "Clean ice tea machine") Again,
none of these matters are in the operating manual or waitresses' craft book.
tion after 2 years employment, and 3 weeks' vacation after
5 years employment. Kallmann testified that it had been his
decision to establish this vacation policy for Respondent
Kallmann.
With respect to meals for employees at the Hayward res-
taurant, Respondent Kallmann allows employees to pur-
chase them at half-price for all items, save steak and
shrimp, under a policy established by Kallmann. Respon-
dent Love's policy was set by Mesker and under that policy
all employees, except cooks, pay full menu price for food
consumed in company-operated restaurants. Grievances at
Respondent Kallmann are the responsibility of Kallmann,
as manager, and, similarly, at Respondent Love's restau-
rants, they are ultimately the responsibility of the manager.
With regard to hours of operation. Mesker testified that
Respondent Kallmann must stay open 7 days a week, ex-
cept for Thanksgiving and C('hristmas Day, from 11 a.m.
until II p.m., though on Friday and Saturday nights it must
remain open until midnight. According to Mesker. those
hours can be adjusted, either extending or reducing them,
to account for local business conditions. However, Mesker
agreed that he did not believe that those hours of operation
were included as a specific term of the franchise agreement
with Respondent Kallmann. That is the fact. Moreover,
Kallmann testified that when Respondent Kallmann had
taken over the Hayward restaurant, there had been a sign
on the door specifying the hours of operation as I I a.m. to
10 p.m., but that he had taken it off, had extended the hours
to I I p.m., and then later had changed the closing time
back to 10 p.m., all without seeking Respondent Love's ap-
proval.
There is no evidence that any interchange or temporary
transfers of employees have occurred between Respondent
Kallmann's restaurant and other restaurants operated by
Respondent Love's franchisees or Respondent Love's di-
rectly. Although a few employees who formerly worked at
other restaurants operated by Respondent Love's have
worked for Respondent Kallmann, the record disclosed that
these were employees with whom Kallmann had been fa-
miliar by virtue of his past association with Respondent
Love's and that, based on that familiarity, he had chosen to
hire them. There is no evidence that Respondent Love's has
ever participated in such decisions or that it has ever noti-
fied Respondent Kallmann of the availability of employees
for hire.
Although Respondent Kallmann must sell all items listed
on Respondent Love's menu, it has considerable discretion
as to the prices that may be charged for these items. Thus,
Respondent Love's has established three sets of prices for
its menus and Respondent Kallmann is free to select which-
ever of these price ranges it wishes to charge. More signifi-
cantly, it may disregard these sets of prices altogether and
set its own prices for the items listed on the menus. Further,
while Respondent Kallmann may purchase these menus
from Respondent Love's, it is also free to purchase them
from any' printer so long as the format is consistent with
that of Respondent Love's restaurants. Thus, in being able
to purchase menus from any printer. Respondent Kallmann
can set prices of which Respondent Love's has no knowl-
edge.
104
LOVE'S BARBEQUE RESTAURANT NO. 62
With regard to suppliers, Kallmann testified that he se-
lected the purveyors and that Respondent ove's did not
require that Respondent Kallmann use any particular sup-
pliers. Respondent Kallmann used many of the same sup-
pliers as had been used when Respondent Love's had oper-
ated the Hayward restaurant. However, this appears to
have resulted simply from the fact that it was these suppli-
ers with whom Kallmann had become familiar during his
past affiliation with Respondent Love's. There is no evi-
dence that Respondent Love's dictated his choice of suppli-
ers. Further, although Respondent Kallmann must carry
certain products bearing Respondent Love's label, Kall-
mann testified that he was free to purchase them from sup-
pliers of his choice.
Mesker testified that managers at restaurants operated
directly by Respondent Love's must file a number of re-
ports, e.g., daily bank deposit slips, weekly lists of invoices
of vendors from whom products are purchased. and weekly
managers' reports. Respondent Kallmann is not required to
submit any of these reports to Respondent Love's. Instead.
it need only submit weekly summary reports- showing the
daily sales figures, subdivided into various categories, and
the amounts to be paid to Respondent Love's for royalty,
equipment lease, etc. - and, attached thereto, the daily sales
reports, containing the daily sales figures in these catego-
ries, the register totals, and cash amounts paid. So far as the
record discloses, Respondent Kallmann makes no report to
Respondent Love's concerning labor costs. Moreover. while
Respondent Love's employees are paid on a weekly basis.
Respondent Kallmann pays its employees on a semi-
monthly basis, with its payroll, as well as other financial
documents. being prepared with the aid of a certified public
accountant in Hayward selected by Kallmann to perform
such work.?
Analysis
Respondent Kallmann has been an employer within the
meaning of Section 2(2) of the Act, was it nevertheless oper-
ated in reality as an alter ego of Respondent Love's? Fifth.
if Respondent Kallmann has independent employer status
and has not been an alter ego, did Respondent Love's,
nonetheless, exercise sufficient control over the restaurant's
operations to qualify as a joint employer of the emplosees
working there on and after October 20? Sixth. if there has
been no joint employer relation between Respondents, did
Respondent Kallmann refuse to hire former employees of
the Hayward restaurant fior considerations unlawful under
the Act and was it, therefore, a successor of Respondent
Love's. obliged to continue recognizing the Union as the
representative of the employees employed there?
Seventh, did the conduct of the Kallmann and Sebben
during the early stages of the picketing violate Section
8(a)(1) of the Act? Finally, if Respondent Kallmann vio-
lated the Act in any manner, has the volume of its opera-
tions been of sufficient magnitude to warrant the assertion
to jurisdiction over it based upon the Board's standard for
asserting jurisdiction over retail operations.
Before turning to consideration of these issues, it is im-
portant to note that during the course of this proceeding, I
felt that a number of witnesses abandoned any effort to
accurately describe events as they had taken place and
were. instead, making every effort to tailor their accounts of
events to buttress the positions of the sides that the) fa-
vored. Thus, while I felt that union representatives Martin
and Branco. Vice President Mesker" and former employees
Kruger. Pingree, and Hansen were attempting to testify
honestly, I felt that other witnesses, to a greater or lesser
extent, were not being completely candid, even though. in
some cases, their testimonies were not contradicted. "A
trier of fact need not accept uncontradicted testimony as
true if it contains improbabilities or if there are reasonable
grounds for concluding that it is false. It is well settled that
a witness' testimony may be contradicted b circumstances
A. Introduction
While there is a degree of overlap in the factual setting
underlying the issues presented in the instant case, the is-
sues, themselves, are susceptible of consideration in the fol-
lowing order. First, will the evidence establish that Respon-
dent Love's closed the Hesperian Boulevard restaurant for
reasons unlawful under the Act? Second, if not, did Re-
spondent I.ove's observe the bargaining obligation imposed
upon employers who close a facility where its employees
are represented?
Third, if no violation occurred with respect to the clo-
sure, was Respondent Kallmann truly an independent em-
ploying entity or did Respondent Love's, regardless of its
motive, retain so much control over Respondent Kall-
mann's operations that the latter has not been an employer
within the meaning of Section 2(2) of the Act? Fourth. if
Although the franchise agreement provides for a 0.4 percent reduction
in the royally which Kallmann has to pay because he "elected not to avail
himself of accounting services heretofore provided by the Franchisor." Mes-
ker testified that this clause has not been revised since Respondent Love's
ceased to provide such service to franchisees and that, in fact, Respondent
Kallmann could not have elected to use Respondent Love's accounting ser-
vice.
*' Mesker was called initially as an adverse witness. While a review of the
record discloses some testimony that appears at odds with other evidence
presented by Respondents. it was my impression that he had not always fully
comprehended what information was being sought from him while he was
testifying as an adverse witness, with the result that some of his answers
appeared to have been based upon his own mpression of what was wanted,
rather than. as shown by the arguments made. the information that was
sought Even for the ablest counsel, the technique of asking questions of an
adverse witness is one which must be done carefully inasmuch as the witness
is not familiar with counsel's technique of asking questions, counsel may
have less than perfect knowledge of the facts about which the witness is
testifying. and lack of familiarity frequently gives rise to misunderstandings
One example of such a misunderstanding by Mesker is described in footnote
29. supra. Seemingly, another example of this occurred when Mesker testified
about the decision to close. Asked if Respondent IAve's had ever wanted to
terminate the contract with the Union, he replied "inasmuch as we ulti-
mately reached a decision to close the restaurant which would result in the
termination of the contract, yes." The question that elictted this response did
not refer to a specific contract and two collective-hargaining agreements
were referred to during the course of the heanng: the original one that had
governed conditions at the restaurant for most of the time that it had oper-
ated and the successor agreement. negotiated dunng the summer. Though
the General Counsel and the Charging Parts xboth argue that Mesker was
referring to the original contract, neither the question nor the answer so
confined the matter. In any event, as discussed on page 5, intr, it is not the
making of a decision that is the material issue, rather, it is the emploer's
openmindedness and willingness to bargain about that decision that is the
significant issue in determining whether there has been a violation.
105
)DE CISIONS OF NATIONAL LABOR RELATIONS BOARD
as well as by statements and that demeanor may be consid-
ered in such circumstances. [Footnote omitted.]" Operative
Plasterers' & Cement Mason.' International Association, Lo-
cal 394 (Burnham Brothers. Inc.), 207 NLRB 147 (1973). Of
particular note in this regard were Porter and Turner.
Porter displayed eagerness to testify in a manner injuri-
ous to Respondents' position. As a result, his testimony col-
lided with statements in his own pretrial affidavit with re-
spect to significant matters. For example, even though his
pretrial affidavit stated that he did not recall any manage-
ment personnel having ever said that Respondent Love's
was attempting to get rid of the Union, Porter testified that
in August, then Assistant Manager Washer had commented
that he (Washer) felt that the Union would go. This testi-
mony was given in response to a question on cross-exami-
nation as to whether it were not true that no one in Respon-
dent Love's management had even said anything about
trying to get rid of the Union. The question was obviously
designed to secure an answer favorable to Respondent
Love's and it appeared equally obvious that Porter was at-
tempting to avoid giving such an answer.
In an effort to explain the inconsistency, Porter claimed
that he had promised Washer, a personal friend, not to
repeat the remark so long as Washer was employed by Re-
spondent Love's. The difficulty with this explanation is that
there is no evidence that Washer's employment with Re-
spondent Love's had survived that September closure of the
Hayward restaurant. Indeed, it appears to have ended even
prior to that time. Yet, Porter's affidavit had been taken in
November. Accordingly, any promise conditioned on
Washer's employment status with Respondent Love's
would not have been effective at the time that Porter had
given his affidavit. Nor did Porter mention Washer's pur-
ported comment during direct examination, although coun-
sel for the General Counsel's examination was painstak-
ingly thorough and designed to elicit every instance where
comments had been made to Porter regarding the Union.
The asserted Washer comment was not the only illustra-
tion of Porter's tendency to embellish his testimony in a
manner that proved to be inconsistent with his affidavit. A
similar inconsistency developed when Porter claimed that
during his interview with Kallmann, he had raised the sub-
ject of the Union, assuring Kallmann that despite past
problems, the restaurant could be successfully operated
with a Union. In his affidavit, Porter had stated that, during
the interview, "the Union was not mentioned at all." To
explain this inconsistency, Porter maintained that the
Board agent, taking his affidavit, had only asked if Kall-
mann had said anything about the Union during the inter-
view. Though an ingenious explanation, it was at odds with
both Porter's demeanor at the hearing and with his own
account of how he had reacted during the events which
occurred in the instant matter. For, Porter was not a reti-
cent individual, reluctant to voice his opinions and posi-
tions. To the contrary, he appeared to be quite outspoken,
as his January run-in with Choy demonstrates. Thus, it
hardly seems likely that he would have answered a question
concerning whether Kallmann had mentioned the Union to
him without having volunteered that he had raised the topic
during the interview, had he done so.
Moreover, he claimed that Kallmann had promised to
call him when Respondent Kallmann had reached a deci-
sion as to whether or not to hire him, even though Porter's
own pretrial affidavit recites that Kallmann's promise had
been to contact Porter only were he to be hired. Ihile a
seemingly minor matter, the theory underlying the com-
plaint is that Respondents had been acting with stealth and
cunning to avoid continued representation of the restau-
rant's employees. One element of this theory is the refusal
to rehire any of the employees who had worked there prior
to the closure. In describing this incident, Porter appeared
to be attempting to augment this theory by testifying in a
manner that would give rise to the normal suspicion gener-
ated by a promise made and broken without apparent ex-
planation. In so doing, he overlooked the fact that at the
time, Kallmann had been attempting to handle all of the
matters involved in opening for business. Having inter-
viewed over 100 applicants for approximately 30 positions,
it hardly makes sense that Kallmann would gratitiously be
volunteering to take time to notify those who were not to be
hired of their rejections.
While Porter's testimony tended to dwell on comments
purportedly made by and to Respondent's officials. Tur-
ner's testimony took a somewhat different tack. She ap-
peared to be concentrating on developing facts sufficient to
establish that Respondent Love's had reason to be hostile
toward the Union and did, in fact, habor such hostility. In
her haste to achieve this apparent end, she testified in a
manner contrary both to the accounts of other witnesses
called by the General Counsel and to the objective realities
of the very situations which she described. An example of
the former was her claim that she had been present when
Martin and Branco had met with Choy. Neither Martin nor
Branco supported her testimony in that respect.
Her testimony that she had been present during that
meeting, appeared to have been designed to create a vehicle
for testifying adversely to Respondent love's position.
Which, indeed, Turner did do with regard to that meeting.
For, she claimed that during the meeting, Choy had denied
ever having complained about employees going to the
Union with their problems and had denied ever having said
that he wanted or intended to replace the existing employee
complement with one of his own choosing. This was not
corroborated by Martin and Branco. To the contrary, Mar-
tin testified that Choy had acknowledged having made
those remarks and, in effect, had agreed to cease making
them.'*
Further. with respect to the one specific incident involv-
ing another employee which Turner did describe, that em-
ployee-dishwasher Gutfield--was never called to corrobo-
rate Turner's account of what Choy had assertedly said. It
is, of course, accurate that corroboration, when possible, is
not a condition precedent to crediting the testimony of a
i While it might be argued that Turner may have been referring to a
separate meeting, she did testify that Martin and Branco had been in attend-
ance at the meeting during which Choy had purportedly denied having made
these comments. Neither Branco nor Martin described a second meeting
with Choy, though Martin was called upon to testify in detail regarding his
contacts with Respondent Love's during 1977. Moreover. it is unlikely that
Choy would willingly acknowledge during one meeting having made com-
ments that he would deny having made during another meeting.
106
LOVE'S BARBEQlE RESTAAURANT NO. 62
witness. See C. P. & W'. Printing Ink Compan. Inc.. 238
NLRB 1483 (1978). Yet, the unexplained failure to produce
a corroborating witness does allow an inference to he
drawn that if called, that witness would not have supported
the uncorroborated testimony given. See, e.g.. Golden Slate
Bottling Comrpav. Inc.. fir0nerlv Pepsi-(Cola Bottling (tom-
pany of Sacremento v. N,.L.R. B. 414 U.S. 168. 174 (1973),
and cases cited therein.
In another area, most of the employees described what
officials of Respondent Love's had been doing following the
October 20 restaurant reopening in a manner that was not
inconsistent with Respondents' position that they had been
training Respondent Kallmann's newly hired employees.
Only Turner and Porter went beyond this. In the most ex-
treme testimony, given in the very broadest sweep. the,
described Respondent love's officials as having performed
virtually every act that employees could perform in the res-
taurant. Not only was their testimony in this respect uncor-
roborated, but it intended to be contradicted by Pingree's
testimony that following the first week of picketing, Re-
spondent Kallmann had "pulled the drapes" of the restau-
rant, with the result that the employees could not see what
Ramsey and the other officials of Respondent Love's had
been doing.
