Pancho's Villa

National Labor Relations Board - Board Decisions

Sep 26, 1979

245 N.L.R.B. 440 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pancho's Inc. d/b/a Pancho's Villa and Anchorage
Local Joint Executive Board of the Hotel and Res-
taurant Employees Local 878 and Bartenders Local
883, AFL-CIO and Tulio Garcia. Cases 19-CA-
10503 and 19-CA-10510
September 26, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On June 7, 1979, Administrative Law Judge James
T. Baker issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its 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 brief
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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I In finding, as did the Administrative Law Judge, that Respondent is
engaged in commerce, we rely on the additional fact, admitted by Respon-
dent but not set forth in the Administrative Law Judge's Decision, that
Respondent during the 12-month period from August 30, 1977, to August 30.
1978, purchased, and caused to be transferred and delivered to its facilities
goods and materials valued in excess of $50,000 from sources outside the
State of Alaska, or from suppliers within said State which obtained such
goods and matenals directly from sources outside said State.
The Administrative Law Judge, in his discussion of a meeting between
Respondent's co-owner, Nash Gomez, and Umnion Business Agent Busby,
inadvertently stated that Gomez' refusal to sign the association contract did
not "render futile an effort on the part of Respondent to take further initia-
live," when in fact he was referring to further initiative by the Union. In
addition, the Administrative Law Judge inadvertently referred to a July 7
meeting between the Union and a group of "employees" when in fact this
meeting was with a group of employers. We hereby correct these inadvertent
errors, which in no way affect our decision herein.
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This case
was heard before me at Anchorage, Alaska, on February
21, 1979, pursuant to an order consolidating cases, consoli-
dated complaint and notice of hearing issued on August 30,
1978, by the Regional Director of the National Labor Rela-
tions Board for Region 19.' The consolidated complaint
which alleges violations of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act, as amended, hereinafter
called the Act, is based upon a charge and an amended
charge filed in Case 19-CA-10503 by Anchorage Local
Joint Executive Board of the Hotel and Restaurant Em-
ployees Local 878 and Bartenders Local 883, AFL-CIO,
hereinafter called the Union, on June 20 and August 1,
respectively; and upon a charge filed in Case 19-CA- 10510
on June 20, by Tulio Garcia, an individual. At the hearing,
the parties were accorded full opportunity to make opening
statements, introduce relevant evidence, examine and cross-
examination witnesses, and to file briefs. Counsel for the
General Counsel availed himself of the opportunity to
make an opening statement, counsel for Respondent filed a
legal memorandum addressed to the issues raised in Case
19-CA-10510, and both counsel timely filed briefs with me.
Based upon the entire record in this case, my observation
of the witnesses, and the briefs of the parties, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
Pancho's Inc., d/b/a Pancho's Villa, hereinafter called
Respondent or the Company, is a corporation organized in
1973 under the laws of the State of Alaska, by Ann and
Nash Gomez, husband and wife, who own 99 percent of the
outstanding shares of the corporation. Nash Gomez is pres-
ident of Respondent; Claude Manee, owner of I percent of
the outstanding shares of the Company, is vice president;
and Ann Gomez serves as secretary-treasurer. These offi-
cers, and an attorney-at-law, constitute the board of direc-
tors. Until August 1978, Respondent engaged in the opera-
tion of a restaurant at a single location in Anchorage. In
August 1978, Respondent opened a second restaurant in
Wasilla, Alaska, approximately 40 miles from Anchorage.
Both restaurants operate under the name Pancho's Villa.
In 1975, Ann and Nash Gomez purchased a facility
known as Ann's Club, which they own and operate under a
partnership in which they are the only partners.
Between 1975 and February 1978, Ann and Nash Gomez
managed the Pancho's Villa restaurant operation and Ann's
Club. Considerations relating to the health of Nash Gomez
led in February 1978 to the designation of Ford De Ybar-
rando to manage the Pancho's Villa operation and Joe Lo-
pez to manage Ann's Club. In June 1978, the health of
Nash Gomez improved to a point where he could resume
nominal management of Pancho's Villa in Anchorage.
