Mo'S West

National Labor Relations Board - Board Decisions

Feb 27, 1987

283 N.L.R.B. 130 (N.L.R.B. 1987)

130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mo's- West and Dora A. Nichols , Petitioner, and
Hotel Employees Local No. 9
Mo's Enterprises , Inc. and Kay A. Shafer, Petitioner
and Hotel Employees and Restaurant Employ-
ees Local No . 9. Cases 36-RD-1097 and 36-
RD-1098
27 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, AND STEPHENS
On 12 August 1985 the Acting Regional Direc-
tor for Region 19 issued a Decision and Order in
the above-entitled- proceeding in which he dis-
missed the two decertification petitions on the basis
that the petitioned-for units were not coextensive
with the-existing contractual bargaining unit. In so
finding, the Acting Regional- Director concluded
that the Employers were part of a multiemployer
bargaining group.
In accordance with Section 102.67 of the Board's
Rules and Regulations, the Employers filed a
timely request for review of the Acting Regional
Director's decision. The Employers contended that
the Acting Regional Director erred in finding that
the Employers were part of the multiemployer bar-
gaining group.
By telegraphic order dated 11 October 1985 the
request for review was granted.
The Board has reviewed the entire record in this
case and has, decided to affirm the Acting Regional
Director's Decision and Order, attached as an ap-
pendix hereto.
The record supports the Acting Regional Direc-
tor's finding that the Employers were members of
a multiemployer bargaining group called the Presi-
dents' Council of Food, Beverage, and Lodging In-
dustries of Oregon (Presidents' Council) and had
not timely withdrawn therefrom. Accordingly, we
find that the Acting Regional Director correctly
applied the Board's longstanding rule that a peti-
tioned-for unit in a decertification petition must be
coextensive with the certified or recognized unit.'
The Chairman in his dissent contends that be-
cause the decertification petitions here were filed at
a time when the Union and the Employers could
have withdrawn from the multiemployer bargain-
ing group under the rules set forth in Retail Associ-
ates, Inc.,2 the Board should process the decertifi-
1 Campbell Soup Co, 111 NLRB 234 (1955).
2 120 NLRB 388 (1958). Retail Associates states that in order to timely
withdraw from a multiemployer bargaining unit, a party must give ade-
quate written notice prior to the date set by the contract for modification
or to the agreed-upon date to begin the multiemployer negotiations. Once
negotiations have begun, a party cannot withdraw unless there is mutual
consent, absent unusual circumstances 120 NLRB at 395.
cation petitions in order to preserve the employees'
right of self-determination. The Chairman raises an
issue, however, that was not raised by the Employ-
ers in their request for review. Such issue is there-
fore not properly before the Board and unneces-
sary to comment on in the instant case.
CHAIRMAN DOTSON, dissenting-
Contrary to my colleagues, I would. reverse the
Acting Regional Director's Decision and Order
dismissing the petitions. Rather, I would reinstate
the petitions and remand the case to -the Region for
further appropriate action, including scheduling of
the elections and resolution of the outstanding
issues. I
The petitions in Cases 36-RD-1097 and 36-RD-
1098 seek decertification elections among certain
employees employed by Mo's West and Mo's En-
terprises, Inc. (MEI), respectively.2 Both Mo's
West and MEI are members of a multiemployer
bargaining group called the President's Council of
Food, Beverage, and Lodging Industries of Oregon
(Council). The Employers are signatories to a mul-
tiemployer bargaining contract between the Coun-
cil and the Union, which was in effect from 1
August 1982 through 31 July 1985. This contract
covered those employees in the petitioned-for units.
The Acting Regional Director found that since
there was no evidence that the Employer had with-
drawn from the Council, the petitioned-for units
were not coextensive with the existing contractual
multiemployer- unit, and the petitions must there-
fore be dismissed. I disagree.
The Board has long recognized that the basic
element necessary to create a multiemployer bar-
gaining unit is an unequivocal agreement from the
employers and the union to be bound by group. ne-
gotiations rather than individual bargaining.3 With-
drawal from the multiemployer group may be
achieved by an employer or the union simply by
giving "written notice . . . prior to the date set by
the contract for modification, or to the agreed-
upon date to begin the multiemployer negotia-
tions."4 Once actual multiemployer negotiations
have begun, a unilateral attempt to withdraw from
the multiemployer group is untimely, absent unusu-
al circumstances. Neither the formation nor the dis-
solution of the multiemployer bargaining unit,
1 In his decision, the Acting Regional Director found it unnecessary to
pass on the issues of Petitioner Nichols' supervisory status and of the
chowder manufacturing employees' inclusion in or exclusion from the
bargaining unit
2 Mo's West is a restaurant operating seasonally in Otter Creek,
Oregon. MEI is a corporation which operates two restaurants in Port-
land, Oregon Mo's and Mo's Annex.
