Metropol Restaurant

National Labor Relations Board - Board Decisions

Jan 4, 1980

247 N.L.R.B. 132 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bahram Khadjenouri d/b/a Metropol Restaurant
a/k/a Cafe Bistro and Hotel & Restaurant Em-
ployees and Bartenders Union Local 28, Hotel &
Restaurant Employees & Bartenders International
Union, AFL-CIO. Case 32-CA-1442
January 4, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On September 6, 1979, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
recommended Order of the Administrative Law Judge
and orders that the complaint be, and it hereby is,
dismissed in its entirety.
In view of our adoption of the Administrative Law Judge's findings that
Respondent was not contractually or otherwise bound to engage in bargaining
with the Union during the relevant 10(b) period, we find it unnecessary to
pass on or adopt his discussion of the continuing violation theory.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard in Oakland, California, on May 7 and 8,
1979. The charge and amended charge were filed respective-
ly on December 13, 1978, and January 30, 1979, by Hotel &
Bahram Khadjenouri is the sole proprietor and the restaurant is called the
Cafe Bistro and the Metropol Restaurant. Khadjenouri testified that they are
the same restaurant. The old name is the Metropol, and the new name is the
Cafe Bistro. Khadjenouri moved the restaurant from the uper level of a
building to the lower level in 1977, but retained the same employees and the
same manager. Khadjenouri did all the hiring, and the labor practices and
wage rates did not change because of the move from upstairs to downstairs or
the change of name. Later Respondent reopened the upper floor. There is only
one kitchen in the entire premises.
In about November 1975 the Joint Executive Board of the Hotel and
247 NLRB No. 21
Restaurant Employees and Bartenders Union Local 28,
Hotel & Restaurant Employees & Bartenders International
Union, AFL-CIO, herein called the Union. The complaint,
which issued on January 31, 1979, alleges that Bahram
Khadjenouri, d/b/a Metropol Restaurant, a/k/a Cafe Bis-
tro, herein called Respondent, violated Section 8(a)(5) and
(1) of the National Labor Relations Act, as amended.
Issues
The primary issues are whether Respondent has an
ongoing obligation to bargain with the Union, whether
Respondent refused to honor and abide by a collective-
bargaining agreement with the Union, and whether the
complaint is barred by Section 10(b) of the Act.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case and from my
observations of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a sole proprietorship which owns and
operates a restaurant in Berkeley, California.' In the 12
months immediately preceding the issuance of complaint,
Respondent derived gross revenues in excess of $500,000.
During the same period of time Respondent purchased and
received goods valued in excess of $5,000 which originated
outside of California. Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.'
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
In late December 1975 and early January 1976, James E.
Calvarese was secretary-treasurer and business manager of
Local 595, Bartenders and Culinary Workers Union.'
During that time he also was a consultant to the Union
(Local 28) and assisted it in organizing.
Restaurant Employees' and Bartenders International Union, American
Federation of Labor of Alameda County, AFL-CIO, herein called the joint
board, consisted of Waiters, Waitresses, & Service Crafts Local 31; Cooks'
Union Local 228; and Bartenders' Union Local 52. The Joint Board went out
of existence about November 1975, and the Union (Local 28) became the
successor to the three locals. The parties stipulated and I find that the joint
board was a labor organization within the meaning of Sec. 2(5) of the Act.
' From July 1, 1976, until September 6, 1978, when he was fired, he was
director of organization of the Union (Local 28).
132
METROPOL RESTAURANT
Calvarese first visited Respondent's premises in late
December 1975 or early January 1976. Respondent was
nonunion and was not a member of any association.
Calvarese's own testimony shows that his efforts at "organi-
zation" were directed at the Employer, not at the employees.