Had Respondents been attempting to operate as a dis-
guised continuance of Respondent Love's. as the General
Counsel and Union alleged, it hardly seems likely that they
would have openly employed Respondent love's supervi-
sors, known to the employees, to perform the very work
that those employees had been performing prior to the clo-
sure. Indeed, wholly apart from that consideration, it seems
most unlikely that highly paid supervisors would be em-
ployed to perform work for which there were numerous
applications on file with Respondent Kallmann. Certainly
Respondents, even if their motives had been impure, would
have gained nothing by so employing Respondent Love's
supervisors. Conversely, by making it appear that Respon-
dent Love's, through its supervisors, had been continuing to
operate the restaurant, Porter and Turner could support the
allegation that there had been a violation of the Act.
Both Porter and Turner described Ramsey as having
been upset on the day of the closure. In so doing. they
appeared to be attempting to create the impression that
Ramsey had been reacting to evident wrongful conduct by
Respondent Love's and had become emotionally dis-
traught. Yet, this simply makes no sense Ramsey had not
lost her job. There is no indication in the record that her
relationship with the employees had been one of sufficient
closeness that she would have become emotional as a result
of any wrong directed at them.
Moreover, there is a singular absence of corroboration
for Porter and Turner's account that Ramsey had been up-
set that day. Porter described Ramsey as having been "sniv-
eling" when he had spoken with her on the telephone that
morning. Both he and Turner described her as having been
crying and upset when they had been admitted to the res-
taurant that afternoon to obtain their checks. Yet. seem-
ingly other employees would have witnessed Ramsey's tears
that day, had they been shed. But, none so testified, even
though others did describe what had occurred on Septem-
ber 16 and even though four of them referred specifically to
Ramsey during their descriptions of the events of that day.
In short, Turner and Porter's insertion of a tearful Ramse',
into the events of September 26 appears to he no more than
an added effort to shore the case tfr a violation b creating
the impression that Ramsey had been upset hb the wrong-
doing of Respondent Love's.
In sum. I do not credit either Porter or I urner. Nor do I
credit the testiomony of Tara Blaylock. who. "like air-
breadth Harry in a Drurv Lane melodrama.'T - suddenly
appeared as the General Counsel's final rebuttal witness to
provide testimony in several new areas that lent significant
support to the General C'ounsel's prima li(c:t case. I-or ex-
aniple. she testified that during her emplosyment inlteri, es.
Kallmann, Slluddenly and graluitous[ . had njected a de-
scription of the restaurant's background wkhich. conxe-
nientl. had included the assertion that ahile it had been
unioniied, this would no longer be the case "since he Is
hiring new people, he is going to go non-l'nion.' Other
witnesses also described what had been said to them during
their interviews with Kallmann. Not one )of them described
a similar comment having been made by Kallmann. So tar
as the record discloses, there was nothing so uiiLque iabout
Blaylock's interview that it would have been naturail or
plausible for Kallmann to hasve directed such a. remark to
her. 'To the contrary, it seems most likely that it', s is con-
tended by the General Counsel and n'lion, Respondents
had been attempting surreptitiously to continue operaling
the restaurant on a nonunion basis, as a disguised continu-
ance of Respondent Love's, Kallmann would so willingl
haste olunltceredl such damaging information. tor no appar-
ent reason, to a total stranger whose union impathies. so
far as the record discloses. had been unknown to him at the
time.
A similar consideration governs an assessment of Bla,,-
lock's uncorroborated testimony that during the first 2 days
of the training session. arious officials of both Respondents
had made comments to the effect that the employees had
been hired as part of an effort to switch the status of the
restaurant from one where the employees were represented
by the Union to one where the employees would not be
represented. It appeared that in advancing this testimony.
Blaylock. like Porter and Turner. was making an effort to
construct a case against Respondents bh creating conllersa-
tions purely out of whole cloth. F-or, accepting argiun(b, the
contention that the entire transaction between Respondents
was no more than a carefully crafted plan designed to ex-
clude the Union as the representative of the restaurant's
employees, it hardly makes sense for Respondents to admit
as much publically in front of a large group of' potential
witnesses, all of whom were relative strangers and whose
union sympathies were unknown to Respondents. More-
over, Blaylock's own description of the seriatim admissions
made by the various officals who addressed the assembled
employees seemed highly artificial and contrived. although.
of course, it lends good support for estahlishing an unfair
labor practice, if credited.6
67 Sherman Distributing Compan, In d;a Schroeder Dsribhuing (r,m
pany. 171 NLRB 1515, 1526 (1968).
i* So ohious was the arlficiahit of Bl aslak' lestmon in this regard Ithil
even she appeared to preceive as much and she alempiedl Io suppth in expla-
nation ior whs Ramse) would hke repeated whoa Kallmann and Klile pur-
I( nllnue'd)
107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aside from the absence of any support for Blaylock's
descriptions of what had been said to the newly hired em-
ployees during the training session, Clotilde Roy's testi-
mony concerning her conversation with Ramsey tends to
refute Blaylock's account that following that conversation
with Roy, Ramsey had rejoined the group and had an-
nounced that she had refused to permit Roy to have her job
back "because this wasn't a Union shop anymore, it was
nonunion, they had hired all new employees." Roy's testi-
mony, of course, was to the contrary. She testified that
Ramsey had said that Respondent Kallmann was taking
applications and had invited her to speak with the new
manager if she so desired.
Of course, it is possible that Ramsey had said one thing
to Roy, to avert Roy's suspicion, and then had said the
converse to the newly hired employees. Yet, this is a some-
what inconsistent scenario. For, if Respondents had in-
tended to avoid hiring the restaurant's former employees, it
seems likely that Ramsey would have immediately discour-
aged Roy from even filing an application. Indeed, a pretext-
uous excuse was readily at hand, since the newly hired com-
plement of employees was then being trained. It would
have been a simple matter for Ramsey to have merely
pointed out to Roy that all positions were taken. On the
other hand, if her comments to Roy had been designed to
avoid generating suspicion and to construct a plausible de-
fense to not hiring her, by simply permitting her to apply
and then, as happened, not hiring her, it hardly seems likely
that Ramsey would them promptly destroy the basis for
this somewhat sophisticated defense by immediately admit-
ting the unlawful underlying motive to a group of relative
strangers. See, e.g., Los Angeles Marine Hardware Co., Divi-
sion of Mission Marine Associates, Inc.. et al., 235 NLRB
720, 733-734 (1978).
Therefore, as was the case with Turner and Porter, I do
not credit Blaylock. Neither do I feel that Wadsworth and
Logan were fully candid regarding Kallmann's remarks
during their interviews. Wadsworth made this obvious by
his reluctance in admitting that Kallmann had offered him
a position, that of busboy, 9 and that he had rejected the
offer. Moreover, inasmuch as Logan had been interviewed
on the same occasion as Wadsworth, the latter's concession
regarding Kallmann's offer casts doubt on Logan's testi-
mony that Kallmann had refused to offer him a position.
Surely, since Logan and Wadsworth had come to the res-
taurant together and had applied for the same positions on
their applications, it seems unlikely that, for reasons unlaw-
ful under the Act, Kallmann would have been willing to
portedly had already said by testifying, "Ken and Karl weren't around right
then so I guess she didn't know that they had already told us." Of course,
Ramsey is the supervisor who, were Turner and Porter to be believed. had
been reduced to tears by Respondent Love's closure of the restaurant. Yet.
Blaylock portrays her as, shortly thereafter, having joined the antiunion
bandwagon by admonishing employees not to become involved with the
Union since Respondents had a master plan to preclude it from representing
employees at the restaurant.
i9 Inasmuch as the bargaining unit had included busboys, as well as cooks
and dishwashers, it would make no difference in the General Counsel's the-
ory what position Wadsworth had been offered. The fact that he had been
offered a bargaining unit position at Respondent Kallmann weakens the
argument that the latter had been unwilling to hire any of the former em-
ployees of the restaurant.
offer a position as busboy to one, but not the other. Indeed,
Logan omitted any mention of a possible position as bus-
boy, claiming, instead, that Kallmann had mentioned only
a possible dishwasher's position. In the final analysis, it ap-
pears that Logan, like Wadsworth, had been simply unwill-
ing to accept employment as a busboy, but, unlike Wads-
worth, had not been willing to admit that fact.
Similarly, neither Dawson nor Totman were impressive
when each testified that she had been hired by Kyle. Nor
does the content of their testimonies conform to other cir-
cumstances in this proceeding. For, had Dawson been hired
when she gave her application to Kyle on October 13, she
seemingly would have been included in the group trained
on October 17 19. Yet, she did not testify that she had
participated in this training. Nor was her timecard among
those selected by the General Counsel from among those
obtained as a result of his subpoena for the timecards of all
employees included in the initial employee complement.
Consequently, there is a very real basis for doubt that Daw-
son had even been hired prior to the opening of the restau-
rant by Respondent Kallmann.
Of course, it could be that she had been notified of her
hire on a date later than October 13. It could even be that
notification of her hire had been given to her by Kyle. If so,
this would not be inconsistent with Kallmann's testimony
that he had been the one to select the employees who were
to be hired by Respondent Kallmann. For, if, as the Gen-
eral Counsel argues, it can be inferred by virtue of Kyle's
notification that he had been the one to select Dawson for
employment, it is equally inferrable that Kallmann had
made the selection and Kyle had served merely as the con-
duit for its communication to Dawson.
In a like vein, though Totman did not testify about the
date on which she had been interviewd by Kyle, her appli-
cation bears the date October 17. Presumably, therefore, it
had been on that date that she had been interviewed. If so,
however, she should have been a participant in the training
session as were other applicants interviewed and hired that
day. Yet, a timecard showing that she had been in attend-
ance was not handed to Kallmann and, further, Totman did
not claim that she had attended the training session. More-
over, Kallmann's account of how Totman came to hire was
uncontroverted. Thus, he testified that when Blaylock had
refused to cross the picket line to work, he had needed a
replacement and Totman had been the applicant hired to
replace Blaylock.
Consequently, I do not credit the accounts of Dawson
and Totman regarding how they came to be hired by Re-
spondent Kallmann and I find that the evidence will not
support a finding that it had been Kyle who had been the
one to hire them.
Nor do I credit Bishop's account that 4 days before the
restaurant had opened, he had filed an application with an
individual who had identified himself as the manager and
who, Bishop testified, he had later learned was Sawyer. In
his pretrial affidavit, Bishop made no mention of that indi-
vidual having identified himself as the manager, but merely
stated that "I went up to the manager, he was also in the
restaurant the day I picked up my check." More signifi-
cantly, aside from Bishop's testimony, it was undisputed
that Sawyer had not even arrived at the Hayward restau-
rant until the Saturday after Respondent Kallmann had
108
LOVE'S BARBEQUE RESTAURANT NO. 62
opened, when he had replaced Kyle as head of the training
team. In fact, though the affidavit had been taken during an
investigation begun after Sawyer had been at the restau-
rant, Bishop still did not identify Sawyer by name in the
affidavit. In short, Bishop's testimony appears to be no
more than another effort by a witness to link the two Re-
spondents by embellishing descriptions of events.
In addition to the foregoing witnesses who appeared on
behalf of the General Counsel, I do not credit Kallmann's
testimony with respect to his May meeting with Mesker and
with regard to the manner in which employees were hired
to staff Respondent Kallmann's initially. When testifying
concerning the latter subject, Kallmann appeared nervous
and, in both areas, his testimony was at odds with other
evidence. Thus, while he claimed to have been the only
official to have interviewed applicants, his own assistant
manager controverted that testimony by testifying that he,
also, had interviewed applicants. Moreover, it is clear that,
at least with regard to Dawson, Kallmann had not been
reluctant to hire an applicant without having personally
interviewed that person. Moreover, Kallmann gave testi-
mony at odds with his affidavit as shown, for example,
when he recited a reason for not hiring Wadsworth and
Logan that was inconsistent with his testimony that there
had been no openings for them at the time that they had
applied.
B. The Motivationfor Respondent Love's Closure of the
Restaurant
The General Counsel and the Union contend that in clos-
ing the restaurant on September 21 and in terminating all
of the employees then employed there, Respondent Love's
acted to dispose of the Union as the representative of the
employees working there. Obviously, the issue presented is
one where "the pivotal factor is motive." N.L.R.B. v. Lip-
man Brothers, Inc., 355 F.2d 15, 20 (2d Cir. 1966). In assess-
ing the evidence presented in the instant case, several fac-
tors emerge which operate to negate the contention that
Respondent Love's acted on the basis of a motivation un-
lawful under the Act.
First, the relationship between Respondent Love's and
the Union was not of recent origin. It had existed for almost
4 years prior to the closure, and, so far as the record dis-
closes, was one which had been voluntarily entered into by
Respondent Love's. Consequently, it can hardly be said
that Respondent Love's had a history of hostility toward
the principles of collective bargaining.
Second, while there is evidence that disputes had arisen
between the Union and Respondent Love's, particularly
during the year prior to the closure, there is no evidence
that Respondent Love's had been opposed to meeting with
the Union and to attempting to iron out the differences
which had arisen. This was amply illustrated by Martin's
description of his meeting with Chubb, for as Martin re-
viewed the matters that had given rise to employee com-
plaints, Chubb had agreed to attempt to have them cor-
rected. Neither at this meeting nor at the earlier meeting
with Choy did Martin describe any acrimony that would
form the basis for inferring that Respondent Love's had
been upset or hostile toward the Union because it had cho-
sen to meet and discuss these matters.
Third, many of the substantive matters listed by Martin
and Branco as having led to employee complaints were not
the types of items that would lead an employer to become
hostile toward a bargaining representative. The majority of
them involved operational matters that affected not only
the employees, but were hurtful to Respondent Love's busi-
ness as well. Seemingly by correcting these matters, Re-
spondent Love's could improve both its operations and,
concomitantly. its partronage. Such a result could hardly be
one that Respondent Love's would find distressing. More-
over, with regard to other matters, it hardly seems likely
that Respondent Love's would become so upset with the
Union that it would decide to go to the trouble of closing
the restaurant simply, for example, because there had been
disagreements over whether Turner would wear a skirt
when she tended bar, not because there had been a dispute
over the duties that bartenders would perform during the
year prior to the closure. In short, these were not matters of
major moment.
Fourth, there was testimony concerning remarks made
by supervisors to the effect that the restaurant might be
closed because of high labor costs arising from the collec-
tive-bargaining agreement with the Union."' Yet, in the fi-
nal analysis, that was the very reason that Respondent
Love's did claim that it had closed the restaurant. Such a
reason for closure is not unlawful. It cannot be found that
"because a condition of employment imposed by a collec-
tive-bargaining agreement was the economic 'straw' which
'tipped the scale' in the decision to close, Respondents' mo-
tive for closing was to defeat employees' statutory bargain-
ing rights and, therefore, was unlawful." McLoughlin
Manufacturing Corporation, et al.. 164 NLRB 140. 141
(1967). enfd. as modified. 463 F.2d 907 (D.C. Cir. 1972): see
also, Los Angeles Marine Hardware Co.. upra at 733.
There was also testimony that certain supervisors had
said that Respondent Love's intended to get out of the
Union and that Respondent Love's was having problems
with the Union which would lead it to close. For example,
Turner testified that in 1976, then Assistant Manager Garri-
son had said that Respondent Love's intended to get out of
the Union because the restaurant never made any money
due to the union wage rates, and, also, that in March or
April, then Assistant Manager Gordon had said that Re-
spondent Love's was going to try to get out of the Union
when the collective-bargaining agreement expired in Au-
gust. Clotilde and John Roy described various remarks by
Choy. Thus, Clotilde Roy testified that, in the spring. Choy
had said that the restaurant might close by August and.
asked for a reason by her. Choy had replied that it was
because of "all the problems we are having with the Union
m Both the General Counsel and the Union assail Respondent I.ove's for
having sent a letter to the Union on May 25. providing notification of intent
to terminate the then effective collective-bargaining agreement, on the
ground that since the agreement did not expire until 1978. Respondent
Love's notification was untimely. Such an argument plays somewhat oosel
with the facts. For, the agreement was assOxiationside and, hile there is
very little testimony regarding how it came to be entireI renegotiated in
1977. there is no evidence that Respondent Love's had been responsible for
this turn of events.