2 See Retail Associates, 120 NLRB 388, 393 (1958)
4 Id at 395
283 NLRB No. 23
MO'S WEST 131
however, takes into account the desires of the
group most directly affected by these actions-the
employees.
I have recently stated my strong opposition to
Board policies which put to one side employees'
free choice in favor of so-called stability in bargain-
ing relationships. 5 In my opinion, such decisions
fail to strike the proper balance between the statu-
tory right to refrain from collective bargaining,
guaranteed to employees by Section 7 of the Act,
,and the more general statutory policy of industrial
stability. In Gibbs & Cox, the Board held that a
group of employees which constituted a separate
appropriate unit at the time it sought representation
was later "merged" into a -much larger, geographi-
cally distant, group of employees by the agreement
of the employer and the union. This "merger" later
prevented the smaller group of employees from ex-
pressing its desires in a representation election.
Former Member Dennis and I dissented from this
result, stating our belief that "[t]he appropriateness
of [a] unit cannot be extinguished merely by mutual
intent on the part of an employer and a union to
conduct collective bargaining on the basis of some
other unit."
Here, as in Gibbs & Cox, the employees in two
existing appropriate units were included in a much
larger bargaining unit by the action of the employ-
ers and the union.7 The employees of Mo's West
and MEI have petitioned for decertification elec-
tions in the smaller units covering only these Em-
ployers' employees. The petitions were filed at a
time when either the Union or the `Employers
could have timely withdrawn from the multiem-
ployer bargaining unit. In these circumstances, I
believe that the employees should be given the
same opportunity as the Union and Employers to
"withdraw," in effect, from the multiemployer unit
for the purpose of determining whether the em-
ployees wish to reject or change bargaining repre-
sentatives. As former Member Dennis and I stated
in Gibbs & Cox, we believe that the appropriate ac-
commodation between the conflicting goals of em-
ployee free choice and, bargaining stability is that
"absent unusual circumstances,' any unit which was
appropriate for the purpose of selecting a bargain-
5 See former Member Dennis' and my dissent in Gibbs & Cox, 280
NLRB 953 (1986) (involving the Board's "merger" doctrine) and my dis-
sent in Central Soya Co., 281 NLRB 1308 (1986) (involving the Board's
accretion policy),
6 280 NLRB 953, 959,
° Although the record is devoid of any evidence indicating in what
units the employees were originally organized, the parties' bargaining his-
tory reveals that prior to the negotiations for the 1982-1985 collective-
bargammg agreement, Mo's West and MEI had been treated as separate
bargaining units not included in the multiemployer unit. From this, one
can logically infer that the selection of the bargaining representative oc-
curred in these separate units, rather than in the overall multiemployer
unit
ing representative remains appropriate for the pur-
pose of rejecting that bargaining - representative or
obtaining a new one."8 The Board's insistence that
once an employer and a union have agreed to in-
clude a separate unit of employees in a multiem-
ployer bargaining unit, those employees cannot
make changes in their bargaining 'representative
except through that larger unit, is yet another ex-
ample of the majority's willingness to sacrifice
rights guaranteed employees by the Act to its
views of statutory policy. Allowing an employer
and a union effectively to disenfranchise employees
by including them in a much larger unit because it
meets the need or convenience of the employer and
union is contrary to the employees' statutory Sec-
tion 7 right to refrain from collective action. Stabil-
ity in bargaining relations is a positive goal, but we
must not elevate that goal above the basic princi-
ples of employee self-determination which are
guaranteed in Section 7. Our primary purpose in
effectuating the Act should be that of protecting
employee rights, especially the right freely to
choose or reject a bargaining representative. Ac-
cordingly, I dissent.
S Id.
APPENDIX
DECISION AND ORDER'
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before a hearing officer of the National Labor
Relations Board.
Pursuant to the provisions of Section 3I(b) of the Act,
the Board has delegated its authority in this proceeding
to the undersigned.