There were between 14 and 18 employees employed at
that time, but Calvarese spoke only to one bartender and to
Bahram Khadjenouri's brother. Calvarese then spoke to the
owner, Bahram Khadjenouri. After Calvarese introduced
himself, they discussed the fact that Hospital and Interna-
tional Workers Local 250 was organizing in an area that the
Union thought was its own. At that time Hospital Workers
was picketing a nearby restaurant named Oleg's. Calvarese
said that one of the reasons that he was there was that
Hospital Workers was coming into their jurisdiction. Khad-
jenouri was busy at the time, so they made an appointment
to meet at a later date.
On about January 1 or 2, 1976, Calvarese came back to
Respondent's restaurant where he had a second meeting
with Khadjenouri. This time the Union's business represen-
tative, Ralph Wise, came with Calvarese. Calvarese told
Khadjenouri that the Hospital Workers were very radical
and were raising hell in front of Oleg's, and that if the Union
(Local 28) did not have some kind of a letter of understand-
ing, Respondent would be subject to picketing by the other
union and Respondent would find it hard to negotiate with
that union. Calvarese asked Khadjenouri if Khadjenouri
would be willing to sign a letter with the Union just to
protect himself. Calvarese said that the letter would also
protect the Union (Local 28) because if the Hospital
Workers picketed, Respondent might have to join that
organization, and it would not be good for the Union. They
discussed some particular problems that Respondent had
with regard to welfare and wage rates and Calvarese took
notes.
The findings with regard to the second meeting are based
primarily on the testimony of Khadjenouri. Calvarese in his
testimony denied the substance of Khadjenouri's version of
the meeting. According to Calvarese, they simply bargained
for an agreement. Wise's asserted lack of memory, his
inability to recall incidents, and his vagueness and apparent
lack of candor made his testimony almost worthless.
Khadjenouri was not a fully reliable witness. As set forth
below, I believe that his failure to admit that he signed the
letter of understanding dated January 6, 1976, indicated a
lack of full candor. However, compared to Calvarese and
Wise, Khadjenouri was a veritable fount of veracity. The
demeanor of both Calvarese and Wise as they testified was
such as to cast doubt on everything they said.' Calvarese was
often evasive and misleading. In an affidavit he said that he
spoke to the owner's employees and they said that they were
in favor of the Union. In his testimony he acknowledged that
he only spoke to a bartender and the owner's brother. In an
affidavit he acknowledged that he told Khadjenouri that
Local 250 was organizing in Berkeley and, therefore,
unionization would be inevitable. At the trial his testimony
was evasive on that matter. When he was asked whether he
' The General Counsel argues that Calvarese, who was discharged by the
Union and was testifying under subpena. had no motive to give other than
truthful testimony. However, personal pride would provide a motive for a
union organizer to try to cover up his own sloppy organizational tactics.
told Khadjenouri that unionization was inevitable he an-
swered, "I told him that we had an organizing drive on, and
Local 250 had one on." It was only after he was shown his
affidavit that he acknowledged that he told Khadjenouri
that Local 250 was organizing and therefore unionization
would be inevitable. Though Calvarese finally admitted that
he made that remark, Wise testified that he did not
remember Calvarese saying that the Company was going to
be unionized in any event. Wise suffered a near total lack of
recall. Where Khadjenouri's testimony differs from that of
Calvarese or Wise, I credit Khadjenouri.
Calvarese had a third meeting with Khadjenouri on
January 6, 1979. Wise once again was present. This time
Calvarese brought with him a letter of understanding which
read as follows:
LETTER OF UNDERSTANDING
The Master Agreement now in effect between the East
Bay Restaurant Association, Inc., and the Culinary
Workers and Bartenders Union Local 28 (formerly
Joint Executive Board of the Hotel and Restaurant
Employees and Bartenders International Union AFL-
CIO of Alameda) dated September 12, 1973 is hereby
amended effective January 6, 1976 by and between the
aforementioned Union and the Metropol Restaurant at
2871 Shattuck Ave., Berkeley, CA, as follows:
I. Combination cocktail waitress and bar back-up
$4.00 per hour-4 hour minimum
2. Health & Welfare: Coverage shall commence on
the Ist of the 6th month rather than the 5th as
stipulated in the Oakland Restaurant & Tavern Fund
Trust Agreement.