109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and besides that the Restaurant is not making enough
money to pay the high wages that the Union has." He also
said, according to Roy, that Respondent Love's would close
in August because that was when it would have to sign the
new contract and he did not think that it would do so be-
cause of the high wages.
Both Roys described a dinner conversation in which
Choy had assertedly stated reasons for the closure. How-
ever, aside from the discrepancy between the Roys as to
when and where this had occurred, Clotilde Roy testified
that Choy had attributed the closure both to high wage
rates and the "problems" between Respondent Love's and
the Union occasioned by the employees going to the Union
for everything, while John Roy testified that Choy had said
only that the closure would be because of high wage rates.
Finally, of course, there was Naylor's comment to Kruger
that Respondent Love's would close the Walnut Creek res-
taurant before letting it be unionized and was thinking of
closing the Hayward restaurant.
To find that terminations are unlawful under the Act, it
need not be shown that the unlawful motive had been the
sole cause of those terminations. Thus, if, in fact, Respon-
dent Love's terminated its restaurant operations at Hay-
ward because of problems with the Union or in an effort to
get rid of the Union, in addition to the economic reason of
high wage levels arising from the collective-bargaining
agreement, then there would be a basis for finding a viola-
tion of Section 8(aX 3) and (1) of the Act. But, see, Hambre
Hombre Enlerprises, Inc., dbl/a Panchito' v. N.L.R.B., 581
F.2d 204, 207, fn. 4 (9th Cir. 1978). Yet, certain factors are
present which belie the conclusion that this testimony of the
former employees should be relied upon in appraising Re-
spondent Love's motivation for the closure. For, it was the
less than credible Turner who had attributed the foregoing
closure statements to Garrison and Gordon. Similarly, on
the one occasion when it was possible to ascertain if Clo-
tilde Roy's testimony pertaining to Choy's remarks could be
corroborated, it was not. While she claimed that, at the
dinner conversation, Choy had attributed the closure both
to high wage rates and to the Union, her husband testified
that Choy had listed only the wage rates as the reason for
the closure.
Furthermore, the substance of these statements attrib-
uted to the supervisors is at odds with objective consider-
ations present in Respondent Love's relationship with the
Union. As found above, Respondent Love's had a substan-
tial bargaining history with the Union. There is no evidence
of "problems" between the two that would cause Respon-
dent Love's to harbor that degree of hostility reasonably
warranting the inference that it would go to the trouble and
cost of closing the restaurant and, thereafter, operating it in
a disguised manner.
Moreover, as discussed in the following subsection. Re-
spondent Love's did attempt to negotiate a reduction in
wage rates so that its operation of the Hayward restaurant,
and the represented status of the employees working there,
could continue. Indeed, even when it proved impossible to
secure a wage reduction from the Union and after the deci-
sion to close had been made, it is undisputed that Respon-
dent Love's, through Chubb, had approached the Union
about the possibility of avoiding the layoffs of employees
working there only to be rebuffed again by Medeiros. Such
overtures are hardly the hallmark of an employer anxious
to clandestinely dispose permanently of the employees and
of their representative.
I credit Krugger's account of Naylor's comment at Wal-
nut Creek and it is, of course, possible that Choy did make
the comments attributed to him by Clotilde Roy. Moreover,
it is undisputed that in July 1978, Choy had told John Roy
that Respondent Love's attorneys had devised the franchis-
ing scheme as a device for Respondent Love's to rid itself of
the Union, which had been viewed as a problem. Yet, it is
clear that of all the managers and assistant managers who
had been assigned to the Hayward restaurant, Choy had
been the one who had harbored an intense dislike of the
Union because the employees took their complaints to it.
Indeed, prior to his first meeting with Martin and Branco,
the object of some of these complaints had been comments
made by Choy. Choy was characterized as "a small man"
and it is not unlikely that, given his hostility toward the
employees for their efforts to obtain the Union's protection,
he had simply used the closure as a touchstone for, in effect,
taunting them by saying that their terminations had been
the result of their own efforts to attain the protection of
their bargaining representative.
In any event, the decision to close the restaurant had
been one made at a very high level of management hierar-
chy. There is no evidence that the reasons fr closing the
Hayward restaurant had been communicated to or dis-
cussed with the assistant managers, managers, and area op-
erations coordinators of Respondent Love's. To the con-
trary, the comments of Dobson. the last manager at
Hayward prior to the closure, to Roy in August-to the
effect that the rumors of closure could not be true because,
argued Dobson to Roy, Respondent Love's had recently
spent $2,000 to repair things and closure would cost
money-tends to indicate that lower supervision had not
been made privy to the decisions being made by Mesker.
Consequently, their sources of information concerning the
possibility of closure and the reasons therefor would have
been no better than the rumors which had served as indica-
tors of closing to the employees. Indeed, had Ramsey been
crying on September 21, as claimed by Porter and Turner,
it would only confirm the conclusion that these lower level
supervisors had been caught unaware when the closure de-
cision had been announced.
Further, it is significant that most of the comments attrib-
uted to Choy were made made after he had ceased being
employed by Respondent Love's. Accordingly, there is even
less basis for concluding that he had been speaking with
knowledge of Respondent Love's actual motive at the time
that he had dinner with the Roys or, in 1978, when he had
described to John Roy how the closure and franchising of
the Hayward restaurant had been a device employed by
Respondent Love's attorneys to be shed of the Union.
Recently, the Board found that an agent's statements to
employees regarding the relationship between the filing of a
representation petition and the greater scrutiny accorded
employees' work, while violative of Section 8(a)(1) of the
Act, had been untrue and the reviews of work performance
had not resulted from considerations unlawful under the
Act, notwithstanding the agent's comments to the contrary.
110o
LOVE'S BARBEQUE RESTAURANT NO. 62
Joint Industry Board of the Electrical Industry and Pension
Committee, et al., 238 NLRB 1398, slip op at 6, fn. 4 (1978).
The situation in the instant case appears to be similar, for a
preponderance of the evidence does not show that dissatis-
faction with the Union, in general, or with the particular
complaints which the Union had brought to Respondent
Love's attention, in particular, had been a factor leading to
the closure decision.
The distinction between closing because of economic
considerations arising from a collective-bargaining agree-
ment and closing because of dissatisfaction with the bar-
gaining agent is not one easily drawn, either when making
or when listening to an explanation for a closure. Thus. it
would not be surprising for Naylor and Choy-or for any
other assistant manager, manager, or area operations coor-
dinator-to confuse the two concepts in whatever they
heard from higher management or when trying to explain
the reason for the closure to employees. Nor would it be
surprising for employees such as Kruger and Roy to con-
fuse the two concepts in what they heard from Naylor and
Choy, respectively. In any event, the other evidence in this
matter does not support the truth of the remarks attributed
to Naylor and Choy. Nor is there evidence that Mesker or
any other official of Respondent Love's had been aware of
their "mouthings." See American Clay Forming Plant, Elec-
tro Division, Ferro Corporation, 238 NLRB 1052, (1978).
Therefore, I place no reliance upon these comments in re-
solving the issue of the reason for the closure of the Hay-
ward restaurant.
Both the General Counsel and the Union point out in the
briefs filed on their behalf that no documentary evidence
was presented to support Respondent Love's contention
that the Hayward restaurant had been financially unsuc-
cessful prior to its closure. It is, of course, accurate, as they
argue, that a failure to produce such evidence does tend to
give rise to an inference that if produced, it would have
been adverse to the party who controlled and failed to pro-
duce it. See e.g., Colorflo Decorator Products, Inc., 228
NLRB 408, 410 (1977), enfd. by memorandum opinion 582
F.2d 1289 (9th Cir. 1978). On the other hand, where, as
here, a party has the burden of producing evidence of in-
tent, his opponent's failure to prove the contrary may not
be substituted as satisfaction of that burden. "The burden
of establishing every element of a violation under the Act is
on the General Counsel." Western Tug and Barge Corpora-
tion, 207 NLRB 163, 1 (1973). "The employer does not have
the burden of disproving the existence of unlawful motiva-
tion .... " Federal-Mogul Corporation v. N.L.R.B., 566 F.2d
1245, 1259 (5th Cir. 1978).
As found above, a preponderance of the evidence does
not support the allegation that the closure had been moti-
vated by other than economic considerations. Conse-
quently, the absence of documentation to support the de-
fense is not material here, for "until the burden of
producing evidence has shifted, the opponent has no call to
bring forward any evidence at all, and may go to decision]
trusting solely to the weakness of the first party's evidence."
2 Wigmore on Evidence, sec. 90, p. 179 (3d ed. 1960). Where
an employer has closed a facility for assertedly economic
reasons, the fact that less than comprehensive evidence is
produced to support that defense does not mandate the
conclusion that it is baseless nor does it mandate the conclu-
sion that the motivation for the closure was one unlawful
under the Act. See Lori-Ann of Miami, Inc., et al., 137
NLRB 1099, 1109-1110 (1962); Los Angeles Marine Hard-
ware Co., supra, 235 NLRB 720, 732. 733 (1978).
In the instant case. Mesker testified regarding the eco-
nomic straits in which Repondent Love's had found itself at
the Hayward restaurant and, further, testified that these
difficulties had been such that Respondent Love's felt clo-
sure to be warranted, absent relief from the high labor costs
which it was incurring under the terms of the collective-
bargaining agreement. Prior to the hearing, the General
Counsel had issued a subpoena duces tecum requiring Re-
spondent Love's to produce certain documents, which, in
total, included virtually, if not, all of Respondent Love's
financial records pertaining to the Hayward restaurant
from January 1976 until its closure." As the record dis-
closes, not only was Respondent Love's directed to produce
the documentation, but seemingly it did so and a recess was
taken for a time which the General Counsel felt adequate to
review the material presented. Consequently. the financial
documentation regarding the Hayward restaurant's finan-
cial status since January 1976 was equally available to the
General Counsel who, nevertheless, did not challenge Mes-
ker's testimony concerning the economic difficulties at that
location."
Where evidence is available to both parties to a lawsuit,
some courts have said that no inference may be drawn
against either side and others have held that "the failure to
produce is open to an inference against both parties, the par-
ticular strength of the inference against either depending on
the circumstances." 2 Wigmore, supra, sec. 288. p. 171. Un-
der either test, however, it cannot be said that the General
Counsel here is in the same position to argue the inference
against Respondents as would be the case had Respondent
Love's refused to produce the documentation.
' See attachment to G.C. Exh I(u.
" There are two exhibits containing financial information pertaining to the
preclosure finances of the Hayward restaurant. One is a set of weekly re-
ports, listing financial information at Hayward for the period December 29,
1975, through September 25, 1977. These were offered for the purpose of
adding the sales figures to compute the gross volume of business at Hayward
prior to the closure Accordingly, no evidence was sought or elicited regard-
ing other facets of these documents, such as the specific meaning of other
figures and the manner in which profits and losses were computed on the
basis of these figures. Indeed, it is not even clear whether these forms contain
all of the cost items needed to compute profits and losses. The second exhibit
is the summary comparative cost breakdown which Chubb showed to Me-
deiros on May 12. It was received solely as having been part of conversation
(transaction) which had taken place between these two representatives on
that date. It was specifically pointed out., in response to objections, that it
was not being received as substantive evidence of the matters contained
therein. Again, no effort was made to analyze the figures shown on that
document. Yet. arguments based on analyses of the substance of both exhib-
its appear In the bnefs filed on behalf of the General Counsel and the Union.
In view of the purposes for which these exhibits were received and in light of
the very sparse explanations of their contents, based on those purposes, I am
unable to derive any meaningful conclusions from the content of these exhib-
its. Had it been made known at the hearing that their contents were to be put
in issue, more comprehensive explanations could have been elicited, thereby
providing some basis for conclusions more firmly grounded in evidence and
based upon other than speculation as to how they should be analyzed.
?" This is not simply an abstract matter, involving nothing more than a
theoretical allocation of who must do what to reach a particular result. The
issue of whether the economics of a situation truly warrant a particular
(Continued)
III
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In any event, I find that a preponderance of the evidence
does not establish that Respondent Love's was motivated
by an unlawful consideration when it made the decision to
close the Hayward restaurant.
C. The Bargaining Obligation Owed to the Union by
Respondent Love's
Both the General Counsel and the Union assail the noti-
fication afforded by Respondent Love's to the Union re-
garding the closure and the manner in which Respondent
Love's attempted to bargain concerning that subject. Yet, a
review of the facts leads to the conclusion that Respondent
Love's acted reasonably with respect to the bargaining obli-
gation owed to the Union.
If "a union has sufficiently clear and timely notice of an
employer's plan to relocate, close or subcontract and there-
after makes no protest or effort to bargain about the plan, it
waives its rights to complain that the employer acted in
violation of Section 8(a)(5) and (I)." International Ladies'
Garment Workers Union, AFL-CIO v. N.L.R.B., 463 F.2d
907, 918 (D.C. Cir. 1972). Here, Chubb met with Medeiros
on May 12, alerted him of Respondent Love's financial dif-
ficulties with its labor costs and of the possibility of closure
without relief, and sought relief. Medeiros admittedly
turned a deaf ear. On June 1, Chubb again broached Me-
deiros with a renewal of that message and plea for relief.
Again, Medeiros rebuffed Respondent Love's overatures for
negotiation of the matter. Further, it is undisputed that in
mid-July, Chubb again met with Medeiros, at which time
he notified Medeiros that a final decision to close had been
reached" and he sought suggestions to avoid having to lay
off the employees then working at the restaurant. Rather
than negotiate with regard to the effects of the closure on
the employees, Medeiros simply dismissed further consider-
ation of the issue, saying that he would rather have the
restaurant closed 7' and admonishing Chubb to be certain
that the employees received the full wages and benefits to
which they were entitled.
course or action by an employer is one that could occupy several days of
hearing, if disputed and if litigated thoroughly. Where the General Counsel
has available the same financial information as a respondent, but does not
quarrel, based on that information and after an investigation has been con-
ducted, with assertions of adverse financial circumstances, the situation is
somewhat akin to one where hearsay evidence is offered without objection:
[It is a clear indication that the evidence is not disputed, hence the absence
of [the presentation of controverting documentary evidence]." N.L.R.B v.
International Union of Operating Engineers, Local Union No. 12 Ledford
Brotiers], 413 F.2d 705, 707 (9th Cir. 1969). In this fashion, tnal time and
effort can be concentrated on those factual matters which are in dispute.
"4 That, as Mesker testified, Chubb had not been directed to contact the
Union once the closure decision had been made does not mean that he did
not do so. Chubb was a seasoned negotiator and had long been involved in
handling matters under the Act, as shown by his testimony reciting his back-
ground. Thus, it hardly needed Respondent Love's specific direction for him
to be aware of what had to be done. That he would notify the Union,
without having to obtain Respondent Love's specific direction to do so, is
simply part of the reason that he had been retained to represent Respondent
Love's: to take those measures which were necessary in the labor relations
area so that Respondent Love's satisfied the obligations imposed on it by
law. In short, Chubb simply did the job he had been hired to do.
7" Apparently, rather than negotiate an exception to the economic provi-
sions of the associationwide collective-bargaining agreement.
In sum, Respondent Love's provided full notice to the
Union of its financial situation and of its intentions if that
situation were not corrected. It offered the Union adequate
opportunity to negotiate a solution to the problem. When
the Union rejected the opportunity to negotiate about the
economic problem, Respondent Love's then notified it of its
decision to close and attempted to negotiate concerning the
effects of that closure on the employees. In these circum-
stances, there is simply no basis for finding that Respondent
Love's acted to foreclose bargaining about either the deci-
sion or its effects on the employees. See The Lange Corn-
pan),, a Division of Garcia Corporation, 222 NLRB 558, 562-
564 (1976); Los Angeles Marine Hardware Co.. supra, 235
NLRB 720, 732-733 (1978).