When the Wasilla operation opened in August 1978, De
Ybarrando became manager of that facility. At pertinent
times, Nash Gomez dealth with the Union concerning
grievances, was responsible for collective-bargaining discus-
sions, and signed the collective-bargaining agreements with
I Unless otherwise specified. all dates herein refer to the calendar year of
1978.
245 NLRB No. 65
440
PANCHO'S VILLA
the Union covering the employees employed by Pancho's
Villa and at Ann's Club.
The Pancho's Villa operation and Ann's Club used the
services of the same accounting firm and and have bank
accounts at the same bank. The insurance coverage of the
two enterprises was obtained from the same insurance com-
pany. Payroll, tax, and accounting statements for Pancho's
Villa and Ann's Club are prepared by the same accountant.
and checks for the two enterprises are signed by Ann or
Nash Gomez.
In February 1979, 11 individuals were employed on a
full- or part-time basis at Pancho's Villa in Anchorage, and
eight individuals were employed on a full- or part-time ba-
sis at Ann's Club. Transfer of employees between the two
facilities is infrequent but has occurred on at least two occa-
sions. No employee on the payroll of one of the facilities
has worked at the other facility while so employed. Food
prepared at Pancho's Villa Anchorage operation is fre-
quently purchased by employees of Ann's Club for con-
sumption at Ann's Club by the employees employed there.2
On the basis of the evidence establishing in common
ownership, financial control, and management of Pancho's
Villa and Ann's Club; centralized control of labor relations
centered in Nash Gomez, and a degree of interchange and
interrelationship of operations. I find that Pancho's Villa
and Ann's Club constitute a single integrated enterprise for
jurisdictional purposes. See, Radio and Television Broadcast
Technicians Local Union 1264 v. Broadcast Service of Mo-
bile, Inc., 380 U.S. 255 (1965).
Respondent admits, and I find, that during the 12-month
period August 30, 1977, to August 30, 1978, Pancho's Villa
and Ann's Club, in the course and conduct of their business
operations, had gross sales of goods and services valued in
excess of $500,000.
Accordingly, I find that at all times material herein, Re-
spondent has been an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. Caro-
lina Supplies and Cement Co., 122 NLRB 88 (1958); Bren-
nan's French Restaurant, 129 NLRB 52, 59-60 (1960).
II. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find, that at all times mate-
rial herein the Union has been a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNLAWFUL CONDUCT
A. The Issues
The consolidated complaint raises the following principal
issues:
1. Whether Respondent failed in its bargaining obliga-
tion under Section 8(d) of the Act by refusing to meet and
bargain with the Union over the terms of a new collective-
bargaining agreement.
2The foregoing is based primarily upon the credited testimony of Ann
Gomez as supported by the credited testimony of Ruth Callan, Tulio Garcia.
Robert Langley, and documentary evidence.
2. Whether Respondent terminated the emplomeint ot
Tulio Garcia for reasons proscribed b the Act.
Respondent contends that its failure to meet and bargain
with the Union over the terms of a successor contract was
due not to the bad faith of its principal managing agent,
Nash Gomez. but to the failure of the Union to make a
proper demand or request for negotiations. Further. with
respect to the termination of Garcia, Respondent contends.
in substance, that Garcia was terminated tor cause arising
from an instance of aggravated insubordination. and in-
directly from Garcia's inability to work harmoniousl with
other employees. Moreover, Respondent asserts that Garcia
engaged in no protected activity of a concerted nature and
that his termination was not motivated by an, consider-
ation relating to the Union.
B. Pertinent Facrt
I. Background facts
As found above. Nash Gomez is president of Respon-
dent, and his wife, Ann Gomez, is an officer of the corpora-
tion. Both are involved in the operation of the Anchorage
restaurant facility on a day-to-day basis. At the Anchorage
restaurant are approximately 12 are employed, including
cooks, waitresses, bartenders, and dishwashers. some of
whom are employed on a part time basis onl\. Tulio Garcia
was employed as main cook from August 1976 until June
19, 1978, when he was terminated.
Commencing in 1973 and continuing until April 30,
1978, Respondent maintained a collective-hargaining rela-
tionship with the Union. and the most recent agreement
between them was one which was effective from MaN I.