A. Coverage for all existing employees who qualify
shall commence with March coverage.
B. All working employers shall be entitled to all
Halth [sic] & Welfare benefits.
IN WITNESS WHEREOF, the parties hereto have set
their hands this day of
1976.
For the Union: For the Employer:
Hotel & Restaurant Metropol Restaurant
Employees and Bartenders
Union Local 28
James E. Calvarese
Ralph Wise
Khadjenouri asked Calvarese what kind of legal problems he
could get into. Calvarese replied that Khadjenouri did not
have to worry at all because the letter was going to be
automatically canceled out in about 5 or 6 months and that
everyone was off the hook.' Calvarese said that no one was
going to pursue anything until then. Khadjenouri, Calvarese,
and Wise then signed the letter of understanding and dated
it January 6, 1976.6
Calvarese testified that at the January 6, 1976, meeting
Khadjenouri also signed an individual agreement on the
' It is noted that a new association master agreement was entered into
effective July 7. 1976. That was about 6 months after the letter of
understanding.
'While not denying that he signed the letter of understanding, Khadjenouri
(Continued)
133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inside cover of the master agreement between the association
and the joint board. It is standard practice for such an
agreement to be signed at the same time as a letter of
understanding. Khadjenouri flatly denied signing such a
document and Wise testified that he had no recollection of
Khadjenouri signing it. Calvarese averred that after Khad-
jenouri signed the individual agreement on the inside cover
of the master agreement, he (Calvarese) gave it to Union
Secretary-Treasurer Ray Lane for filing. That document was
never produced at the hearing. The Union's business agent,
Frank Van Kempen, testified that he searched the Union's
records but was unable to find it. He also averred that the
union office had been burglarized on two occasions. Except
for Calvarese, no one testified that he had seen that
document with Khadjenouri's signature on it.7 Between
Khadjenouri and Calvarese, I credit Khadjenouri. The
Union's inability to furnish the document also adds weight
to Khadjenouri's assertion that he never signed it. I find that
the General Counsel has not proved that Khadjenouri signed
the individual agreement on the inside back cover of the
master agreement. However, the master agreement is re-
ferred to, and is arguably incorporated by reference, in the
letter of understanding.
The agreement between the association and the joint
board mentioned in the letter of understanding was effective
September 12, 1973. The agreement provided that the
contract was to remain in full force and effect until midnight
July 6, 1977, with a reopener on wage rates and other
matters on July 6, 1976.8 There is nothing in the agreement
itself which requires independent employers who were not
members of the association to give notice in order to avoid
being bound by succeeding, newly negotiated association
contracts. There is a separate agreement on the inside back
cover of the 1973 association contract which states:
The undersigned individual employer (Employer)
and the Joint Executive Board (Union) hereby agree:
(1) The agreement between them shall be and is the
collective bargaining agreement (Industry Agreement)
between the Union and the East Bay Restaurant
Association, Inc., and the California Licensed Beverage
Association, and
(2) Any subsequent renewals, extensions, changes or
amendments of or to said Industry Agreement (whether
interim or at end of term) that Union and Associations
may make or any new agreement they may enter into
shall, as to all their terms and provisions, automatically
become binding upon the parties hereto unless, at least
90 days prior to the then anniversary date, (interim or
term) either party gives written notice to the other that
it will no longer be bound thereby.
testified that he could not recall signing it. He averred that he thought he
signed a handwritten note. Calvarese and Wise testified that they saw
Khadjenouri sign the letter of understanding. Their testimony was supported
by that of a handwriting expert who credibly testified that the signature on the
letter of understanding was the same as that on exemplars which admittedly
contained Khadjenouri's signature. I find that Khadjenouri did sign the letter
of understanding on January 6, 1976. In all other conflicts relating to this
conversation I credit Khadjenouri and do not credit Calvarese or Wise.
' Union business agent Roger Cardenas averred that fellow business agent
Frank Van Kempen had told him that he (Van Kempen) had seen it.
However, Van Kempen testified at the hearing that he had never seen it.