Yet, several arguments are advanced in support of the
contention that Respondent Love's should have done more
to satisfy the bargaining obligation imposed upon it by the
Act. First, it is urged that Respondent Love's should have
emobodied its notification to the Union of financial difficul-
ties and of the possibility of closure in a written document
because Medeiros was aware that Chubb and a history of
pleading financial distress as a tool for extracting unwar-
ranted concessions from labor organizations. Whether the
latter is accurate or not is hardly the point, for there are
means available under the Act to check such spurious con-
tentions. See, e.g., N.L.R.B. v. Western Wirebound Box Co.,
356 F.2d 88 (9th Cir. 1966). Moreover, Chubb did provide
Medeiros with the cost comparison document, signed by
Fackrell. While this did not spell out every detail of Re-
spondent Love's financial plight and did not state in haec
verba that the restaurant would be closed absent relief, it
certainly should have served as notice to Medeiros that
something other than Chubb's individual bargaining tech-
nique was involved. Indeed, when the restaurant was
closed, the Union showed no surprise nor did it protest the
fact that it had closed. Branco's only complaints concerned
the shortness of notice to the employees and the amounts
that they were paid. No charge was filed until after the
restaurant was opened by Respondent Kallmann.
Second, it is argued that Respondent Love's failed to pre-
pare a set of written proposals identifying the precise type
of relief and the specific reductions that Respondent Love's
wanted to negotiate. Yet, it is undisputed that during his
May 12 conversation with Medeiros, Chubb had enumerat-
ed several areas-in classifications, health, and welfare--
where such relief might be provided. Medeiros, however,
was intransigent in his opposition to negotiating any reduc-
tions. Thus, Respondent Love's found itself in somewhat
the same situation as does a union when an employer re-
fuses to bargain: there is hardly anything to be gained by
presenting specific proposals when faced with an adamant
opposition to bargaining at all.
Third, it is urged that Respondent Love's offers to bar-
gain with the Union were defective and pretextuous in that,
so it is contended, Respondent Love's had already made the
decision to close the restaurant even before Chubb had spo-
ken with Medeiros initially. Even assuming, arguendo, that
this is an accurate characterization of the evidence, the con-
clusion urged in this argument is not correct. For, "in no
case has the Board held that an employer must defer mak-
ing a decision concerning terms and conditions of employ-
112
LOVE'S BARBEQUE RESTAURANT NO. 62
ment until it has first conferred with the representative of its
employees. The requirement is that, after reaching the deci-
sion, the employer must then notify the representative and
afford the opportunity to discuss that decision and to con-
sider alternative proposals." The Lange Company., supra,
222 NLRB at 563; see also Joseph Macaluso, Inc., d/h/a
Lemon Tree, 231 NL.RB 1168, 1175- 76 (1977). There is sim-
ply no evidence present in the instant case showing that
Respondent Love's had been unwilling to consider alterna-
tives to closure had Medeiros. or any other official of the
Union, been willing to negotiate concerning the situation.
In any event, a careful comparison of Chubb's statements
to Medeiros with the substance of Mesker's remarks to the
Kallmanns. father and son, discloses that no definite prom-
ise to franchise the Hayward restaurant had been made
until after it had become clear that Medeiros did not intend
to even consider Respondent Love's pleas for financial re-
lief. Thus, as set forth above, prior to May, Mesker and H.
Kallmann had generally discussed the possibility of the lat-
ter acquiring an additional franchise from Respondent
Love's, but the Hayward restaurant was not even men-
tioned during these discussions. During May, when Chubb
held the first meeting with Medeiros. Mesker had men-
tioned the Hayward restaurant to H. Kallmann during a
telephone conversation. However. he had said only that Re-
spondent Love's did not desire to continue losing money
operating it and that Respondent Love's "would certainly
consider franchising it" if "present conditions continued."
Whether "present conditions" were to continue was, of
course, a matter then being determined by Chubb's efforts
to negotiate a cost reduction with Medeiros.
Also in May, Mesker had met with Kallmann. It ap-
peared to me that the latter, apparently imbued with a de-
sire to protect Respondent Kallmann's position, was less
than totally candid about what had transpired at that meet-
ing. Thus, there were inconsistencies between his testimony
describing the meeting and his description of that same
meeting in his pretrial affidavit, as noted in footnotes 31
and 33, supra. Yet, these inconsistencies, as well as Kall-
mann's overall description of the substance of the meeting.
do not suffice to refute Respondent Love's basic position
that it had been willing to continue operating the restaurant
had Medeiros been agreeable to concessions that would re-
duce the costs of operation. Thus, while Mesker did men-
tion the "possibility" of franchising the Hayward restau-
rant, the subject had arisen only after Kallmann had said
that he felt that the cost of constructing a new facility
would be too high. The fact that Mesker also had said that
the restaurant would be available in 3 months is not incon-
sistent with Respondent Love's expressions of willingness to
bargain with Medeiros, for Mesker had been speaking to
Kallmann only in terms of a "possibility" and he had ear-
lier told H. Kallmann that the availability of the restaurant
for franchising had depended on whether "present condi-
tions continued."
Nor is the fact that during Mesker's May conversation
with Kallmann the latter had secured a job with Respon-
dent Love's inconsistent with the latter's expressions of will-
ingness to negotiate regarding continued operation of the
Hayward restaurant. For, following the references to the
Hayward restaurant, Mesker had said that other existing
franchised operations might become available. Accord-
ingly, it would have been logical tbr Kallmann. as he testi-
fied. to accept a position with Respondent Love's so that he
would be positioned to accept any franchise that might be-
come available.
Finally, it is argued that Respondent Love's failed to sat-
isfy the bargaining obligation imposed on it by the Act bh
failing to specifically advise the Union that the restaurant
would be franchised. While this is an accurate factual asser-
tion, Medeiros had displayed no interest in what happened
to the eployees as a result of the closure and there is no
evidence that Respondent Love's had made any effort to
conceal the fact that it intended to franchise the restaurant.
Indeed, Medeiros' own reaction to Chubb's efforts to nego-
tiate about the future of the restaurant's employees cer-
tainly implied that the Union was bidding farewell to the
entire situation and had no interest in pursuing the matter
further. In these circumstances. there is no basis for finding
that Respondent Love's somehow violated its bargaining
obligation by failing to specifically tell a representative
which had displayed no further interest in the matter that
the premises would be franchised.
D. The Relationship Created Between Re.Lspndents
I. Whether Respondent Kallmann is an independent
employing entity
Though a preponderance of the evidence will not, as
found above, support the conclusion that Respondent
Love's had been closed for considerations unlawful under
the Act, there remains the question of whether Respondent
Love's continued to remain, at least, an employer, whether
or not intentionally, of the employees employed at the Hay-
ward restaurant on and after October 20. In arguing for an
affirmative answer to this question, the General Counsel
and the Union first argue that the relationship created be-
tween Respondents was such that Respondent Kallmann
was not "an independent employer" nor "in any sense ani
entrepreneur." Transcontinental Theaters, Inc.,' Douglas
Krutilek and Robert ShaH. a partnership dbh/a Cvnatron En-
terprises. 216 NLRB 1110, 11 13 (1975)., enforcement denied,
568 F.2d 125 (9th Cir. 1978).
In Transcontinental Theaters, the Board concluded that
there had "been no arms-length removal of the operation
. . .[but instead] what has been accomplished is merely an
arrangement in which Ithe lessor] was able to control the
operations .... receive the benefits of substantially lower
labor cost, and not be deprived of the profits which might
result." Id. at 1113. No question but what the motivating
factor behind the transaction in that case--high labor
costs- is the same as was present in the instant case. Be-
yond that, however, there are significant differences.
First, in Transcontinental Theaters, the Board made the
subsidiary finding that the lessor had "not relinquished its
economic control and interest . . ." (Id. at 112), inasmuch as
the lessees had not been required to pay any' money nor to
make a deposit on the equipment; the profit that the lessees
could make was clearly circumscribed by requiring, in addi-
tion to rent and commissions, payment to the lessor of 75
percent of net profits, unilaterally determined by the lessor.
every 4 or 5 weeks; the lessor provided the forms on which
113
)DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the lessees had to maintain its daily reports and which tied
in the lessee's bookkeeping system with that of the lessor:
and, the lessor had reserved the right to assist the lessee in
buying and booking films and in determining programs.
In the instant case. Respondent Love's does provide
forms which Respondent Kallmann must file showing its
daily receipts (form L-106) and summarizing its weekly
transactions. However, there is no evidence that as a result
of filing its reports on these forms, Respondent Kallmann's
bookkeeping system is thereby tied into that of Respondent
Love's. To the contrary, Respondent ove's specifically re-
jected the opportunity to achieve such an end by declining
to allow franchisees to avail themselves of its accounting
services. Respondent Kallmann, accordingly, uses its own
accountant and there is no evidence that its bookkeeping
system corresponds to that of Respondent Kallmann.
More significantly, in contrast to the situation in Trans-
continental Theaters Respondent Kallmann did make a sig-
nificant initial investment in the business which it operates.
Thus, it obtained a $50,000 loan." 10,000 of which was used
to pay 20 percent of the franchise fee which, under the
franchise agreement, Respondent Kallmann was obligated
to pay to Respondent Love's, in full and with interest to be
paid on the outstanding balance.77 In addition, Respondent
Kallmann had been obliged to purchase the inventory of
the restaurant and, further, to pay $21.300 to buy the liquor
license from Respondent Love's. Consequently. unlike the
situation in Transcontinental Theaters, Respondent Kall-
mann had been required to incur significant financial obli-
gations to initiate operations.
Although Respondent Kallmann is also obliged to make
periodic payments to Respondent Love's, over the life of
the agreement, this obligation does not accord Respondent
Love's the control over Respondent Kallmann's profits that
characterized the situation in Transcontinental Theaters.
For, while Respondent Kallmann must pay, in addition to
rent, a "royalty" to Respondent Love's based on a percent-
age of profits, at the highest amount this will not exceed 4.3
percent of Respondent Kallmann's gross sales-a substan-
tially smaller amount than the 75 percent of net profits
76 It is argued that since Respondent Kallmann purchased nothing from
Respondent Love's, it lacks a proprietary interest and, accordingly, will have
nothing left to alienate once the term of the franchise agreement expires in
1993. Such an argument, however, misses the mark, for, as pointed out infra,
the Board has found licensees in retail stores to be employers within the
meaning of the Act though they did not purchase the premises on which they
operated. To accept this argument-that to qualify as an employer there
must be a purchase of the premises and assets which can be alienated at all
times-would be to impose a requirement that would preclude all lessees
from qualifying as employers within the meaning of Sec. 2(3) of the Act.
Indeed, Respondent Love's leases the Hesperian Boulevard premises, but
there is no dispute about its employer status. Moreover. Respondent Kall-
mann has purchased the inventory of the restaurant and, subject to a right of
first refusal by Respondent Love's (which requires third party determination
of any disputes over "fair market value"), Respondent Kallmann can, under
article XI of the franchise agreement, "sell, transfer or otherwise dispose of
any rights subject to this Agreement . . . In fact, article VI, B, of the
franchise agreement accords Respondent Kallmann an election, available at
any time up to August 15, 1979. to purchase the leased equipment.
n While Respondent Kallmann was not obliged to commence repayment
until 53 weeks after initiating operations, this only affects the timing of that
obligation. The obligation was, nonetheless. one which it had incurred and in
the event of default by Respondent Kallmann in satisfying that obligation,
the entire outstanding amount becomes "immediately due and payable" at
Respondent Love's option.
which the lessee had to pay every 4 or 5 weeks to the lessor
in Transcontinental Theaters. In addition, it is Respondent
Kallmann, not Respondent Love's, that is responsible for
payment of taxes, insurance and assessments on the prop-
erty which'it uses under the realty sublease and equipment
lease between Respondents.
Indeed, Respondent Kallmann's ability to control the ex-
tent of its own profits is shown most graphically in two
related areas. In the area of prices, while Respondent Kall-
mann is obliged to serve meals and other items specified by
Respondent Love's, there is no restriction on its discretion
to charge the prices that it desires. Accordingly. Respon-
dent Kallmann is free either to charge high prices to obtain
more profit from each item sold, or to set reduced prices in
an effort to increase overall profit by hoping to attract
greater patronage. The second area is that of sources of
supplies. Again. while Respondent Love's has set qualita-
tive standards, a matter discussed in greater detail infra.
there is no evidence of any restriction on where Respondent
Kallmann obtains those supplies." Nor is there any indica-
tion that the qualitative standards established by Respon-
dent Love's are such that only specific purveyors could
qualify as satisfactory sources of supply. Consequently, Re-
spondent Kallmann is ree to take advantage of price dis-
counts and rebates which particular suppliers may provide.
Consequently, combining Respondent Kallmann's ability
to select the most advantageous suppliers with its ability to
set prices as it sees fit. it has considerable lattitude to in-
crease its profits, only a very small portion of which must be
submitted to Respondent Love's as a royalty and, under
limited circumstances, as rental payments.
These circumstances show that the situation in the in-
stant case is very different than was that in Transcontinental
Theaters, where it was found that there had been no relin-
quishment of"economic control and interest" by the lessor.
Here, Respondent Kallmann has made a significant invest-
ment to initiate operations, has obligated itself to pay sig-
nificant additional amounts over the term of the agreement,
is not required to submit substantial portions of its profits
to Respondent Love's, and, most significantly, can improve
its profits through its combined ability to establish price
levels and select suppliers. While the franchise agreement
accords Respondent Love's authority to require Respon-
dent Kallmann to furnish data required periodically by the
former, there is no evidence that this requirement is based
on other than the business need of insuring that Respon-
dent Kallmann makes proper payments, as opposed to
being a mechanism for controlling Respondent Kallmann's
labor costs.
A second significant distinction between Transcontinental
Theaters and the situation of Respondents pertains to the
term of the relationship created. In the former, the sublease
" While it appears that Respondent Kallmann has chosen to obtain its
supplies, for the most part, from the same sources as does Respondent
Love's, Kallmann had been employed by Respondent Love's pnor to coming
to Hayward and it is not surprising that he would use those suppliers with
whom he had become familiar during his prior employment expenence. On
the other hand, that does not establish that Respondent Kallmann has been
compelled to continue using those suppliers. Indeed, there was no reluctance
on Respondent Kallmann's behalf to change the supplier of draft beer and
this was done without Respondent love's knowledge and without securing
its consent.
114
LOVE'S BARBEQUE RESTAURANT NO. 62
was for a term of I year. Further, the lessor was free to
enter the premises at all times to determine whether they
were being properly maintained and, additionally, could
terminate the lease upon 7 days' notice if, in the lessor's
judgment, operations were not being conducted in a
"proper and businesslike" manner or were not producing
sufficient revenue. No similar degree of' control is vested in
Respondent Love's. For, while Respondent Love's is ac-
corded a right to inspect that premises, the franchise agree-
ment is for a basic term lasting until "midnight on February
24, 1993"-"a not-insubstantial tenure." Clark Oil& Refin-
ing Corporation. 129 NLRB 750. 756 (1960).
Respondent Love's is accorded power to terminate the
agreement sooner. However, that power, in contrast to the
lessor's power in Transcontinental Theaters, is not unfet-
tered. Rather, the conditions which enable Respondent
Love's to exercise its power of termination are specified in
the agreement: default in the terms of the franchise agree-
ment, commencement of bankruptcy, debtor or insolvency
proceedings against Respondent Kallmann, a purported as-
signment for the benefits of creditors by Respondent Kall-
mann, appointment of receiver for or placement in posses-
sion of an attachment or keeper, or voluntary or
involuntary transfer, without Respondent Love's prior writ-
ten approval, of a substantial part of the business.7 None of
these conditions possess the ambiguity of the "proper and
businesslike" condition of Transcontinental Theaters. More
important none of them pertain to the sufficiency of Re-
spondent Kallmann's income generated from operation of
the restaurant.
