Mel's Bowl

National Labor Relations Board - Board Decisions

Jul 28, 1980

250 N.L.R.B. 1151 (N.L.R.B. 1980)

MEL'S BOWL
American Recreation Centers, Inc., d/b/a Mel's
Bowl and Beverly Freitas, Petitioner, and Hotel
& Restaurant Employees and Bartenders Inter-
national Union, Local 28, AFL-CIO. Case 32-
RD-157
July 28, 1980
DECISION ON REVIEW
Bi3 CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On June 11, 1979, the Regional Director for
Region 32 issued a Decision and Direction of Elec-
tion in the above-entitled proceeding, finding, as
requested by the Petitioner, that the Employer's
approximately 10 bar employees constitute an ap-
propriate unit. The Union, thereafter, in accord-
ance with Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, filed a request for review of the Regional
Director's decision, contending that the unit must
also include the restaurant employees described
below.
By telegraphic order dated July 13, 1979, the
Board granted the request for review and stayed
the election.
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 entire record in
this case with respect to the issue under review and
makes the following findings:
Prior to 1978, American Recreation Centers, Inc.
(ARC), operated a bar and restaurant in conjunc-
tion with its bowling alley in Alameda, California.
The bar and restaurant employees were covered by
a multiemployer restaurant association agreement
adopted by ARC on July 7, 1976.
In November 1978, ARC leased its restaurant
known as Alameda Joe's to an unrelated lessee,
which took over the operation and its employees.
Shortly thereafter, the restaurant lessee, now inde-
pendently incorporated as Alameda Joe's, Inc.,
signed the same restaurant association agreement to
which ARC was already a signatory.
Subsequently, the bar and the restaurant were
operated as independent businesses. The record
shows that after the restaurant was leased out,
ARC relinquished control over hiring, supervising,
disciplining, setting working hours and wages,'
paying salaries, and handling grievances with re-
spect to restaurant employees. Thus, although the
I While Alameda Joe's, Inc., is obligated to pay certain minimum
wages under its contract with the Union (appendixes A-C), the restaurant
corporation sets the specific wage for each of its employecs
250 NLRB No. 142
restaurant and bar employees necessarily continued
to work closely together to serve food and drinks
to the bowling alley patrons, they were less closely
related with respect to wages and working condi-
tions after the restaurant operation changed hands.
The Union contends that its separate contract
with Alameda Joe's, Inc., should be accorded no
weight, since it was merely intended to be "added
protection" for the Union. While the industry
agreement makes any bar licensee the guarantor of
contractual benefits for employees of any food con-
cessionaire, 2 in our view this provision should not
be construed as to render a nullity the separate
contract between the Union and the food service
operator. When Alameda Joe's, Inc., signed the in-
dustry agreement it became directly responsible for
the terms and conditions of this agreement with re-
spect to the restaurant employees, regardless of
ARC's guarantor obligations as lessor of the food
concession.
Moreover, the Union has, to a significant extent,
separately administered its contracts with ARC and
the restaurant corporation. The record reflects that
when contractual health and welfare contributions
for restaurant employees were not paid, the union
business agent worked out an agreement with the
restaurant corporation directly, whereby the latter
would be billed for those payments and no restau-
rant employee would lose benefits or seniority.
Similarly, when restaurant employees became de-
linquent in their dues the union agent wrote to an
official of the restaurant corporation. The union
agent also testified that, before writing a letter, it
was his practice to contact a restaurant supervisor
about any delinquent restaurant employee and the
ARC head bartender about any delinquent bar em-
ployee.
Thus, although the original contractual unit in-
cluded bar and restaurant employees, we find the
unit was effectively severed when ARC leased the
restaurant, at arm's length, to a totally separate
corporation which independently contracted for
the restaurant employees. The Union acquiesced in
the de facto separation of bar and restaurant em-
ployees by entering into a contract with the restau-
rant lessee and administering it separately from the
ARC agreement.a
We conclude that, by reason of the subsequent
contract executed by the restaurant lessee, its en-
forcement, and the relinquishment of virtually all
control by ARC over the restaurant, the restaurant
Sec. 28(c pros lides: "I1 an establishment where the bar licensee
leases the fiood concession to any other person, the bar licensee shall he
responsible for all of the terms and conditions of this Agreement for em-
ployees hired by such other person "
:' See C lohcic Cillis/on. Inc., 1 7t N l R bl ( l9).