' The bargaining unit set forth in that contract was:
That is the agreement that Calvarese testified was signed by
Khadjenouri. As indicated, I have found that General
Counsel has not established that Khadjenouri did sign that
agreement. The individual agreement is not an intrinsic part
of the association contract, even though it is physically
located on the inside back cover of the master contract. It is
a separate agreement under which individual employers
agree to be bound by the association contract and also agree
to give notice if they are not to be bound by succeeding
association contracts. Even if the master contract is incorpo-
rated by reference into the letter of understanding that
Respondent signed, Respondent would be bound by the
association contract only until the reopener of July 6, 1976,
or at the latest until the termination date of the contract on
July 6, 1977.'
On July 16, 1976, the association and the Union entered
into a new collective-bargaining agreement effective from
July 7, 1976, through July 6, 1982, with certain reopeners on
January 1, 1978, and July 7, 1981. That is the contract that
General Counsel claims is now binding on Respondent.
However, Respondent's execution of the letter of under-
standing on January 6, 1976, did not bind it to successive
association contracts and the separate individual agreement
that would have bound Respondent to such successive
contracts was not executed by Respondent. The 1973
contract does provide that the contract shall continue "until
the next anniversary date" unless a party desiring a change
gives a written notice of the desired change not less than 90
days prior to the applicable anniversary dates. The contract
specifies the anniversary dates for that purpose as July 7,
1976, and July 7, 1977. '0 Apparently written notice was
given by some party to that master agreement in 1976
because negotiations did take place and a new master
contract was executed by the association and the Union.
Respondent's commitment in its letter of understanding with
regard to the "master agreement now in effect" did not
survive the termination of that contract and Respondent
never undertook to be bound by any succeeding master
agreement.
Though Respondent signed the letter of agreement on
January 6, 1976, it never honored or abided by any contract
with the Union. It never consulted the union contract when
setting hours and working conditions, never made contribu-
tions to various funds called for in the agreement, never gave
reports to the Union concerning the names of employees and
new hires, and never notified the Union about job openings.
On a number of occasions after January 6, 1976, the
Union's business agent, Frank Van Kempen, came to
Respondent's restaurant and spoke to employees to see if
new people had started working. He also spoke to Khadjen-
All employees engaged in or in connection with the preparation.
handling, and serving of food and/or other beverages, including
without limitation those employees in the classification set forth in
Appendices A, B and C and office workers.
'The 90-day written notice mentioned in the individual agreement on the
inside back cover of the master agreement was never sent by Respondent to
the Union. However, as is found above, Respondent did not sign and was not
bound by that agreement.
' That wording is ambiguous. By defining the last anniversary date as July
7, 1977, and stating that a failure to give notice extends the contract "until the
next anniversary date," it appears to contemplate a notice for the 1976
reopener rather than a year-to-year continuance afler 1977.
134
METROPOL RESTAURANT
ouri and told him that he was there to get the names of
people who were working so they would have to join the
Union. In the spring of 1977 some employees filed a
grievance saying they were not being paid union scale. In
March or April 1977 Van Kempen spoke to Khadjenouri
about the matter and Khadjenouri said that he did not have
an agreement with the Union. Van Kempen said that if
Khadjenouri did not abide by the contract he was going to
take the individuals to the labor commissioner. "
A hearing before a labor commissioner was held in July
1977.2 About a week later Van Kempen again spoke to
Khadjenouri. Van Kempen said that Khadjenouri would
have to pay union scale and Khadjenouri again said that he
did not have a contract. Van Kempen testified that he does
not recall speaking to Khadjenouri after that incident. The
Union took no further action until almost a year later. In
May 1978 union business agent Roger Cardenas spoke to a
few of Respondent's employees and found out that they were
not in the Union. He went back to Respondent's premises in
June 1978 and found that the manager was not in. About 5
more months passed before Cardenas went back to Respon-
dent's premises. On November 27, 1978, he went to the
restaurant with business agent Rick Lamb and asked
Khadjenouri for a list of the employees with their nantes,
social security numbers, dates of hire, and classifications.