A third significant difference between the instant case
and Transcontinental Theaters arises in the area of labor
relations. Under the sublease in the latter, "by maintaining
a right to impose a ceiling on operating expenditures, par-
ticularly labor cost, [the lessor] retained power to (supervise
and) oversee the operation .... " Id. at 1112. The effect was
to limit the number and kinds of employees who could be
hired, as well as the labor budget. Moreover, it was con-
ceded that the lessee had to seek and receive the lessor's
approval to hire more personnel and to increase the cost of
payroll. However, neither in the franchise agreement, itself,
nor in the testimony and other evidence adduced during
this proceeding has it been shown that Respondent Love's
possessed similar authority over Respondent Kallmann.
While the agreement does provide that any new man-
ager, to succeed Kallmann, which Respondent Kallmann
appoints "must be acceptable" to Respondent Love's, the
only power that the latter possesses in this respect is nega-
tive, being only the power to veto appointment of a particu-
lar person as manager, and is confined only to the initial
appointment of a manager. Respondent Love's is not ac-
corded authority to control the manner in which that man-
ager, or any other official of Respondent Kallmann, hires,
discharges, disciplines, or promotes employees. Nor, does
Respondent Love's have authority to control the appoint-
ment of supervisors, the wage rates that are set for person-
nel employed at the restaurant, and the general labor poli-
In this section, the only question being considered is whether Respon-
dent Kallmann is an independent employing entity. The effect of the sub-
stance of these provisions on the relationship between Respondents is dis-
cussed infra
cies determined by Respondent Kalhmann to appl to
employees working there.
Although the term "employer" is among those included
under the "Definitions" subsection of the Act, no specifica-
tion nor test is set forth in Section 2(2) of the Act to define
that term. That was a deliberate choice of Congress "so the
Board, in performing its delegated function of defining and
applying these terms lemployer and employee]. Imight]
bring to its task an appreciation of econonuic realities. as
well as a recognition of the aims which C'ongress sought to
achieve by this statute." .N.I..R.B. v. E.(. Atri.s & (Co,,1-
pain,. 331 U.S. 398, 403 (1947). In tact, the Board has per-
formed its "delegated function" in this respect. " lie deci-
sive elements in establishing an employer-emploee
relationship are complete control over the hire. discharge.
discipline, and promotion of employees. rates of pa'. super-
vision, and determination of policy matters. [Footnote
omitted.]" Roane-Anderson (ompatn. 95 NL.RB 1501. 1503
(1951). Indeed that control need not be absolute nor exclu-
sive. For, control over significant aspects of the emplo -
ment relationship. sufficient to enable the possessor to bar-
gain effectively concerning those matters, suffices to
establish an employment relationship and. accordingly, em-
plover status under Section 2(2) of the Act. See. e.g., Sun-
Maid Growers o' Calfornia, 239 NLRB 346, (1978), and
cases cited therein.
As found above, Respondent Kallmalnn does have the
ability to increase profits. very little of w hich must be paid
to Respondent Love's for roxalty and rents. Respondent
Kallmann does exercise control over significant aspects of
the employment relationship of the employees working at
the Hayward restaurant. Therefore, I find that Respondent
Kallmann is an entrepreneur and an employer within the
meaning of Section 2(2) of the Act.
2. Whether Respondent Kallmann has been an alter ego
of Respondent Love's
Although an entity may occupy the status of an employer
under Section 2(2) of the Act, it may still be the alter ego of
another employer where it is no more than a "disguised
continuance" of that other employer. See, e.g.. Circle T
Corporation; Meat Men,. Incorporated d/b/a Royal T Meat.
238 NLRB 245 (1978). Alter ego relationships arise where
there has been "a mere technical change in the structure or
identity of the employing entity, frequently to avoid the
effect of the labor laws, without any substantial change in
its ownership or management." Howard Johnson Co., Inc. v.
Detroit Local Joint Ex.ecutive Board. etc., 417 U.S. 249, 259.
fn. 5. (1974).
The factors significant in making an alter ego determina-
tion were reviewed in Jersey Juniors. nhc., 230 NLRB 329,
333 (1977). There, no alter ego relationship was found to
exist. However, using the same factors as guidelines, an al-
ter ego relationship was found in Circle T Corporation, supra
at 249. Applying these same factors to the facts presented in
the instant case. the following conclusions emerge.
First. the decision to close the Hayward restaurant and to
franchise its operations had not been involunitars in the
sense that Respondent Love's had been compelled hby out-
side forces to pursue these measures (. lersevl Junior si-
I
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pra. On the other hand, neither has it been shown that Re-
spondent Love's took these actions capriciously and
whimsically. The decision to close had been based on eco-
nomic considerations. Having closed the facility, Respon-
dent Love's could not simply walk away from the situation.
It had continued to possess a leasehold, equipment and in-
ventory. Thus, it chose to franchise the facility.
Of course, it may well be that it could have taken mea-
sures other than closure to resolve its economic difficulties
or that it might have pursued some course other than fran-
chising to handle disposition of the facility. Yet, to analyze
the situation in such a manner would require second-guess-
ing the decisions that were made by Respondent Love's and
"Board law does not permit the trier of fact to substitute his
own subjective impression of what he would have done
were he in the Respondent's position." Grand Auto, Inc.,
d/b/a Super Tire Stores, 236 NLRB 877, fn. I (1978). The
point is that although Respondent Love's had not exactly
faced the wolf at the door, as was the situation in Jersey
Juniors, supra, neither had it been totally free to ignore the
circumstances which confronted it. Its action in response
thereto cannot be said to have been so irrational or extreme
as to warrant the inference that it had been merely engag-
ing in a charade.
Second, there is no evidence that Respondent Love's had
been acting for a nefarious purpose, nor that it had acted in
a nefarious manner. Although the closure had resulted from
factors arising as a result of the collective-bargaining rela-
tionship, it had been the product of the economic factors in
that relationship. As found above, there is no evidence that
Respondent Love's was hostile either toward the Union or
toward the concept of collective bargaining. Indeed, it had
broached the Union twice in an effort to negotiate changes
in the agreement so that the restaurant could continue to
remain in operation. Rebuffed in these efforts, it then had
attempted to bargain about the effects of the closure on the
employees. In this area also its overtures were rejected. This
latter point is significant, for it is undisputed that Chubb
had offered to bargain about taking action to obviate the
need to terminate the employees. Yet, had Respondent
Love's sought to dispose permanently of these employees, it
is unlikely that it would have initiated discussion of this
subject. Surely, the evidence will not support a finding that
Respondent Love's could have foreseen Medeiros' rebuff.
In short, Respondent Love's motive was economic and it
did not act to conceal its proposed course of conduct from
the Union. Cf. Republic Engraving and Designing Company,
A Division of Nutter, Inc., et al., 236 NLRB 1150 (1978).
There is simply no evidence of nefariousness on the part of
Respondent Love's.
Finally, a preponderance of the evidence will not support
the conclusion that Respondent Kallmann is being oper-
ated simply as a front for Respondent Love's. Instructive in
this respect is the Board's recent decision in Big Bear Super-
markets #3, 239 NLRB 179 (1978), in which an alter ego
relationship was found to exist in a franchise setting.
There, the franchisee was the son of "a major officer and
shareholder" of the franchisor; the franchisor retained con-
trol over the product lines, as well as over the quantities
and prices, carried by the franchisee; the franchisor re-
served the right to provide the same level of supervision and
technical assistance as it provided to other facilities which it
operated directly; the franchisee's financing for the pur-
chase of inventory had been obtained through the franchis-
or and the amount which the franchisee had deposited was
virtually an insignificant portion of the value of the inven-
tory received, with neither a limit on the time by which the
remainder had to be paid nor interest charged on the out-
standing unpaid balance; the franchisor directly paid all
expenditures, including permit and license fees, insurance
premiums, taxes and payroll expenses, and collected all of
the franchisee's daily sales receipts, debiting, and crediting
an "open account" which it maintained ftr the franchisee:
no interest was charged by the franchisor for amounts ad-
vanced to cover the franchisee's operating debts, thereby
creating a situation where the franchisor "in actuality ad-
vances interest-free all moneys required for the store's op-
eration . . ." (Id. at 9-10) a significant percentage of the
franchisee's net operating income, 40 percent, was payable
to the franchisor; and, the franchisor paid a "Draw on An-
ticipated Profits" to the franchisee, in an amount compara-
ble to salaries paid to managers at franchisor-operated
stores and without regard to the profitability, if any, of the
franchised store, with the result that the franchisee received
"an open-ended salary guarantee with [the franchisor]
again advancing these funds interest free." Id. at 12.
Not surprisingly, the Board concluded that "under the
agreement Big Bear is committed to continue its general
financing of the store's operation, by virtue of various pro-
visions requiring it to pay all the bills, and by the fact that
[the franchisee] pays no interest on these moneys advanced.
Thus, any true entrepreneurial risks would appear to be
borne in the first instance by Big Bear, rather than by [the
franchisee]." Id. at 13.
By contrast. Kallmann was not related to any official of
Respondent Love's. While the latter controls the items that
will be sold, it imposes no requirements on the quantities
that Respondent Kallmann has to stock. As found above, it
is Respondent Kallmann which determines the prices that
will be charged for the items, as well as the sources from
which supplies will be obtained. Through the call reports,
Respondent Love's periodically reviews the restaurant and
makes suggestions for improvements. However, Respon-
dent Kallmann is not obliged to follow these recommenda-
tions. More significantly, Respondent Love's has no author-
ity, short of claiming a termination of the franchise, to
replace Kallmann as manager nor to assign its own person-
nel to manage the restaurant.
As found above, Respondent Kallmann paid a substan-
tial amount to acquire the franchise, inventory, and liquor
license. The funds used were not obtained from Respondent
Love's. Moreover, Respondent Kallmann must pay the re-
mainder of the franchise fee at prescribed intervals with
interest owing on the outstanding balance. Respondent
Love's pays none of the operating expenditures of Respon-
dent Kallmann. The latter must pay interest on any unpaid
amounts which it owes to the former. Respondent Love's
makes no payments, by way of "draw," to Respondent
Kallmann whose only source of income is the revenue de-
rived from operating the restaurant. Finally, most of the
financial obligations owed by Respondent Kallmann to Re-
spondent Love's are payable in absolute amounts, without
! 16
LOVE'S BARBEQUE RESTAURANT NO. 62
regard to the profitability of the restaurant's operations,
and while the royalty and, under specific circumstances, the
rent are based upon a percentage of sales, the percentage
payable is relatively insignificant and certainly nowhere
near the 40 percent amount that was payable in Big Bear,
supra, or the 75 percent figure of Transcontinental Theaters,
supra.
One other point is noteworthy in comparing the situation
in Big Bear with that of the instant case. In the former, the
franchisor had ignored the bargaining representative and
had failed to give its employees any option to continue
working at the store, notwithstanding provisions in its col-
lective-bargaining agreement specifying that employees
were to be given 7 days to choose between applying for
employment with the new owner or transferring to another
of the franchisor's stores. In the instant case, not only did
Respondent Love's notify the Union of the problem and
attempt to bargain about a reduction in costs sufficient to
enable Respondent Love's to continue operating the restau-
rant, but it also attempted to bargain with the Union con-
cerning the future of the employees then working in the
restaurant. Since Medeiros terminated further discussion of
the matter, it cannot be said what would have resulted from
such bargaining. Indeed, it cannot even be said what Re-
spondent Love's would have been unwilling to intervene on
behalf of these employees with Respondent Kallmann to
see if the latter would employ some of them, since the
Union curtailed further discussion of the subject of contin-
ued employment of these employees.
In sum, a preponderance of the evidence will not support
the conclusions that the transaction whereby the restaurant
was closed and franchised had been a sham, that it had
been intended as a vehicle for unlawfully disposing of the
Union and of the employees that it represented, nor that
Respondent Kallmann has been operating the restaurant as
no more than a front for Respondent Love's. It is not a
situation where there has been a "disguised continuance" of
operations by Respondent Love's.
3. Whether Respondents are joint employers of the
employees at the restaurant
Where two or more employers, organizationally and fi-
nancially separate and distinct entities, each exercise areas
of effective control over significant aspects of the employ-
ment relationship of a group of employees, they are consid-
ered joint employers and share the bargaining duty owed to
the representative of those employees. See discussion, Sun-
Maid Growers of California, 239 NLRB 346, 350-351
(1978). Before turning to consideration of this question,
however, one related argument should be treated at the out-
set. An argument is made, based upon McGuire, "The La-
bor Law Aspects of Franchising," 13A Boston College In-
dustrial and Commercial Law Review, 215 (December 1971),
that the test for finding a joint employer relationship should
be broader than the one formulated by the Board and
should encompass a full analysis of the financial relation-
ship between franchisor and franchisee, in effect taking into
account the degree to which the franchisor benefits finan-
cially as a result of the relationship. Yet, the purposes of the
Act are not to regulate financial relationships and to ascer-
tain the degree to which various entities may benefit as a
result thereof. Rather, they are to promote the free flow of
commerce and to protect the rights of employees and em-
ployers. Seemingly, therefore, the Board would not be free
to use the Act as a vehicle for ends which go beyond these
purposes and create relationships solely on the basis of eco-
nomic gain and general social welfare. See Local 357 Inter-
national Brotherhood of Teamsters. Chauffeurs, Warehouse-
men and Helpers of America [Los-Angeles-Seattle Motor
Express] v. N.L.R.B., 365 U.S. 667. 676 (1961).
In the instant case, there has been no showing that the
Act did not provide the Union with sufficient means to pro-
tect the interests of the employees which it had represented
at the Hayward restaurant. Had it been more attentive to
Respondent Love's overatures for negotiations concerning
the financial situations and had it been more diligent in
protecting the futures of the employees once the closure
decision had been made and Respondent Love's had sought
to bargain about the continued employment of these em-
ployees, the latter might still be employed and this entire
proceeding might never have been commenced. Instead, the
Union made no effort to avail itself of the means provided
by the Act in such situations and displayed no interest in
the matter until Respondent Kallmann opened for business.
In sum, the Union had the ball but dropped it. Conse-
quently, it is now in a poor position to argue that the Board
should tailor its doctrines solely to ensure that it regains
possession.
Returning to existing Board doctrine, there are princi-
pally two articles of the franchise agreement between Re-
spondents upon which reliance is placed to establish that
Respondent Love's continues to be an employer of the em-
ployees employed at the Hayward restaurant: Article V
and article XII. As set forth in section 1, E., supra, article V
provides that Respondent Love's would not have granted
the franchise unless it was able to require "strict complaince
with" the "standard operating procedures and policies"
which it has established and may establish in the future. It
then continues by setting forth certain illustrations of those
"standard operating procedures and policies." Among the
illustrations listed are "operating procedures." The article
then includes a catchall provision to the effect that such
"standard operating procedures and policies" "will govern
all other matters which in [Respondent Love's] judgment
requires standardization and uniformity in all Love's Wood
Pit Barbecue restaurants."
Article V is one of the articles specifically listed in article
XII, "Remedies for Breach," as being one with which Re-
spondent Kallmann "must at all times hereafter maintain
full and complete complaince." Moreover, "default in the
performance of any of the terms of" the franchise agree-
ment, if not cured within 7 days of "mailing of written no-
tice thereof by" Respondent Love's, affords the latter
grounds for declaring the agreement terminated. It is these
portions of these two articles, coupled with the very de-
a Which does not mean that the Union was compelled to make financial
concessions. By asking for Respondent Love's books and records, it may
have ascertained whether financial relief was actually necessary and, if so.
may have been able to suggest a method whereby relief could be attained in
other areas, without the employees having to suffer a reduction in pay and
benefits.
117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tailed provisions of the operating manual and craft books,
on which principal reliance is placed for the allegation that
Respondent Love's possesses sufficient authority to exercise
control over significant aspects of the employment relation-
ship of the employees employed at the Hayward restaurant.
Yet, Respondent Kallmann is part of an integrated enter-
prise. As such, its position is quite similar, if not identical,
to those of licensors and licensees in discount department
stores where the Board has long recognized the need for the
licensor to exercise a degree of control over its licensee's
operations to ensure the overall success of the enterprise.