Upon the entire record in this proceeding,2 the under-
signed finds:
1. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
2. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes of
the Act to assert jurisdiction herein.3
2 The parties' briefs have been considered As more fully explained in
my Order Reopening Hearing and Notice of Further Hearing in this
matter, dated June 26, 1985, the Union's request to strike Employers' Ex-
hibits I and 3 was granted, accordingly, these exhibits have not been con-
sidered
3 In light of my decision regarding the unit scope, to be discussed
more fully, the question of jurisdiction with respect to these Employers is
moot. However, I note that the purchase by Mo's Enterprises, Inc. of
Mo's West was finalized prior to the July 17, 1985 hearing date and that
the purchasing corporation, during its last fiscal year, had gross revenues
in excess of $500,000 and purchased in excess of $50,000 worth of goods
directly from sources outside the state of Oregon, Thus, Mo's Enter-
prises, Inc., which is in the business of operating restaurants and of manu-
facturing chowder for wholesale distribution, meets the Board's jurisdic-
tional standards for a retail business Inasmuch as Mo's West is now an
Continued
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. The labor organization involved claims to represent
certain employees of the Employer.
4. No question' affecting commerce exists concerning
the representation of certain employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act, for the following reasons:
The Union contends that both petitions must be dis-
missed inasmuch as the petitioned-for units are not coex-
tensive with the existing bargaining unit. Case 36-RD-
1097 seeks an election among certain employees em-
ployed at Mo's West, and Case 36-RD-1098 seeks an
election among certain employees employed at Mo's and
Mo's Annex. The Union asserts that Mo's, Mo's Annex
and Mo's West all are part of a multiemployer bargaining
unit through the multiemployer bargaining group called
the President's Council of Food, Beverage and Lodging
Industries of Oregon (hereafter Council).4 The Employer
denies the Union's claim , contending that neither Mo's
Enterprises, Inc. (hereafter MEI) nor Mo's West prior to
its purchase by MEI ever delegated its bargaining au-
thority-to that or any other multiemployer group.
MEI, is in the business of operating restaurants. Mo's
and Mo's Annex in Newport,, Oregon, have been owned
and operated by MEI for several years. The most recent
contract covering certain employees at these establish-
ments was effective from August 1, 1982 through July
31, 1985. The contract, which was the area agreement
between the Council and the Union with certain modifi-
cations set forth in an Addendum, was signed on behalf
of MEI by Mohava Niemi, a shareholder and corporate
officer, in April 1983. Although the Addendum was not
offered into evidence, it appears that Niemi executed that
document on behalf of MEI in March 1983, at the same
time that she signed the Addendum to the Mo's West
agreement, which Addendum was offered into evidence.
Prior to its purchase by MEI, Mo's West , a restaurant in
Otter Rock, Oregon , was a sole proprietorship owned by
Niemi; however, at the time that the most recent con-
tract covering certain Mo's West employees was execut-
ed, it was a partnership in which Niemi was one of the
partners. The contract covering the Mo's West employ-
ees`ran from August 1, 1982 to July 31, 1985 and was the
area agreement between the Council and the Union with
certain modifications set forth in an Addendum. The Ad-
dendum was signed in March 1983 on behalf of Mo's
West by Niemi; the contract was signed in April 1983 by
Niemi. Both the MEI contract and the Mo's West con-
tract contained the following language on the signature
page directly above Niemi's signature:
The, undersigned employer agrees to be bound by
all the terms and conditions of the attached "Con-
tract and Agreement Between Presidents ' Council
of Food Beverage and Lodging Industries of
Oregon (Restaurants of Oregon Association, Port-
land Hotel Association, Oregon Hotel and Motel
Association, Food Services Executives Association
integral part of the corporation, jurisdiction may be asserted over it as
well as over Mo's and Mo's Annex Carolina Supplies & Cement Co, 122
NLRB 88 (1958)
4 The parties stipulated that the Council meets the Board's jurisdiction-
al standards.
and Independent Operators) with Hotel Employees,
Restaurant Employees Union Local 9 of the Hotel
Employees, Restaurant Employees, International
Union, AFL-CIO," and of the Health & Welfare
and Pension Trusts formed pursuant to the terms of
this Agreement, and to' accept as their representa-
tives the employer trustees presently serving on said
Trust and their duly, elected or appointed succes-
sors. By agreeing to join the said Presidents' Coun-
cil as an Independent Operator, the employer is
bound to the Presidents' Council agreement and be-
comes a member of the multi-employer bargaining
group, but does not waive its right to join any-other
member groups of the Presidents' Council, and may
withdraw from, the Presidents' Council by giving
the Presidents' Council and Union written notice of
withdrawal as provided by law.