Khadjenouri said that he did not have a contract. Cardenas
showed Khadjenouri the January 6, 1976, letter of under-
standing and asked him whether that was his signature on it.
Khadjenouri said that he believed it was, but that he did not
have a contract. Cardenas replied that he believed they had a
contract and that he intended to enforce it. Khadjenouri
never furnished the requested information.
On December 13, 1978, more than a year and a half after
Respondent first told the Union that there was no binding
contract and almost 3 years after Respondent refused to
honor the letter of understanding by failing to pay into the
Union's pension and health and welfare funds and by failing
in general to honor the contract, the Union filed the charges
in the instant case.
B. Analysis and Conclusions
The facts set forth above do not paint the Charging Party
in a particularly favorable light. On January 6, 1976, Union
Representative Calvarese went to Respondent without hav-
ing made any effort to organize the employees or secure their
support and fast-talked Khadjenouri into signing a letter of
understanding which was so truncated as to be meaningless
except for its mention of another document. That other
document, the association master agreement, was not given
to Khadjenouri and he was in no position to know what he
was signing. Calvarese took advantage of that ignorance by
telling Khadjenouri that the document would protect both
Respondent and the Union from a raid by another union.
Calvarese also assured Khadjenouri that the document was
going to be automatically canceled in 5 or 6 months (when a
new contract with the association was expected) and that no
one was going to pursue anything until then. The Union's
" Van Kempen testified that during that conversation Khadjenouri opened
a drawer and pulled out a copy of the master agreement. Khadjenouri averred
that he never saw the master agreement until immediately before the trial of
this case. I credit Khadjenouri.
subsequent lack of any timely effort to enforce the contract
is some indication that the Union understood along with
Khadjenouri that the document was meaningless. Respon-
dent never honored the contract and never made contribu-
tions to the various funds. The Union must have known that
no such contributions were being made, but it never made a
protest concerning those nonpayments. About a year and a
half later, in the spring of 1977, an employee protested that
the contract rate was not being paid. About that time
Khadjenouri specifically told union business agent Frank
Van Kempen that there was no contract. He repeated that
assertion to Van Kempen shortly after a labor commissioner
hearing in July 1977.
The Union and the association executed a new contract
which was effective July 7, 1976. However, the Union made
no effort to inform Respondent that there was a new
contract, much less made any timely effort to enforce it.
Respondent never honored the January 6, 1976 letter of
understanding. The Union must have known of that from
the beginning because it was in a position to police payments
to various funds. By March or April 1977 Respondent had
categorically told the Union that it did not have a contract.
Respondent in effect withdrew any recognition it had
previously granted to the Union. It disowned any bargaining
relationship. If the refusal to honor the contract on January
6, 1976, and the refusal to recognize the existence of the
contract in the spring of 1977 were violations of Section
8(a)(5), they could not be reached in November 1978
because they would be time-barred by the statute of
limitations contained in Section 10(b) of the Act. However,
by November 1978 a new business agent was at the Union
and he attempted to reactivate the entire matter at that time
by asking Respondent for a list of employees and other
information. Respondent refused and took the same position
it had in the past, namely that it did not have a contract.
Counsel for the General Counsel is in the unenviable
position of having to argue that Section 10(b) of the Act
applies differently to his case than it does to Respondent's
defense. The General Counsel contends that Section 10(b)
does not bar the alleged Section 8(a)(5) violation, even
though the initial renunciation of the contract and refusal to
bargain occurred more than 6 months before the filing of the
charge, because Respondent again refused to honor the
contract and refused to bargain in November 1978 when the
Union sought information. November 1978 was within 6
months of the filing of the charge. On the other hand, the
General Counsel argues that Respondent is precluded by
Section 10(b) of the Act from proving that the initial letter of
understanding, dated January 6, 1976, which set everything
else in motion, was ineffective and illegal because at that
time the Union did not represent any employees. The
General Counsel may be right with regard to both those
positions on Section 10(b). However, under all the circum-
stances set forth above, including the Union's approach to
Respondent before its approach to the employees, the
Union's assurances to Respondent that the letter of under-
standing was meaningless, the ambiguities present in the
letter of understanding itself, the Union's almost total lack of
" There was no evidence as to the outcome of that hearing.