For example, it is stated in the majority opinion in Thrif-
town, Inc., dbla Valu Village, et al., 161 NLRB 603, 606
(1966):
Experience has demonstrated that participants in
discount store establishments, although retaining their
separate corporate identities, strive to create the ap-
pearance of a single-integrated enterprise in order to
obtain the mutual business advantages derived from
this type of operation. Given this business arrange-
ment, it is apparent that any disruption of operations,
including that resulting from labor dispute involving
an operator, will almost necessarily adversely affect the
operation of the entire store. It follows, therefore, that
the owner of the discount store in some manner will
retain sufficient control over the operations of each de-
partment so that it will be in a position to take those
steps necessary to remove the causes for the disruption
in store operations.
Similarly, the dissenting Board members in that case agreed
that a degree of control in such enterprises was necessary to
satisfy "the parties' concern with creating the public im-
pression of a unified enterprise." Id. at 610.
Yet, the Board has consistently pointed out that the need
for uniformity of operation will not, of itself, suffice to es-
tablish a joint employer relationship. "[Olur decision ... is
not based upon mere 'appearances' or upon whether the
agreement of the parties 'as between themselves' establishes
a particular type of business entity, 'in law.'" Thriftown,
Inc., supra, at 607.?' "The existence of such control, how-
ever, has not in and of itself been sufficient justification for
finding that the licensor or lessor is a joint employer of
employees of its licensees or lessees. Generally, a joint em-
ployer finding is justified where it has been demonstrated
that the lessor is in a position to control the lessee's labor
relations." Disco Fair Stores, Inc., et al., 189 NLRB 456,
459 (1971).
Consequently, though the enterprise be integrated and
while the public may perceive no difference between a unit
operated directly by the owner and operated instead by a
franchisee, such factors are not determinants of joint em-
ployer status. "In the absence of substantial control of labor
relations by" a franchisor, it and its franchisee "are not
joint employers of the employees of the [franchisee] ....
S.A.G.E., Inc., of Houston, and Its Licensees, Joint Employ-
ers, 146 NLRB 325, 328 (1964).
51 This point was made by the majority in response to the dissenting mem-
ben' concern that the conformity requirements are quite clearly aimed at
fostering the public appearance of a single-integrated enterprise. They have
nothing to do with the employment relationship as such."
In Thriftown, Inc., supra, the Board concluded that such
control did exist where the licensor-owner retained a degree
of control over selling space, shared overhead expenses, ad-
vertising, pricing policies, and items to be sold sufficient to
affect the profits of the licensee-operator, where the latter
was obliged, under the terms of the agreement, to "at all
times in the conduct of its business strictly conform to the
methods, rules, business principles, practices, policies and
regulations which may be established and revised by" the
licensor-owner and where the licensor-owner could "at any
time, for good cause shown, terminate the agreement upon
fifteen (15) days written notice," with both parties possess-
ing the right to terminate the agreement at any time upon
60 days' written notice.
In United Mercantile, Incorporated, a wholly owned subsid-
iary of Walgreen Co., d/b/a Globe Discount City, 171 NLRB
830 (1968), the Board reached the same result where the
agreement conferred upon the owner the authority to issue
rules pertaining to "sales, operational, merchandising and
pricing practices" of operators, as well as the right to re-
quire the discharge of operators' employees who, in the
owner's opinion, conducted themselves improperly or were
discourteous, and accorded the owner a right of termination
for default on any of the covenants of the agreement or
rules prescribed by the owner, as well as the right to termi-
nate the agreement without cause, at a specified annual
date. The Board reached its conclusion concerning the joint
employer status in that case despite the fact that the owner
had never exercised the powers accorded it by the agree-
ment and in spite of a provision in the agreement stating
that the operator had "complete responsibility for deciding
its own labor policies." Id. at 831. However, with respect to
the latter, the agreement explicitly exempted the owner's
"discharge and rulemaking powers from this specific provi-
sion .... " Id. at 832.
Disco Fair Stores, supra, represents a further evolution of
the doctrine of coemployership in the integrated enterprise
context. Only it serves to mark the boundry of the breadth
of that doctrine. Thus, the owner's control over the opera-
tors was reflected by a clause requiring the operator to:
... abide by all rules and regulations which [the owner]
may hereafter establish . . . for the mutual protection
of the [owner] and [operator] and for the mutual wel-
fare of all of the other [operators] . .. which in the sole
judgment of [the owner] may be necessary for the
safety, cleanliness, and preservation of good order in
said building and for the efficient and harmonious op-
eration of the Store .... [Id. at 457.]
Another provision of the agreement provided specifically
that the objectives of the agreement could "be defeated un-
less [operator's] employees maintain a standard of courtesy
and efficiency as shall be determined and set out by
[owner]." Finally, the agreement provided that leases were
terminable on 90 days' written notice if, inter alia, there was
"any breach" by the operator.
As was true in United Mercantile, the owner in Disco Fair
had never implemented these terms and the agreement dis-
claimed any intent to create a partnership or joint venture.
Yet, the Board reached a contrary result based upon two
factors. First, while the agreement gave the operator "suffi-
cient authority over operational matters to permit the effi-
118
LOVE'S BARBEQUE RESTAURANI NO. 62
cient operation of the store and to give the appearance of
an integrated retail operation, there is lacking any provision
which explicitly or implicitly gives the owner] control spe-
cifically over the labor relations of lessees." Id. at 459. Sec-
ond, the lease contained "no provision denominating the
lessees as in default of their obligations for failure to follow
or conform to such rules and regulations as [the owner] may
promulgate concerning personnel." Id. at 459.82
In the specific area of franchising, in 1968 the Board is-
sued two decisions pertinent to consideration of such agree-
ments: The Southland Corporation, d/b/a Speedee 7-Eleven.
170 NLRB 1332 (1968), and S. G. Tilden, Inc., et al., 172
NLRB 752 (1968). Both relied on the absence of control by
the franchisors over the franchisees' labor relations to find
that the latter were the sole employers of the employees
involved. Though it is argued that the sparsity of subse-
quent reference to Tilden, and inferentially to Southland as
well, serves as an indicator that the trend of Board doctrine
in this area has been away from the conclusions reached
therein, such a conclusion does not follow. Southland Cor-
poration was referred to specifically in both Transcontinental
Theaters, supra, and Big Bear Supermarkets 3, supra.
However, the Board did not hold that Southland was being
overruled in those two later cases. It merely distinguished
the factual situations in Transcontinental and Big Bear from
that of Southland. Moreover, while most of the Board mem-
bers who participated in Southland and Tilden are no longer
members of the Board, Member Jenkins participated in
Southland and then-Member, now Chairman. Fanning par-
ticipated in Tilden. Neither has ever subsequently even inti-
mated that his agreement with the decision of the case in
which he participated had been improvident. Consequently,
there is no basis for me to conclude that Southland and
Tilden are not still operative as guidelines for resolving
whether particular franchise agreements, such as the one in
the instant case, give rise to joint employer relationships.
As found above, Respondent Kallmann is an employer
within the meaning of Section 2(2) of the Act. However, as
various portions of the franchise agreement show, particu-
larly the prefatory sections described on p. 15, supra, Re-
spondent Kallmann operates the Hayward restaurant as
part of an integrated enterprise. Consequently, the true is-
sue presented here is whether, as in Thriftown, supra, and
United Mercantile, supra, the degree of control retained by
Respondent Love's confers sufficient authority over a signif-
icant segment of Respondent Kallmann's labor relations to
warrant finding that Respondent Love's continues to be an
employer of Respondent Kallmann's employees. Or,
whether a preponderance of the evidence shows no more
than that control retained by Respondent Love's has no
direct affect on Respondent Kallmann's labor relations and
has been retained solely in an effort to maintain the uni-
formity of the integrated enterprise for the mutual benefit
of Respondent Love's, Respondent Kallmann and the other
franchisees.
't However, this case was not intended to overrule United Mercantile as
shown by the Board's subsequent reliance on the latter as the basis for its
decision in Walgreen Louisiana Co., Inc., d/b/a Globe Discount (Cit, 209
NLRB 213 (1974).
While article V of the operating manual reters to "stan-
dard operating procedures and policies." article IX of the
franchise agreement provides specificall 5 that Respondent
Kallmann is an independent contractor, that no employees
of Respondent Kallmann are to be deemed employees of
Respondent ove's, and that no "partnership, joint venture.
agency or any other business relationship other than that of
an independent contractor" is created by virtue of that
agreement. Although "a conclusionary and self-serving dis-
claimer of control over labor policies cannot be sufficient by
itself to determine the legal question whether [entitiesl are
joint employers," United Mercantile. supra, 171 NLRB at
832, the fact that exclusive control over labor relations has
been vested in franchisee is a factor to be considered in
determining whether a joint employer relationship exists.
See Southland Corporation, supra.' Transcontinenlal Thc-
aters, supra, 216 NLRB at 1113, fn. 2. item (3). The provi-
sions of article IX are most specific while the phrase "stan-
dard operating procedures and policies" is general and
ambiguous.
Moreover, that phrase is followed in article V b a list of
illustrations, set forth on page 17. supra, pertaining to the
matters affecting the uniformity of the enterprise, rather
than to labor relations matters. For example, the specifica-
tion of the "design, decoration, and decor of' the restaurant
is hardly a matter that affects labor relations. Nor are such
matters as the "exact menus to be used," "txbod items to be
served" or "sanitation facilities." Indeed, the catchall provi-
sion, "All other matters which . . . require standardization
and uniformity in all Love's Wood Pit Barbecue restau-
rants," make clear that the applicability of the phrase
"standard operating procedures and policies" is not being
used broadly, to apply to all facets of Respondent Kall-
mann's operation, but is applicable only to a specific type of
"procedures and policies" those which must be controlled
to achieve uniformity throughout the chain.
Consequently, taken in context, as it must be, with the
entirety of article V and compared with the restriction of
article IX, it becomes apparent that the phrase cannot, of
itself and without other evidence of its interpretation, be
construed as broadly as the General Counsel and Union
urge. Indeed, article Xl, itself states that the purpose for
requiring "strict and exact performance" is to "best pre-
serve, maintain and enhance the reputation, trade name
and.good will . . . for the franchising system." as a whole
There is no evidence that it is intended to control the labor
relations of franchisees.
Of course, article V, on its face, does refer to "minimum
hours of operation." Yet, this "provision in no way pre-
scribes the hours that a particular employee must work
.... " S. G. Tilden, Inc., supra, 172 NLRB 753. Moreover,
Respondent Kallmann is free to increase the hours of op-
eration and, in fact, has done so without obtaining Respon-
dent Love's approval. Further, while article V also specifies
"operating procedures" among the listed items modifying
"standard operating procedures and policies," the former is
as vague and indefinite as the latter, with respect to pre-
cisely what subjects are covered and, in any event, can con-
fer no greater right on Respondent Love's than was con-
ferred upon the franchisor in S G. Tilden, Inc.. supra, where
the franchisees were "required to observe Tilden's pricing
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policies, public relations, road testing, building mainte-
nance, and housekeeping standards .... " Id at fn. 2.
So far as the credible evidence discloses, Respondent
Kallmann "alone and exclusively hires, fires, and in every
other respect sets the terms and conditions of employment
of the [restaurant's] employees." Southland Corporation, su-
pra, 170 NLRB at 1334. While the craft books do describe
the manner in which employees in the various classifica-
tions are to perform their duties, there is no mention of
them made in the franchise agreement and there is no evi-
dence that following the initial training provided newly
hired employees, these books have been distributed to em-
ployees hired thereafter. To the contrary, neither Totman
nor Dawson made any mention of having been issued craft
books upon beginning employment with Respondent Kall-
mann. Moreover, of the initial employee complement, only
the waitresses and busboys, so far as the record discloses,
received these books and the busboys were instructed by
Kallmann to take them "with a grain of salt."
Of course the information contained in the craft books is
taken verbatim from the operating manual. Yet, there is no
evidence that the manual has been made available to em-
ployees in lieu of the craft books, themselves, or that em-
ployees have been directed to familiarize themselves with
and adhere to the appropriate provisions of the operating
manual. Consequently, it cannot be said that the craft
books and operating manual, insofar as they specify the
manner in which employees are to perform their duties on a
day-to-day basis, are other than "recommendations" which,
as Mesker, corroborated by Kallmann, explained, are not
mandatory. Southland Corporation, supra, 170 NLRB 1333.
In response to a question put to him while testifying as an
adverse witness, Mesker testified that Respondent Love's
standard procedures and policies were described in the op-
erating manual "and various memos and letters published
by Love's Enterprises, Incorporated." Though it is argued
that this testimony is a concession that the manual embod-
ies the "standard operating procedures and policies" of the
franchise agreement and, therefore, that the two are syn-
onymous, that is not a valid conclusion. For, as found
above, article V pertains to "standard operating procedures
and policies" necessary to maintain the uniformity of the
enterprise. Mesker did not testify that every portion of the
manual was needed to attain that end and both he and
Kallmann testified that only certain portions of the man-
ual-section I ("Product Specification"), sections K and L
(the recipes for food preparation), and that part of section
M relating to portioning and sizes in which items are to be
provided-were obligatory-"those things which relate to
the image, the historical image of the Love's chain." None
of those sections, however, affect labor relations.
Of course, they do prescribe the manner in which items
are to be cooked and the amounts in which they are to be
served. Yet, as was true of the road testing, building main-
tenance and housekeeping standards of Tilden, these are no
more than "elements of the business relationship" between
Respondents that are established by Respondent Love's "to
keep the quality and goodwill of [Respondent Love's] name
from being eroded." S. G. Tilden, supra, 172 NLRB at 753.
They accord Respondent Love's "sufficient authority over
operational matters to ... give the appearance of an inte-
grated ... operation .... " Disco Fair Stores, Inc., supra at
459.
True, employees at Respondent Kallmann's restaurant
are obliged to wear the same uniforms as do employees at
other restaurants operated by Respondent Love's. But, a
similar requirement in S. G. Tilden, supra, was held not to
establish a joint employer relation and, indeed, the wearing
of a particular uniform, which is in reality a matter pertain-
ing to uniformity throughout the enterprise, hardly seems to
be such a significant term of employment that it could serve
as the basis for creation of an entire joint employer relation-
ship. Of greater significance is the fact that Respondent
Love's has no control over the caliber of service provided
by Respondent Kallmann's employees. Thus, there is no
provision in the franchise agreement whereby Respondent
Love's can demand the termination of discourteous or un-
satisfactory employees. Cf. United Mercantile, supra. If Re-
spondent Love's receives a complaint regarding service at
Hayward, it will not conduct an investigation, but instead
will merely send a letter of apology and a gift certificate to
the complaining customer. No disciplinary action will be
sought of Respondent Kallmann. Moreover, so far as the
record discloses, Respondent Kallmann has every right to
enter into a collective-bargaining agreement without Re-
spondent Love's consent. Disco Fair Stores, Inc., supra, 189
NLRB at 459-460. Indeed, other than suggesting a course
for Respondent Kallman to follow to resolve the current
picketing of the Hayward restaurant, Respondent Love's
has not, so far as the record discloses, become involved
voluntarily in how Respondent Kallmann should handle
the dispute with the Union.
While I credit the testimony that Chubb promised to ar-
range a meeting for the Union with Respondent Kallmann,
during the course of the pre-opening meeting between
Chubb and the Union's representatives, that does not show
that Chubb had authority to speak for Respondent Kall-
mann. After all, Chubb is, himself, in business. Thus, it is
not unlikely that he would make such a promise and then
attempt to become Respondent Kallmann's representative,
so that another employer could be added to the list of those
whom he represented. In any event, there is no evidence
that he made the promise to arrange for a meeting between
the Union and Respondent Kallmann with the latter's au-
thority or consent.
Several additional factors should be mentioned here, if
for no other reason than to show that they have been con-
sidered and disregarded as evidence of the asserted joint
employer relationship between Respondents. The fact that
Respondent Kallmann has no ability to advertise indepen-
dently and that only Respondent Love's can advertise on its
behalf has been considered in S. G. Tilden, supra, fn. 2, and
has been found not to warrant a joint employer finding.