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DECISIONS OFl NATIONAL LABOR RELATIONS BOARD
employees have been severed for representation
purposes from the original unit of ARC employees.
Thus, we affirm the Regional Director's finding
that the bar employees of ARC constitute the rec-
ognized unit in this case, and that it is, therefore,
appropriate for purposes of a decertification elec-
tion.4
Accordingly, this case is hereby remanded to the
Regional Director for Region 32 for the purpose of
conducting an election pursuant to his Decision
and Direction of Election, except that the payroll
period for determining eligibility shall be that
ending immediately before the date of issuance of
this Decision on Review. 5
CHAIRMAN FANNING, dissenting:
My colleagues here conclude that the Union ac-
quiesced in a "de facto" separation of restaurant
employees from a unit of bar and restaurant em-
ployees existing at the Employer's premises since
1974. Thus they direct an election pursuant to a pe-
tition to decertify a unit of bartenders despite the
fact that the unit covered by the industry contract
is one of bar and restaurant employees. The "acqui-
escence" they find turns upon the Union having
permitted, or requested, a sublessee of the restau-
rant to sign an adoption of the industry contract.
Employer American Recreation Centers, Inc.,
doing business as Mel's Bowl, holds the master
lease on the premises, consisting of a bowling alley,
bar, and restaurant. The current industry contract
covering the bar and restaurant employees is effec-
tive from July 7, 1976, through July 6, 1982, with a
wage rate and fringe benefit opening in 1981. In
November 1978, ARC sublet the restaurant oper-
ation to Frank and Anna Albanese, by an instru-
ment titled "commercial property sublease." Before
entering into the sublease Mr. Albanese consulted
with the union business agent concerning employee
wages under the industry contract and the oper-
ation as a whole. About that time Albanese appar-
ently signed a short form adoption of the industry
contract, in the same form ARC had signed in
1974.6 The significance of this signing was, accord-
ing to the business agent, "added protection to the
Union." He also characterized it as "two band-aids
being better than one" and testified that he told Al-
' Contrary to the conlention of our dissenting colleague, this conclu-
sion does not ignore the provisions of the lease agreement between ARC
and the restaurant lessee. II may be that ARC and Alameda Joe's, Inc..
have, by virtue of the lease agreement, become joint employers of the
employees here involved. This is an issue we need not reach, since in any
event we find the restaurant unit to be separately appropriale Cf. Dixie
Bell Mils. Inc. 139 NLRB 629. 630 (1962)
5 [Excelsior footnote omilted from publication.]
* The ARC short form adoption dated 7/16/74 is in evidence The
short form signed by Albanese in 1978 is not. However, there is testimo-
ny that the form was that appearing on p. 51 of the booklet containing
the test or the industry contract, which booklet is in evidence.
banese the Union considered that ARC remained
bound for restaurant workers. Albanese did not tes-
tify.
My colleagues attach great importance to this
signing as well as to the fact that later, in 1979, the
Union contacted the Albanese interests when it dis-
covered that the union fringe benefits had not been
paid for restaurant employees, emphasizing that it
was the sublessee, not ARC, that the Union con-
tacted. This conclusion ignores the fact that section
28 of the industry contract provides in subsection
(a) that the terms of the agreement "shall be equal-
ly effective under any subcontract" and in subsec-
tion (c) that "in an establishment where the bar li-
censee leases the food concession to any other
person, the bar licensee shall be responsible for all
of the terms and conditions of this Agreement for
employees hired by such other person." It appears
that ARC qualifies as the bar licensee.
My colleagues also rely upon the Union's han-
dling of dues payment delinquencies, implying that
such delinquencies were taken up with the subles-
see's supervisor, whereas the record shows that the
Union merely contacted a restaurant supervisor for
permission to post a notice of dues delinquencies
on a bulletin board, consistent with its practice of
using a bulletin board for that purpose.