135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
timely action with regard to representing the employees or
enforcing the contract, and the fact that it took the Union
almost 3 years from the time that it knew that Respondent
was not honoring the contract (making payments into the
various funds) until it filed the instant charge, I do not
believe it would effectuate the policies of the Act to find a
violation even if a technical one were made out. In addition,
I do not believe that the General Counsel has established
even a technical case.
The Board has often held that even though an employer
rejects a request for bargaining which is made more than 6
months before the filing of the charge, a new cause of action
is created if a new request and refusal is made within 6
months of the filing of the charge. J. Ray McDermott & Co.,
Inc., 227 NLRB 1347, 1348 (1977), enfd. 571 F.2d 850 (5th
Cir. 1978);" Cone Mills Corp., 169 NLRB 449 (1968), enfd.
in pertinent part 413 F.2d 445 (5th Cir. 1969). In Pulitzer
Publishing Co., 242 NLRB 35 (1979), the Board reiterated
the proposition that a reaffirmation of a refusal to bargain
within the 10(b) period is not barred by the fact that the
employer had refused to bargain initially outside the 10(b)
period. The question is not always clear, however. In Serv-
All Company, Inc., 199 NLRB 1131 (1972), enforcement
denied 491 F.2d 1273 (10th Cir. 1974), Board Members
Fanning, Jenkins, and Penello disagreed with Chairman
Miller and Member Kennedy. The majority held:
Our dissenting colleagues contend that the complaint
should be dismissed because "all of the operative facts
occurred more than 6 months before the charge was
filed" on March 18, 1971. While it is true that
Respondent's initial refusal to sign or abide by the
contract, the strike, and Respondent's filing of the RM
petition all occurred outside the 10(b) period, there
were other incidents, outlined in the Trial Examiners
Decision, which are sufficient, in our opinion, to
indicate that Respondent's initial refusal to bargain
recurred well within the 6-month period.
In refusing to enforce the Board's decision the circuit court
held at 1275:"
We do not, nor could the Board dissenters, accept the
decision of the Board and consequently we conclude
that the reasoning and findings of the dissent are sound
and dictated by the record in fact. But we also hold that
the majority decision is faulty in law and not deperident
upon the fact issue of whether respondent refused to
sign during the six-month period preceding the com-
plaint.
The First Circuit in NLRB v. Field & Sons, 462 F.2d
748, specifically held that § 10(b) barred prosecution of
a multiemployer association member who had refused
to sign a bargaining agreement in July 1969, was again
requested and refused to sign in July 1970 and then
charged. We agree with that result. The Sixth Circuit in
NLRB v. McCready & Sons, 482 F.2d 872, reached the
same result reasoning that any application of a continu-
ing obligation doctrine under facts remarkably similar
"As that court held:
This circuit has twice held that each refusal to bargain by an employer
under a duty to bargain is a violation of the employer's duty, and that the
to those we have here considered is inconsistent with
the purposes of § 10(b). The court there stated:
An employer so charged would predictably defend
against such a charge by denying that a contract
binding on him had in fact been formed. Indeed, this
is precisely the defense asserted ... before the Board
and here. Establishment of such a defense could and
probably would require reference to facts and occur-
rences surrounding the contract negotiations ....
With the passage of time, those facts become harder
to prove as memories fade and witnesses become
unavailable. Adoption of the position urged upon us
by the Board would allow a charge to be brought at
the whim of a union at any time within the term of
the contract at issue-in this case three years. During
this period, the employer is left in a precarious
position, uncertain of his liability and bearing an
onus of defense which increases with time. This
clearly contravenes the purpose of Section 10(b). 482
F.2d at 875.
We agree with the reasoning of the Sixth Circuit.