Similarly, in that case, the factors of the franchisor training
the franchisee's employees and the fact that the franchisee
used the same name, premises and equipment to supply the
same products to the public, without the latter's knowledge
of a change in management, were held not to warrant a
joint employer finding. Significantly, Porter acknowledged
that Respondent Love's had trained him for employment
with the original franchisee for the Hayward restaurant.
Yet, no contention is made that Respondent Love's had
120
LOVE'S BARBEQUE RESTAURANT NO. 62
been a joint employer with that franchisee." Further, so far
as the record discloses, Respondent Love's willingness to
train employees extended only to the initial complement.
Moreover, Respondent Love's ability to terminate the fran-
chise agreement is much narrower than was the case in
Southland Corporation, supra, arising only in specific situ-
ations set forth in the franchise agreement. Yet, as the
Board pointed out there it had never held that, standing
alone, the right of termination would negate the existence
of independent status. Id at 1333.
In sum, the only control that Respondent Love's exer-
cises over Respondent Kallmann is that necessary to ensure
the uniformity of operation and goodwill of the integrated
enterprise of which Respondent Kallmann is a part. There
is no provision according Respondent Love's control over,
nor the right to participate in, Respondent Kallmann's la-
bor relations policies. To the contrary, Respondent Kall-
mann signed a standard franchise agreement, was required
to provide capital and to purchase the inventory at the res-
taurant, with 20 percent of the franchise fee being paid in
cash, was made the sole employer of the restaurant's em-
ployees under the terms of the franchise agreement, is not
subject to control by Respondent Love's with respect to
prices set or suppliers chosen, is free to follow or not to
follow those portions of the operating manual that do not
affect the uniformity of the integrated enterprise, and is free
of having the relationship terminated except under the con-
ditions specified in article XII of the franchise agreement.
See Transcontinental Theaters, supra, 216 NLRB at 1113, fn.
2. Therefore, I find that a preponderance of the credible
evidence does not establish that Respondent Love's contin-
ued to be an employer of the employees at the Hayward
restaurant following execution of the franchise agreement
with Respondent Kallmann.
Although it is further argued that Respondents are a sin-
gle employer, as found above, there is no centralized con-
trol over labor relations. Moreover, there is neither com-
mon ownership of Respondents nor are they commonly
managed. Therefore, I find that there is no basis for using
the single employer doctrine in circumstances such as those
presented in the instant case. See Los Angeles Marine Hard-
ware Co., supra, 235 NLRB 720, 732 (1978).
4. Whether Respondent Kallmann is a successor to
Respondent Love's
It is also alleged that Respondent Kallmann is a succes-
sor employer to Respondent Love's with respect to the
Hayward restaurant. However, none of the employees hired
by Respondent Kallmann had ever been employed at the
Hayward restaurant. Further, there has been no showing
that a majority of the employees hired by Respondent Kall-
8" Although arguments are advanced based upon an effort to compare the
franchise situation of Respondent Kallmann with that of the original fran-
chisee of the restaurant, in 1973, the evidence concerning the initial fran-
chisee is so sparse that no valid comparison can be based upon this record.
Moreover, to argue, as is done, that other franchisees of Respondent Love's
have incurred far greater liability than Respondent Kallmann in connection
with obtaining their franchises is profitless. For, as Kallmann discovered
when beginning consideration of acquiring a franchise, a considerable invest-
ment is required of franchisees who choose to construct and to own their
own facilities.
mann desired representation by the Union. However, both
the Union and the General Counsel contend that this oc-
curred only' because Respondent Kallman deliberately had
excluded the former Hayward employees from consider-
ation for employment due to their affiliation with the
Union, thereby violating Section 8(a)(3) and (1 ) of the Act.
It is, of course, accurate that Respondent Kallmann
"could not refuse to hire the employees of his predecessor
solely because they were union members or to avoid having
to recognize the union. [Citations omitted.l" llosward John-
son Companv, Inc.. supra, 417 U.S. at 262. fn. 8. 94 S. Ct. at
2243, fn. 8. As found above, Kallmann was not a credible
witness when testifying with respect to this ery subject of
the procedure followed to hire employees to staff the restau-
rant. Since in cases where discrimination is alleged "the
pivotal factor is motive." Lipman Brothers, Ins. supra. nor-
mally where the employer advances a false reason for its
actions, it is permissible to infer that the reason being con-
cealed is an unlawful one. Yet, that inference need not be
drawn blindly and without regard to other circumstances
present in particular cases. Like all other inferences and
presumptions, it is not mandatory.
To the contrary, where objective considerations refute a
conclusion of illegal motive, then other explanations may
be considered to ascertain the motive for the false testimony
being advanced. In the instant case, several circumstances
exist which tend to demonstrate that Respondent Kallmann
did not plan and implement a campaign to avoid hiring
former employees of the Hayward restaurant because of
considerations unlawful under the Act.
First, as found above, prior to closure of the restaurant
there had not been "problems" of the magnitude that
would have naturally led Respondent Love's to become
hostile toward the Union or toward the employees which
the Union represented. No doubt Choy did harbor animus
toward the employees for their complaints to the Union.
which he apparently viewed as criticism of his management
of the restaurant. Yet, there is no evidence that higher man-
agement of Respondent Love's had shared, or even known
of, his viewpoint, nor of that of Naylor-assuming that the
latter's comment to Kruger did, in fact, refer to the possible
closure of the Hayward restaurant because of the Union.
rather than being a remark intended to impress upon Kru-
ger that Respondent Love's was not so committed to restau-
rants that it operated that it would never be willing to close
one. To the contrary, Respondent Love's twice made efforts
to bargain for more favorable contractual terms to avoid
perpetuation of conditions that it felt would necessitate clo-
sure. Moreover, there is no evidence that Kallmann had
contact with Choy or Naylor, or is there any basis for infer-
ring that he would likely have learned of their attitude
toward the Union. In these circumstances, there is no basis
for concluding that any "problems" would have been
brought to Kallmann's attention that would have led him to
be reluctant to hire employees who had formerly worked at
the restaurant because of their union sympathies.
Second, while Kallmann did not generally appear credi-
ble when testifying about his procedure for hiring the initial
employee complement. he did appear sincere when he testi-
fied that it had been his belief, at the time that he had taken
over the restaurant, that the choice as to whether or not it
121
D)IL('ISIONS O() NA IONAI. LABOR RELATIONS BOARI)
would be unionized had been his to make. Not only at 29
years of age was he relatively young, hut, as was pointed
out during the hearing. his experience had been obtained
largely in an area of California that is not heavily orga-
nized. Moreover, there was testimony describing remarks
by him to the effect that he had a choice as to whether or
not to be unionized and that he had chosen to be nonunion.
Indeed. Turner described him as having made such a state-
ment during his picket line conversation with Pingre and
her. Consequently, there is objective evidence which sup-
ports Kallmann's testimony that when he had begun oper-
ating the restaurant, he had believed that the decision as to
whether or not to he unionized had been his to make. This
being the case, there would have been no reason for him to
avoid hiring former employees of the restaurant to avoid
being confronted with the Union as their representative. for
he did not believe at the time that their desires would be
taken into consideration.
Third, while Respondent Kallmann had not been "obli-
gated by the Act to hire any of [Respondent ove's] em-
ployees .... "Golden State Bottling Company, supra, 414
U.S. at 184. fn. 6, 94 S. Ct. 425. it is simply not accurate
that Kallmann did, in fact, refuse employment to all former
employees of the restaurant. Although apparently only a
handful of the former employees applied for employment
with Respondent Kallmann, as set forth above, Wadsworth,
and probably .ogan as well, had been offered positions as
busboys, u which were positions included in the bargaining
unit when Respondent Love's had operated the restaurant.
He also offered Pingree a job, even though at the time she
had been picketing the restaurant. It is argued, however,
that this offer had been conditioned on Pingree foregoing
further support for the Union. But, that is not the manner
in which Pingree related Kallmann's offer. Neither in tenor
nor in substance, quoted above on page 29, were Kall-
mann's words that the restaurant "will not be Union"
ones of condition. Rather, they were words of fact. And,
they were consistent with Kallmann's belief at the time as
to how unionization came about: Through determinations
of employers, not employees. Accordingly, it is simply not a
fact that no former employees of the restaurant had been
offered employment with Respondent Kallmann."?
1 While Kallmann testified that there had been no openings for them
when they had applied and, inconsistently, had stated in his pretrial affidavit
that their school hours had conflicted with the only jobs that Respondent
Kallmann could have offered them, it appears that these explanations were
designed to protect his position by enhancing Respondent Kallmann's de-
fense, a matter discussed infra. In any event, Wadsworth's reluctance in
acknowledging that he had been offered a job at Respondent Kallmann. a
fact which even he appeared to realize was not favorable to his position,
leads me to credit his account as being an honest, albeit hesitant, concession
of what had occurred dunng that interview.
i' Turner did inquire if Respondent Kallmann would hire her and, accord-
ing to Pingree, had been told by Kallmann that he would not do so because
he had heard that she was "too radical." Yet, Turner acknowledged that the
pickets had been giving Kallmann "a hard time" pnor to her question and it
is not altogether clear that her comment constituted an offer to go to work
for Respondent Kallmann--nor, if so, that it had either been made or taken
by Kallmann has having been a serious one rather than simply being an
extension of the "hard ime" being given Kallmann. What is clear is that she
never did fill out an application form nor otherwise seek employment with
Respondent Kallmann as other applicants who had been and were to be
hired.
Fourth. much is made in the briefs of the fact that the
initial newspaper advertisements had made no mention of
the restaurant at which positions were available and of the
further fact that the initial 2-1/2 days of interviewing had
been conducted at a motel, rather than at the restaurant.
I hese fictors. it is argued. tend to show that Respondent
Kallmann had been attempting to conceal the fact, from
the former employees, that the restaurant was to be re-
opened in an effort to avoid being faced with their applica-
tions for employment. It is accurate that Respondent Kall-
mann did not advance any explanation for the omission of
the restaurant's name from these advertisements nor for se-
lecting a motel at which to conduct the initial interviews.
But. how realistic is the theory advanced to explain the
malevolent intent assertedly shown thereby? Surely, it must
have been obvious to Kallmann that he would be reopening
the same restaurant as Respondent Love's had closed and,
once this happened, all and sundry would know of it. More-
over, as is shown most graphically by the offer of positions
to Wadsworth and Logan when they had applied for em-
ployment at the restaurant. as well as by the fact that em-
ployees who applied for employment at the restaurant on
October 17 were hired, not all positions had been filled by
the time that Kllmann had shifted the situs of interviewing
to the restaurant. Were there any substance to the troll cre-
ated under the bridge of the argument regarding these fac-
tors, surely Kallmann would have at least ensured that all
openings had been filled before beginning to interview at
the restaurant.
Furthermore, as Porter pointed out, Respondent Kall-
mann had followd the format of Respondent Love's for
the advertisements placed in the newspapers. Were Respon-
dent Kallmann attempting to conceal the fact that it was
accepting applications for employment at the restaurant, it
seems unlikely that it would have used as a model for its
advertisements, published in newspapers of general circula-
tion in the area, the very format with which former employ-
ees of the Iayward restaurant, like Porter, would be famil-
iar and would quickly recognize. In sum neither the
omission of the restaurant name from the advertisement nor
the use of a motel to conduct the first 2-1/2 days of inter-
viewing tend to support the argument that Respondent
Kallmann was concealing the fact that interviews were
being conducted.
Finally, it is accurate that several former employees of'
the restaurant had applied for, but were not offered posi-
tions with, Respondent Kallmann. Yet, as Porter's situation
shows most clearly, there was a valid business reason for
Respondent Kallmann to exercise care when considering
applications of employees who had been employed at the
restaurant. For, Kallmann testified that while he had been
favorably impressed with Porter's application, upon reflec-
tion he had concluded that the filthy condition of the
kitchen, coupled with Porter's position as head cook prior
to the closure, had led him to decide not to hire Porter.
Notwithstanding Kallmann's general unreliability, there
are certain objective considerations which tend to support
his testimony pertaining to Porter specifically and that ex-
tend to all former employees of the restaurant in general.
That the restaurant had been in poor condition and that
Respondent Love's had blamed the employees for that fact
122
LOVE'S BARBEQUE RESTAURANT NO. 62
is demonstrated by Pingree's testimony that she had over-
heard Patterson saying as much to Ramsey prior to the clo-
sure, as detailed on page 21, supra. Since there was no evi-
dence that he had been aware of Pingree's presence when
he had made this remark to Ramsey, it is reasonable to
assume that his comment accurately reflected Patterson's
attitude concerning both the condition of the restaurant
and his belief that the employees had been responsible
therefor. Certainly there is no evidence that would form the
basis for concluding that he would have had any other rea-
son for making such a remark to Ramsey.
Furter, Pingree did not describe Ramsey as having dis-
agreed with Patterson's assertion that the employees were
at fault for the dirty condition of the restaurant. Indeed, the
restaurant had been closed, following Respondent Love's
termination of business there, for almost a month so that it
could be cleaned before Respondent Kallmann commenced
operations. True, there is a distinct paucity of evidence on
how the restaurant came to be closed and regarding the
precise nature of the cleaning that had been performed dur-
ing this period. On the other hand, it seems unlikely that,
since the restaurant was going to have to be reopened, Re-
spondents would have advanced any nefarious purpose by
closing for a brief period for no reason whatsoever, thereby
giving rise to, as the General Counsel points out in his brief,
a "loss of revenues" during the period of the closure. To the
contrary, Patterson's overheard comment certainly supports
the contention that the restaurant had indeed been in need
of cleaning at the time that it had been closed.
Further, Ramsey had remained at the restaurant follow-
ing its opening by Respondent Kallmann to aid in training
employees hired by the latter. Accordingly, despite Kall-
mann's denial, it is not unlikely that Ramsey-having been
present daily while the restaurant had been closed, having
been one of the two supervisors of Respondent Love's in
charge of the cleaning, and having not disagreed with Pat-
terson's description of either the filthy condition or the
cause of that condition at the restaurant-would have made
known to Kallmann" the opinion that the former employ-
ees had been responsible for the shabby condition of the
restaurant when it had been closed. Indeed, this is sup-
ported by Turner's testimony that during her picket line
conversation with Kallmann, the latter had mentioned that
Ramsey had said that Turner was a good bartender.
In these circumstances, there are objective considerations
present that tend to suggest, consistent with Kallmann's tes-
timony regarding this reason for rejecting Porter for em-
ployment, that Respondent Kallmann's true reason for
avoiding hiring former employees of the restaurant had not
been their union sympathies, but rather the slovenly work
habits attributed to them. Viewed against this background,
the comment made to Hansen, "oh, you were one of them."
by Kallmann and Sebben's abrupt change of attitude when
it became clear that Roy's most recent experience had been
at the restaurant are as explainable by the fact that Respon-
dent Kallmann had been reluctant to hire employees who
had been responsible for the dirty condition of the restau-
rant as by any potential problem that might have been
posed by the fact that they were supporters of the Union.
I do not feel that Kallmann's testimony to the contrary, was credible.
Of course, Kallmann did offer Pingree a job after the
restaurant had reopened. However. as shown by Ramsey's
remarks to her on the day of the closure. Pingree had been
considered as Respondent Love's best waitress. When the
offer had been made. Ramsey had still been at the restau-
rant, aiding in training newly hired employees. Since to ev-
ery rule there is an exception. it would not have been incon-
sistent for Respondent Kallmann to have been willing to
hire some of the former employees, like Pingree. who en-
joyed good reputations while being reluctant to hire those
who did not.
Yet, if Kallmann had been concerned with the condition
of the restaurant at the time that it had closed, one wonders
why he did not simply so testify, rather than attempt to
construct a different defense. Possibly, the answer is con-
tained in the circumstances confronting him. He was young
and not well versed in labor relations matters. He had un-
dertaken significant financial obligations which, under the
franchise agreement and related documents, obliged him to
make periodic payments for such matters as the franchise
fee, rent, and insurance premiums. Should Respondent
Kallmann be found to have violated Section 8(a)(3) of the
Act with regard to the former employees, the backpay li-
ability would have magnified these financial obligations
substantially. Consequently, it is hardly surprising that, as
pointed out above, he appeared nervous when testifying
and, as is not uncommon with alleged discriminatees who
attempt to embellish the extent of their union activities to
ensure that they will be found discriminatees as, for exam-
ple, Turner did, he appeared to be attempting to construct a
defense that would ensure that Respondent Kallmann
would not be found to have acted for an unlawful motive.