The majority's conclusion that the bar and res-
taurant were operated as "independent businesses"
after 1978 is true only in a limited sense. The sub-
lease of the restaurant contained important restric-
tions. Working hours could not be changed by the
sublessee without ARC's consent. Union benefits
and personnel provisions gave ARC the option of
requiring that "all personnel working on the leased
premises will either join or belong to the appropri-
ate union," or that fringe benefits pursuant to
ARC's union contracts would be paid if nonunion
personnel were utilized.7 There is also a provision
that the tenant will use its best efforts to correct
"problems" in its restaurant "because of the inte-
grated nature" of ARC's and tenant's operations.
In my view the record does not warrant the con-
clusion of the majority that the established unit of
bar and restaurant employees ceased to exist by
reason of the execution of the restaurant sublease
and what followed thereafter. Bar and restaurant
employees continue to work in close proximity.
Bar employees continue to serve drinks in the res-
taurant; restaurant employees continue to serve
food in the bar and lounge. So far as the record
discloses, the same employees who had worked in
the restaurant when operated by ARC continued to
7 The provision also included the option of neither choice, for reasons
that are not apparent in light of subsection 28(c) of the industry contract
quoted above
I 1152
MEL'S BOWL
do so after the November 1978 sublease, apparently
with the same immediate supervisors.
My colleagues cite as Board precedent Clohecyv
Collision, 176 NLRB 616, a completely distinguish-
able case. There the Board set forth its general rule
concerning the appropriate unit decertification
elections: a unit coextensive with the unit previous-
ly certified or with the unit recognized. In Clohecy,
however, the parties had ignored the Board certifi-
cation of a single unit covering two locations. In-
stead the bargaining of the two employers, who
were allied financially and located 4 to 5 miles
apart, proceeded on the basis of a separate unit for
each location, separately negotiated. The result was
two contracts, each individually tailored to one of
the two enterprises involved. The Union acqui-
esced in the separate bargaining. A 3-year contract
was agreed upon for one location and, for the
other, a I-year contract. Unit employees took part
in bargaining only for the unit at their own work
location. Later the Board, noting this fact pattern
and the differing substantive terms of the said con-
tracts, directed a decertification election at one lo-
cation because the unit had been separately recog-
nized by the parties. On such facts, patently, it was
appropriate for the Board to conclude that the
Union acquiesced in the result. There is no parallel
in the facts here before the Board. I am not pre-
pared to amend the Board's rule concerning the ap-
propriate unit for decertification by subscribing to
defacto recognition when the facts do not justify it.
In a later case, after Clohecy, the issue of em-
ployer acquiescence arose. Three Unions adminis-
tered a contract after the certification of one, and a
panel majority of the Board declined to view the
overall unit as effectively divided with employer
consent. In that case-Houdaille-Duval- Wright
Company, A Division of Houdaille Industries, Inc.,
183 NLRB 678-I dissented because all three
Unions had participated in the day-to-day adminis-
tration of the first contract, each with respect to
employees in its schedule as attached to the con-
tract. I noted that the Employer had been agree-
able to attaching to the contract the schedules de-
scribing the three groups of employees, that recog-
nition was granted in terms of the three schedules,
and that, though the contract was jointly negotiat-
ed by the three Unions, it was separately executed
by each. Here I see no comparable facts establish-
ing union consent to the disintegration of the unit
of bar and restaurant employees.
I cannot conclude on the evidence here that the
Union acquiesced in separate units for bar employ-
ees and for restaurant employees. The industry
contract specifically deals with the possible oper-
ation of sublessees in general, as well as sublessees
of the restaurant. The intent to continue coverage
of unit employees in the event of sublease is clear.
Labeling ARC merely a "guarantor" of compliance
with the industry contract, incident to inclusion in
the sublease of a provision that would enable it to
fulfill its commitments to the Union with respect to
the bar and restaurant bargaining unit, does not de-
tract from the continued viability of that unit in
this case.
Accordingly, I would on this record reverse the
Regional Director with respect to the decertifica-
tion petition and dismiss.
1153