1976, through April 30. 1978. Pursuant to practice. this
agreement had been negotiated by the Union with an asso-
ciation representing hotel, restaurant, and bar owners ot
Anchorage. known as CHAR, and then separately pre-
sented to independents, such as Respondent. for adoption.
At pertinent times, Ruth Callan, secretary /treasurer of the
Union, has had primary responsibility for negotiating col-
lective-bargaining agreements on behalf of the Union. She
has been assisted in this responsibility by Watson Busbh. a
business representative.
At all material times, the Union has been the majorit
representative of the employees employed in the following
unit appropriate for collective bargaining:
All employees employed by Respondent at its res-
taurant located on Spenard Road in Anchorage.
Alaska, excluding office clerical employees. bartenders.
guards, and supervisors as defined in the Act.
2. The alleged unlawful conduct
a. Alleged Refusal to bargain
(I) The negotiating meetings
On December 6, 1977. the Union gave written notice of
its desire to open negotiations to amend and modify the
then-current collective-bargaining agreement scheduled to
expire on April 30, 1978. This notice was dispatched to the
441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employers who were members of the association with which
the Union had historically bargained, and to the indepen-
dent restaurant operators, such as Respondent, who had
become signatory to the association agreement. Covered by
the areawide contract, and directly or indirectly involved in
the negotiations, are "hundreds of employers." A copy of
the December 6 letter was dispatched by registered mail to
Respondent at its Anchorage place of business and the re-
turn receipt showing a December 9 delivery date was signed
by someone other than Nash or Ann Gomez.3 The letter
contained a request that the recipients thereof notify Miss
Callan by telephone if the proposed December 28, 1977.
meeting date was not satisfactory. No notice to this effect
was received by Callan from Nash Gomez. who, at prior
times, had exercised exclusive authority on behalf of Re-
spondent in collective-bargaining matters. This December
28 meeting transpired, as scheduled. But no representative
of Respondent attended.
Similar dispatch procedures were pursued by the Union
with respect to a letter dated May , scheduling a negotiat-
ing meeting for May 5. A return receipt showing delivers
date to Respondent of May 5, was signed by an individual
other than Nash or Ann Gomez. Nash Gomez had no rec-
ollection of having received the letter, and he did not attend
the May 5 meeting.
In early June the Union achieved accord with the associ-
ation on the terms of a new collective-bargaining agree-
ment. Soon thereafter, Busby went to Respondent's An-
chorage restaurant and presented a copy of the agreement
to Nash Gomez who perused the document and stated that
he would give some thought to the matter. Gomez returned
the copy of the agreement to Busby.
A few days later Busby returned to the restaurant. and
the doors were locked. He observed an individual in the
office whom he believed to be a bookkeeper and entered
and presented a copy of the agreement to her with a request
that she give the document to Nash Gomez. She answered
that Gormez was not in.
Within a day or 2, Busby returned again to the restaurant
and spoke with Ann Gomez who told Busby that Nash
Gomez was asleep. Busby did not speak with Nash Gomez
on this occasion.
Approximately I week later, Busby returned again to the
restaurant and met with Nash Gomez. Busby asked Gomez
if he had received the copy of the agreement that he had
left, and Gomez answered in the affirmative. Busby asked if
Gomez were ready to sign the agreement, and Gomez an-
swered that he was not. He added that he could not afford
to "go union now." Busby answered that other operators in
the vicinity were "going union" and they could afford to do
so. Gomez answered that he was going to sign the agree-
ment and was going to operate nonunion. Busby inquired
concerning the bartenders, and Gomez stated that they
would be nonunion when their agreement came up for re-
newal. Busby answered that he would picket the restaurant
premises, and this would hurt business at the establishment.
Gomez responded that he would take that chance.
3The identity of the signator was not established in the record, but the
document was offered and received without objection.
Approximately I week later, the Union erected a picket
line at Respondent's place of business in Anchorage. Sev-
eral other restaurant operations in the community were also
picketed.
Nash Gomez visited Busby at Busby's office 3 or 4 days
later and requested the picket line be removed. Bushy re-
sponded that if Gomez would sign the contract which had
been presented to him, the picket line would be removed in
"twenty minutes."