The language clearly and unequivocally indicates the in-
tention of the signatory employer to be a part of the
multiemployer bargaining group and there is no dispute
that Niemi did in fact sign the page containing this lan-
guage on ; behalf of both MEI and Mo's West. However,
the Employers' counsel contends that the Employers
never intended to become part of the multiemployer bar-
gaining group or to execute contracts containing such
language . Gordon MacPherson, an attorney involved on
behalf of both MEI and Mo's West in their contract ne-
gotiations with the Union -in 1982 and 1983, testified that
the Council area contract which the Union had provided
to him during negotiations contained the following lan-
guage on the signature page:
The undersigned nonmember of the Presidents'
Council of Food, Beverage and Lodging Industries
of Oregon agrees to be bound by all the terms and
conditions of this Agreement, and of the Health and
Welfare and Pension Trusts formed pursuant to the
terms of this Agreement, and accept as their repre-
sentatives the Employer Trustees presently serving
on said Trusts and their duly elected or appointed
successors.
This is the same language as that which had been con-
tained in the predecessor contracts between-the parties
and which is contained in the copy of the 1982-1985
Council agreement which the parties entered as Joint Ex-
hibit 2. MacPherson, testified that some of the negotia-
tions were conducted outside, his presence, directly be-
tween Niemi and Union representatives. MacPherson
stated that at those sessions at which he was present, the
issue of the multiemployer bargaining group never was
discussed. However, MacPherson was not,present at the
April 1983 session at which Niemi executed the contracts
and thus is unable to testify as to how it came about that
Niemi signed the documents containing the critical lan-
guage . The Employers also produced-as a witness Cindy
McEntee, who was and is MEI's manager and corporate
secretary. McEntee testified that she was present at some
of the negotiation sessions in 1982 and 1983 and that at
none of those sessions was the-topic of, the multiemploy-
er bargaining group raised. She further testified that she
MO'S WEST 133
was present during a portion of the April 1983 meeting
at which Niemi executed the contracts and that there
was no discussion regarding the topic of multiemployer
group bargaining while she was present. Finally, the Em-
ployer presented as a witness an official of the Council
who testified that neither MEI nor Mo's West is consid-
ered by the Council as an official member of that asso-
ciation.
Despite the fact that the Employers had the opportuni-
ty to proffer Niemi as a witness on three different hear-
ing days over a two-month period, and after repeated
notice, including that set forth in the Order Reopening
Hearing and Notice of Further Hearing, that the multi-
employer bargaining unit issue was an issue to be litigat-
ed at the hearing, the Employers failed to present Niemi.
The Employers assert that, despite the clear and unam-
biguous contractual language regarding their becoming
part of the multiemployer bargaining group, that lan-
guage must be ignored; yet, they failed to call Niemi, a
witness under their control, to give evidence which
might mitigate the weight to be accorded to the critical
language in the documents she signed. While McEntee
testified that the multiemployer bargaining group issue
was not discussed during that portion of the April 1983
meeting at which she was present, her testimony in this
regard proves nothing affirmatively inasmuch as she was
absent during a portion of the critical meeting. Thus, no
evidence was presented which might convince me that
there is some reason why the clear and unambiguous lan-
guage of the signed documents is not to be accorded
controlling weight. While the Employers' counsel does
not allege that the Union committed fraud by presenting
for signature the documents which Niemi signed, but
rather asserts that the presentation of the critical lan-
guage was a mistake on the Union's part and Niemi's
signing the documents containing that language was an-
other mistake, the Employers, by failing, to call Niemi as
a witness despite ample notice and opportunity, have
failed to adduce evidence to rebut the clear and unam-
biguous contractual language. Thus, I cannot do other-
wise but conclude that the objective evidence shows that
MEI and Mo's West, through Niemi's execution of the
contracts, clearly and unequivocally expressed their in-
tention to forthwith be a part of the multiemployer bar-
gaining group and, derivatively, a part of the multiem-
ployer bargaining unit. The Kroger Co., 148 NLRB 569
(1964); Morgan Linen Service, Inc., 131 NLRB 420 (1961).
Moreover, the Employers produced no evidence to show
that either or both MET and Mo's West have withdrawn
from the multiemployer -group in a timely and proper
fashion. Having concluded that the unrebutted objective
evidence establishes that both MEI and Mo's West are
part of the multiemployer bargaining group and that nei-
ther has withdrawn from the group, I find that the peti-
tioned-for units are not coextensive with the existing
contractual bargaining unit and that the petitions there-
fore must be dismissed.5 W. T Grant Company, 179
NLRB 671 (1969). Accordingly, I shall grant the Union's
motion to dismiss the petitions and I shall, and hereby
do, dismiss both petitions.
IT IS HEREBY ORDERED that the petitions filed herein
be, and they, hereby are, dismissed.
5 Having so concluded, the issues of petitioner Nichols' supervisory
status and of the unit inclusion or exclusion of chowder manufacturing
employees are moot and need not be addressed