In Ocean Systems, Inc., 227 NLRB 1593, 1594 (1977),
eMfd. 571 F.2d 850 (5th Cir. 1978), the Board adopted the
Decision of Administrative Law Judge Platonia Kirkwood,
which held:
Respondent argues here that, although the instant
charge is predicated on the Respondent's refusal of a
bargaining request made by the Union within the 10(b)
period, Respondent's last refusal is but a "continua-
tion" of the refusal-to-bargain conduct it committed
outside the 10(b) period.
Respondent's argument on this point is similar to
arguments, previously considered in a number of Board
cases ruling on similarly postured 10(b) contentions. In
each of those cases, the Board has consistently rejected
such arguments on the theory that each of several
successive refusals to bargain gives rise to a separate
independent cause of action.' I conclude, accordingly,
that, even though Respondent may have engaged in
refusal-to-bargain conduct outside the 10(b) period, its
refusal to recognize and bargain with the Union on
April 22, 1976-but 7 days before the charge initiating
this proceeding-provided the basis for an independent
cause of action on which this complaint properly rests.
See, for example, United States Gypsum Company, 143 NLRB 1122,
1126, fn. 6 (1963); Strong Roofing and Insulating Co.. 152 NLRB 9
(1965). enfd. 386 F.2d 929 (C.A. 9, 1967), affd. on other grounds 393
U.S. 357 (1969).
I am cognizant of the existence of some court decisions expressing a
view contrary to that taken by the Board in applying its concept of Sec.
10(b) in cases involving successive refusals to bargain though not on facts
precisely analogous to those in the case at hand. N.L R.B. v. McCready
and Sons. Inc.. 482 F.2d 872 (C.A. 6, 1973), denying enforcement of 195
NLRB 28 (1972), cited by Respondent in its brief, is one such case.
Decisions by other courts similarly holding are cited by the Sixth Circuit
Court in its opinion in McCready. Assuming those court decisions
provide support for the Respondent's argument, it is clear that the
passage of more than six months' time from one such refusal does not bar
action by the NLRB on a timely complaint based on a subsequent refusal.
"See also City Roofing Co.. 222 NLRB 786 (1976), enfd. 560 F.2d 1370
(9th Cir. 1977), and cases cited therein.
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METROPOL RESTAURANT
Board's decisions do not. I am, of course, bound to follow the Board's
decisions and rulings until the same are reversed by the Supreme Court.
See Prudential Insurance Company ofAmerica. 119 NLRB 768 (1957);
Ranco. Inc.. 109 NLRB 998, 1009, fn. 8 (1954); Lenz Company. 153
NLRB 1399(1965).
Board law thus appears to be that an employer's refusal to
bargain which takes place outside the Section 10(b) period
will not be construed so as to bar a charge alleging a renewed
refusal to bargain where the renewed refusal takes place
within 6 months of the filing of the charge. In substance, a
current repetition of an old wrong is actionable even where
relief on the original wrong is barred by a statute of
limitations. However, as the United States Supreme Court
held in another context in N.L.R.B. v. United Steel Workers
of America, CIO (Nutone, Inc.), 357 U.S. 357 (1958),
"mechanical answers" do not solve "this nomechanical,
complex problem in labor-management relations." The
totality of circumstances present in any specific case must be
considered. A key issue in this case is the validity of the
January 6, 1976, letter of agreement. Immediately after
signing that agreement Respondent, through its failure to
pay into the various union funds, made it clear to the Union
that it was not honoring a union contract.
The Union must have known of this because it was not
receiving payments into those funds. By the spring of 1977
Respondent specifically told the Union that there was no
contract. The issue of the validity of the contract was ripe
for litigation shortly after January 6, 1976, or at the latest in
the spring of 1977. The conflicting claims and the rights of
the parties depended on a resolution of that issue. The
purpose of any statute of limitations is to weed out stale
claims. Under Section 10(b) of the Act the limitation is set at
6 months. The Union waited almost 3 years after the
execution of the letter of agreement and almost 1%2 years
after Respondent's specific statement that there was no
contract to file a charge in the instant case.