In furtherance of its dialogue with the independent res-
taurant operators, the Union dispatched a letter dated June
27 to, "Anchorage Restaurant Owners." The letter read as
follows:
To Whom it May Concern:
This is to notify you a restaurant contract negotiating
meeting will be held at the Union office. 610 W. Sixth
Avenue, Anchorage at 2:30 p.m. on Friday, June 30,
1978.
Meeting called for ratification of contract changes be-
ginning May 1. 1978.
A copy of the letter is dispatched to Respondent, and the
return receipt was signed on June 28 by an individual other
than Nash or Ann Gomez, Gomez testified that he must
have overlooked the Union's June 27 communication. He
did not attend the meeting on June 30 which was held, as
scheduled. However, Gomez learned that the meeting was
to be held, and on the day following the meeting, he spoke
with one of the restaurant operators who had attended the
meeting and was informed that a large number of operators
had refused to sign the proffered agreement.
Subsequently, on or about July 7, Gomez had a chance
meeting with Callan and was infoirmed that a negotiating
meeting was then in progress, and Gomez attended that
meeting.
Subsequent to the expiration of' the collective-bargaining
agreement on April 30, Respondent continued to adhere to
the contractual wage rates and made no further contribu-
tions to the health and welfare and pension funds or to the
legal aid trust fund.
Busby testified that historically, after negotiations with
the association employers had been completed, a large
group of independent restaurants, which are essentially
small enterprises. "generally appoint a committee to repre-
sent or speak for them" and that committee meets with the
Union. The resultant agreement, which in 1978. contained
the terms negotiated with large enterprises, is circulated by
union representatives to the various independent restau-
rants for acceptance and signature. Busby characterized
this latter document as a "me too" contract. Busby further
testified that to his knowledge Gomez had never appointed
any specific representative to negotiate on his behalf, and
he conceded that in negotiating their contract the represen-
tatives of the large hotels and restaurants in Anchorage had
not acted on behalf of Respondent or other small restau-
rants. In this context, Busby testified as follows:
Q. So, the "me too" contract that you brought to
Nash Gomez was a contract negotiated by persons as
to whom he had no knowledge and no control?
A. He wasn't set in on any of the negotiations.
442
PANCHO'S VILLA
Q. And no person represented him at an, of the
negotiations?
A. No.
Q. When you visited Mr. Gomez, did you offer to
negotiate a contract or was it simply, here's the con-
tract that had been negotiated without your signature?
A. I just handed him the contract. The "me too"
contract to look over. And he never asked me to sit
down and negotiate a different contract with me.
Q. He told you the contract was unacceptable, did
he not?
A. He said he couldn't sign it at the present time.
Q. Did you offer to sit down with him and negotiate
a contract that would be acceptable?
A. No, I did not.
Q. And he, in turn, did not offer a request that you
do that?
A. No.
Q. So, I understand the situation was simply. here's
the contract. Take it or leave it? Either sign this or I'll
put the pickets up?
A. He didn't ask me and I didn't ask him. Of course,
you have to understand, if we negotiate a contract for
every house, you'd be negotiating the year around. It
was standard all over the world. That was a standard
contract for hotels and restaurants, which it was a
standard contract.
Q. So, this was a take it or leave it situation?
A. I didn't say that.
Q. Well, his option was to either sign your proposal
or pickets would be put up?
A. The man didn't ask me to do nothing else.
Q. Nor did you offer to do anything else?
A. No, I did not.
b. The alleged unlawful termination
At the time of his termination on June 19, Tulio Garcia
had been in Respondent's employ for approximately 22
months. On June 19 he served in the capacity of main cook
and had responsibility for the preparation of food on the 4
p.m. to midnight shift which he regularly worked 5 days per
week, Tuesday through Saturday. His hourly rate of pay
was 6.63. Garcia was a member of the Union. A pertinent
times, Garcia worked in conjunction with three or four
waitresses who would transmit food orders from customers
to Garcia for preparation. One of the waitresses with whom
Garcia worked for a time was his wife, Anna. Garcia was
considered by Gomez to be a competent and reliable em-
ployee, but Gomez also received reports during the course
of Garcia's employment suggesting that he had frequent
clashes of temperament with the waitresses. Ann Gomez
observed that the work relationship between Garcia and his
wife was often the source of conflict between Garcia and
waitresses other than his wife. The Gomezes believed that
the disharmony which took place in the restaurant in the
proximity of customers was harmful to the business interest
of the restaurant.