While that affords a valid basis for not crediting that de-
fense, it does not provide a valid basis for ignoring all other
evidence and, ipso facto, penalizing him for doing so by
finding an unlawful motive without regard to whether a
preponderance of the evidence supports such a conclusion.
In fact. a preponderance of the evidence does not support
the allegation that Respondent Kallmann refused to hire
former employees of the restaurant for considerations un-
lawful under the Act. There is no evidence that Respondent
Love's had reason to harbor, or that it did harbor, hostility
toward the Union and its supporters because of any as-
serted "problems" that would naturally cause it to commu-
nicate to Kallmann that he had best not hire any of its
former employees. There is no evidence that either Naylor
or, particularly, Choy had repeated their feelings about the
Union to other officials of Respondent Love's or, more sig-
nificantly, that they had ever spoken to Kallmann before
Respondent Kallmann had commenced hiring employees.
A preponderance of the evidence does indicate that Kall-
mann believed the choice as to whether the restaurant
would be unionized was his alone to make, without regard
to how the employees whom he hired felt about the matter,
In fact, he did not uniformly refuse to offer employment to
all former employees who applied for employment. Conse-
quently, while he undoubtedly did not want to incur the
same high labor costs that had occasioned Respondent
Love's to feel that the restaurant could not be operated
profitably, his view of how unions became bargaining rep-
resentatives did not warrant undertaking a campaign to
123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preclude former employees from being hired by Respon-
dent Kallmann. Finally, there is substantial evidence that
the former employees of the restaurant had been considered
responsible for its filthy condition when it had been closed
and that Kallmann had desired to avoid perpetuation or
recurrence of that situation.
Therefore, I find that a preponderance of the evidence
does not support the allegation that Respondent Kallmann
violated Section 8(aX3) and (1) of the Act in choosing the
employees that it would hire. Further, since it has not been
shown that even a significant number of former employees
of Respondent Love's had been hired by Respondent Kall-
mann, the latter was not a successor employer to the for-
mer. Finally, as it has not been shown that a majority of the
employees hired by Respondent Kallmann had desired rep-
resentation by the Union, I find that Respondent Kall-
mann's failure to observe the collective-bargaining agree-
ment to which Respondent Love's had been bound, its
failure to recognize the Union as the representative of the
employees hired to work at the restaurant, and its institu-
tion of wage rates and benefits for those employees without
prior notification to and bargaining with the Union did not
violate Section 8(a)(5) and () of the Act.
E. The Allegations of Independent 8(a)(1) Violations
The complaint alleges two independent violations of Sec-
tion 8(aX)(1) of the Act by Respondent Kallmann. The first
pertains to Kallmann's remark to Pingree that he would
rehire her under the same conditions as she had been em-
ployed by Respondent Love's, "but it will not be Union."
Although, above, I have found that the quoted portion was
not a condition, it is, nevertheless, a clear statement to an
employee that Respondent Kallmann did not intend to per-
mit the employees to be represented. While, as also found
above, Kallmann truly believed that this was a matter
within his prerogative to determine, the determination of
whether Section 8(a)(l) has been violated by an employer is
an objective one which does not involve scrutiny of the
employer's motive. See American Lumber Sales, Inc., 229
NLRB 414, 416 (1977), and cases cited therein. Therefore, I
find that Respondent Kallmann did violate Section 8(a)(I)
of the Act by making this remark.
The second incident pertains to the photographing of Lo-
gan and Wadsworth, as the two of them sat in an automo-
bile after picketing had ended for the day, by Sebben.
While Sebben claimed that he had believed that the two
strikers had been smoking marijuana, there is no evidence
that they had been doing so and, more importantly, there is
no evidence that Sebben had taken the picture in an effort
to aid in the enforcement of marijuana laws. Indeed, there
is no evidence that anything was done with the picture after
it had been taken. "[T]he Board and courts have long held
that in the absence of any proper justification therefor, pho-
tographing strikers engaged in picketing or employees en-
gaged in other union activities constitutes illegal interfer-
ence, restraint, and coercion." Puritana Manufacturing
Corporation, 159 NLRB 518, 519, fn. 2 (1966). (Citations
omitted.) In the absence of any explanation by Sebben to
Wadsworth and Logan, they could only have concluded
that Sebben had been attempting to harass them by taking
the picture, and they could only have concluded that he
had been doing so because of their picketing, since there
has been no showing that Sebben would have photo-
graphed a customer had the latter been smoking marijuana
in Respondent Kallmann's parking lot. Therefore, I find
that by photographing Logan and Wadsworth, Respondent
Kallmann violated Section 8(a)(l) of the Act.
F. Whether Respondent Kallmann's Operations Satisfy the
Board's Standards for Asserting Jurisdiction
Although Respondents argue that the Board should ad-
just its discretionary standards upward to account for the
effects of inflation, it would appear that any authority to do
so, wholly aside from the merits of doing so, has been re-
moved from the Board by virtue of Section 14(c)(1) of the
Act.
A tabulation of the gross sales at the Hayward restaurant
during the final year of operation discloses that it received
gross revenues in excess of $500,000. Although Respondent
Kallmann claims that it would not have encountered simi-
lar success during its first year of operation, which had not
expired by the time of the hearing, it continued the business
of Respondent Love's at the Hayward restaurant "in essen-
tially the same manner as before the change of [operator]."
Martin J. Baker, an individualproprietor, d/b/a Galaxy The-
ater, Hayloft Theatre, and Mini-Art Cinema, 210 NLRB 695
(1974). Though, as found above, not a successor employer
for purposes of assuming the bargaining obligation of Re-
spondent Love's, the change in the employee complement
would not affect the fact that Respondent Kallmann is con-
tinuing essentially the same operation as had Respondent
Love's at Hayward. Moreover, as late as November, Kall-
mann gave an affidavit, under oath, stating that he antici-
pated that Respondent Kallmann would derive in excess of
$500,000 during its first year of operations. Although there
was testimony concerning competing enterprises having
opened in the vicinity of the Hesperian Boulevard restau-
rant, the only real difference in the situation appears to
have arisen as a result of the Union's picketing of the res-
taurant. It is settled that "a drop in volume of business, as a
result of picketing, cannot be taken into consideration as a
factor in defeasance of the Board's jurisdiction." Kachco
Corporation d/b/a Hickory Farms of Ohio, 180 NLRB 755
(1970).
Therefore, inasmuch as Respondent Kallmann is con-
ducting the same type of operation as was conducted by
Respondent Love's at Hayward, when the Board's standard
for asserting jurisdiction over retail operations was satisfied
during the year ending in closure, and in light of the fact
that Kallmann's projection that over $500,000 gross rev-
enue would be derived during the first year of operation
appears to have been affected only by the Union's picket-
ing, I find that the volume of Respondent Kallmann's op-
erations do satisfy the Board's standard for asserting juris-
diction over retail enterprises.
11. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Karl Kallmann d/b/a Love's Barbeque
Restaurant No. 62, set forth above, occurring in connection
124
LOVE'S BARBEQUE RESTAURANT NO. 62
with its operations described above have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead, and have led, to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
I. Karl Kallmann d/b/a Love's Barbeque Restaurant
No. 62 and Love's Enterprises, Inc. are separate employers
within the meaning of Section 2(2) of the Act, each of
whom is engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Hotel, Motel & Restaurant Employees & Bartenders
Union Local 50, Hotel, Motel & Restaurant Employees &
Bartenders International Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. By telling employees that it did not intend to operate a
unionized restaurant and by taking pictures of employees
who had been engaging in picketing or other protected ac-
tivities, without a valid reason, Karl Kallmann d/b/a
Love's Barbeque Restaurant No. 62 has violated Section
8 (a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Karl Kallmann d/b/a Love's Barbeque Restaurant
No. 62 has not violated the Act in any other manner.
6. Love's Enterprises, Inc. has not violated the Act in
any manner.
THE REMEDY
Having found that Karl Kallmann d/b/a Love's Barbe-
que Restaurant No. 62 has engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action
to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
APPENDIX B
STANDARD OPERATING PROCEDURES
All employees are required to be in uniform and ready to
work their "stations" prior to their scheduled starting time.
All employees are required to enter and leave by the
front door.
All employees are to check their stations thoroughly be-
fore every rush hour and before going off their shift.
All employees must notify the Manager immediately
upon a change of telephone number or address.
All employees are required to read the bulletin board
DAILY.
All employees must "punch in" AFTER they are dressed
in uniform and "punch out" BEFORE removing uniform.
All employees are required to check with person in
charge BEFORE punching out.
No employee is allowed to park on the restaurant's park-
ing lot, without specific permission.
No employee, while in uniform, will sit at a table with a
customer.
No employee is allowed to bring packages into or out of
the restaurant.
No employee is to "86" any item in the restaurant unless
authorized by the Manager.
No employee is authorized to take a bank check that
exceeds the sum of the purchase and all bank checks must
be okayed by Manager, Owner, or his Designee. Proof of
customer's identity is required.
No one should accept a check that has been, or is going
to be, endorsed more than once.
No employee off duty is allowed in the restaurant unless
as a customer.
No employee should ever be idle to the point where he or
she is without something to do during any shift. If it hap-
pens to be a dull period, cleaning, replenishing and lining
things up for the next period should be done.
No employee will write on time cards in area reserved for
time punches.
No employee should ever OFFER a guest any form of
medication.
No personal phone calls may be received or made while
on duty.
Any employees reporting for duty with liquor on their
breath are subject to immediate dismissal.
In the event an employee realizes that he or she is going
to be late or absent, he or she MUST notify the Manager
IMMEDIATELY. Failure to do so may lead to dismissal.
Items written on the guest check should never be
changed. They should be crossed out and initialed by the
Manager, Owner or person in charge.
The "wheel man" will be the only verbal contact between
Kitchen and Dining Room.
No one, other than the wheel man, shall handle, remove
or touch the guest check once it has been placed on the
wheel.
The wheel man will always be addressed by all other
restaurant employees as "Sir" or "Mr. Wheel Man".
Waitresses will be addressed by all other restaurant em-
ployees as "Ma'am" or their number, i.e., "Number 8
please."
Hostesses and Cashiers will be addressed as "Hostess" or
"Cashier."
Busboys will always be addressed as "Busboy."
Dish Machine Operators are to be addressed as "DMO."
Do not offer to handle any customer's belongings (coats,
hats, umbrellas, etc.) unless specifically asked.
The following DO NOTS are Standard Operating Proce-
dure.
DO NOT Chew gum or put toothpick in your hair, ear,
nose, mouth, or on the food.
DO NOT Eat, drink or smoke in front of guests.
DO NOT Put a towel around your neck, on your shoul-
ders, or under your arm.
DO NOT Clean fingernails in front of guests.
DO NOT Smoke in kitchen.
DO NOT Speak louder than necessary.
DO NOT Use profane language.
DO NOT Gossip or criticize a guest or fellow employee.
DO NOT Count tips or "jingle" tips in your pocket.
DO NOT Discuss your tips.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
OBSERVE THE FOLLOWING SAFETY RULES
Look in the direction you are walking. Don't turn sharply
or stop abruptly. Broken glass or china should be placed in
a trash can (check with Manager if you are not sure where
the trash can is). NEVER place broken glass in bus trays.
DO NOT Operate or attempt to operate any piece of
equipment with which you are not familiar.
DO NOT Stand in front of swinging doors. If you must
do so, hold it ajar with your foot. IF FOOD OR BEVER-
AGES are spilled they must be wiped up immediately. If
anything is spilled on a customer's clothing or person, you
should apologize and assist them with cleaning cloth or in
any way possible. You should then report the incident im-
mediately to the Manager, Dining Room Supervisor, or
other designated individual in charge. The Manager of his
designee should then fill out all necessary insurance forms,
regardless of the customer's attitude and even if they assure
the Manager that there is no problem.
CARE AND MAINTENANCE OF EQUIPMENT
All equipment arrives with a manual of operation and a
warranty. If the Owner/Manager does not have these, he
must get them. They should be filed in safe, but readily
accessible location.
NO ONE IS TO ATTEMPT TO REPAIR ANY
EQUIPMENT WITHOUT THE EXPRESS CONSENT
OF THE OWNER/MANAGER
SPECIAL NOTICE
Absolutely no alcoholic beverages are to be consumed by
any employee while on the premises of a Love's restaurant,
unless off duty and in the unit as a paying customer. It
would be a sound business decision to discourage consump-
tion of alcoholic beverages by your employees on the prem-
ises of a Love's restaurant under any circumstances.
APPENDIX C
CRAFT DUTIES & RESPONSIBILITIES
HOSTESS
The Hostess will great each guest with a pleasant smile
and say "Good Morning, Good Afternoon, or Good Eve-
ning," depending on the time of day and "Welcome to
LOVE's." These three greetings are the only ones to be
used. "Hi there", "Hello folks", etc., are not LOVE'S Stan-
dard Operating Procedure. Rather than guessing the num-
ber of people in a party, she should ask "How many in your
party, please?". She is to give each guest a menu when she
seats them. She should ALWAYS have in her mind a pic-
ture of every table in the dining room that is CLEAN, va-
cant and ready for service. This awareness will give the
guests the feeling that, in this restaurant, they are in compe-
tent hands. Whenever possible, she is to seat each succes-
sive party in a different "station". This procedure will not
put a strain on one Waitress while the other Waitresses
remain idle.
During peak periods, when the dining room is filled to
capacity, she is to maintain a written list showing the name
and the number of people in each waiting party. During
these peak periods a second Hostess should be on duty. The
Hostess taking names is referred to as the Door Hostess and
the other is the Floor Hostess. The Hostess working the
door will say "Good Morning, Good Afternoon, or Good
Evening, Welcome to Love's, may I have your name,
please?". She should not forget to say "Thank you Mr. or
Mrs.--." A good Door Hostess will recognize regular
guests and remember their names, so that if time permits,
she may ask, "Was everything all right, Mr. or Mrs.----?,"
while they are paying the check or about to leave the res-
taurant. People like to be remembered.
The Door and Floor Hostesses must work as a team. The
Door Hostess must be constantly on the alert.
She must observe as much of the dining room as possible
whenever she is not taking or calling the name of a guest.
The Floor Hostess becomes the extra pair of eyes for the
Hostess on the door. As soon as a table is vacated, a Bus-
boy must be on the scene. In the event a Busboy doesn't see
the table that should be cleared off (pulled), it becomes the
duty of either Hostess to see that a Busboy pulls the va-
cated table. The Floor Hostess is to notify the Door Hostess
as soon as the table is cleared and set up so that the next
patrons may be seated. When the Door Hostess notifies the
next group of quests that their table is available she should
say "Your Hostess will seat you, thank you for waiting,
Mr.--." The Floor Hostess will seat guests as quickly as
possible and present each guest with a LOVE'S menu, la-
dies first. She should smile, thank them for waiting once
more and wish them a pleasant meal. Remember, menus
must be handed to each guest, not just placed on the table.
A HOSTESS SHOULD NEVER SEAT A PARTY AT
A TABLE THAT HAS NOT BEEN CLEARED,
CLEANED AND SET UP!
The Door Hostess must call (whenever possible) the
names on the waiting list as they were received. The Host-
ess should explain, "There will be only a . . . minutes wait-
ing time." In instance when the turnover is quite rapid, the
preceding is not necessary.
The Hostess must know the number of each waitress,
each table, and each station.
She must know how to make coffee.
Craft Duties and Responsibilities
HOSTESS
She should know the duties of the Cashier and be able to
fill in if needed.
She should see that the floor is kept clean.
She should assist the Waitresses whenever the need arises
and time allows.
All arrangements for private parties and large groups
should be approved by the Owner/Manager.
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