If the charge had been filed within 6 months of January 6,
1976, when the letter of understanding was executed,
Respondent would have been in a position where it could
have attempted to defend with a showing that the underlying
agreement was invalid because the Union lacked majority
status. In the absence of a majority no Section 8(a)(5)
violation could be found." If the General Counsel's conten-
tion with regards to 10(b) is taken literally, the result could
well be that a minority union's own dilatory conduct in filing
a Section 8(a)(5) charge could insulate it from a defense that
it wrongfully executed a contract when it represented no
employees. Under the unique circumstances of this case I
believe that the charge is time-barred by Section 10(b) of the
Act.
Moreover, much of the factual support underpinning the
General Counsel's case is questionable. The General Counsel
" Respondent may not now attack the validity of the letter of agreement
because that letter was signed more than 6 months before the filing of the
charge. As the Board held in Tahoe Nugget, Inc. d/b/a Jim Kelley's Tahoe
Nugget, 227 NLRB 357, enfd. 584 F.2d 293 (9th Cir. 1978):
The Board has held, in light of the Supreme Court's decision in Bryan
Manufacturing Co.,' that a respondent may not defend against a refusal-
to-bargain allegation on the ground that original recognition, occurring
more than 6 months before charges had been filed in the proceeding
raising the issue, was unlawful.' Any such defense is barred by Section
10(b) of the Act, which, as the Court explained in Bryan, was specifically
intended by Congress to apply to agreements with minority unions in
contends that the current association master contract, which
was effective July 7, 1976, is binding on Respondent. As is
set forth in detail in section III. A. above, I have found that
Respondent is not bound by that contract. At best the
January 6, 1976, letter of agreement incorporates the master
agreement "now in effect." That was the 1973 association
master contract. There is nothing in that contract under
which independent employers agreed to be bound by
succeeding contracts negotiated by the association. On the
inside cover of the 1973 master agreement there is a separate
agreement form where independent employers do make such
an undertaking. That is a separate agreement that can be
signed by independents, and it is not the master agreement
itself. It appears in the master contract booklet as a separate
item after the signature blocks and the appendices. Respon-
dent did not sign that separate agreement and did not
undertake to be bound by renegotiations of the association.
If Respondent was bound by the 1973 master contract
through its execution of the letter of agreement, that master
contract ended when the new master agreement became
effective July 7, 1976, (which was the reopener time for the
1973 contract) or at the latest by July 6, 1977, when the 1973
master agreement expired by its own terms. Thus Respon-
dent did not have any contractual relation with the Union
after either July 6, 1977, or July 7, 1976. While a recently
expired contract gives rise to a presumption of continued
majority, a presumption is not warranted that the Union
represented a majority in November 1978 when union
business agent Cardenas attempted to reactivate this matter
by asking Respondent for a list of the names of employees.
Either Iy or 2 years had by then passed since the
expiration of the contract, and the Union was conspicuous at
Respondent's premises only by its absence.
Under these circumstances I find that the General
Counsel has not established by a preponderance of the
evidence that the Union represented a majority of Respon-
dent's employees in November 1978. 1 find that Respondent
had no obligation to bargain with the Union as of that date.
For all the reasons set forth above, I recommend that the
complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The General Counsel has not established by a prepon-
derance of the credible evidence that Respondent violated
the Act as alleged in the complaint.
order to stabilize bargaining relationships. That means that Respondent
cannot now attack the Union's majority status among its employees in
the single-employer unit when recognition was originally extended and
that we must accept as a fact that the Union represented a majority in
that unit at that time.
Local Lodge No. 1424, International Association of Machinists. AFL-
ClO[Bryan Mfg. Co.] v.N.LR.B.. 362 U.S. 411 (1960).
' North Bros. Ford, Inc.. 220 NLRB 1021 (1975). and cases cited
therein.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions of law,
and the entire record, pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
ORDER '6
The complaint is dismissed in its entirety.
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
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