Commencing in December 1977 and continuing until the
time of his termination in June 1978, pursuant to an ar-
rangement with Nash Gomez, Garcia worked an average of
15 hours per week overtime. His overtime schedule began
when the services of a former employee became unavailable
to Respondent. Garcia approached Nash Gomez and re-
quested permission to work overtime, because he was in
need of the money. Gomez agreed to an arrangement
whereby Garcia would be paid $6 per hour in overtime.
The pay ment was to be on a covert basis. Garcia followed a
practice of keeping track of his overtime hours by marking
a calendar. Periodically. Gomez would compensate Garcia
for his accrued overtime work on the basis of Garcia's com-
putations. No deduction from overtime earnings were
made.
Under the terms of the collective-bargaining agreement,
which was effective. by its terms. until April 30. 1978. pre-
mium pay of time-and-a-half was to be paid for overtime
work. Additionally, contributions were to be made on be-
half of employees to the various trust funds, and this contri-
bution was to be calculated on the basis of hours worked,
including overtime hours. At article 20. the collective-bar-
gaining agreement also provided as follows:
Section . It is agreed that the Employer shall and does
hereby recognize seniority rights and that employees
shall be laid off and returned to employment at all time
according to their seniority. Senior employees shall
have preference of fulltime employment at all times.
Seniorityv shall also apply on a reasonable hasis with re-
spect to vacations, hours of work, days off and sll/ as-
signments. Duty station within a shift shall be made by
the employer. (Emphasis supplied.)
On June 9. Garcia and Gomez had a conversation con-
cerning money allegedly due Garcia for overtime work he
had performed during a period of Gomez' prolonged ab-
sence from Anchorage. The discussion transpired at ap-
proximately 4 p.m. in the kitchen area of the restaurant.
The conversation was in Spanish and was witnessed by a
waitresses and a dishwasher. Some customers were in the
diningroom which is screened from the kitchen by a wall
which encloses the kitchen. The discussion evolved into an
argument during which Garcia spoke to Gomez in loud
tones which could he heard in the dining area.
Earlier in the day of June 9, Garcia had approached Go-
mez concerning amounts due him for overtime work, and
Gomez had written a check to Garcia in the amount of
$500. Later, at approximately 4 p.m. that afternoon, Gomez
went to the kitchen where Garcia was working, and Garcia
asked Gomez why he had not been paid an additional $90
due him in overtime. Gomez asserted, in effect, that the
check which he had earlier issued to Garcia covered the
amount Garcia was claiming. Garcia challenged this. A dis-
cussion followed which caused Garcia to become excited
and to shout at Gomez. Garcia stated that he was tired of
chasing Gomez for his money. For his part. Gomez re-
minded Garcia of past favors wherein he had helped Garcia
obtain loans and had assisted him in financial matters. He
stated further that he had hired a new employee who had
cooking skills, and he did not wish Garcia to work overtime
anymore.' Gomez retained his composure through most of
' I specifically find on the basis of Garcia's estimony on cross-examina-
tion and redirect examination, and upon careful scrutinL of the testimony of
Nash Gomez. that Gomez informed (iarcli he did not bish him to continue
to vwork overtime.
443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discussion but as the discussion evolved, Gomez raised
his voice and called Garcia "a little man" and stated that
Garcia was "no good." Garcia responded by inviting Go-
mez to "go out and find out if I am little man or not."
Gomez did not accept the challenge and regained his com-
posure. The discussion ended.
Approximately an hour later, Gomez entered the bar
area of the restaurant, and Garcia was talking at the bar,
Garcia told Gomez that if he was fired he was going home.
adding that if he were going to be fired he would take the
matter to the National Labor Relations Board or the
Union. Gomez told Garcia to go back to work. Garcia did
so and completed his shift.
In the days following the June 9 dispute between Garica
and Gomez, Nash Gomez spoke with Ann Gomez concern-
ing the incident and also expressed ambivalence over
whether or not to terminate Garcia. Nash Gomez also
spoke with De Ybarrando concerning his dispute with Gar-
cia.
Garcia worked on Saturday and Sunday in accordance
with his past practice. Monday was his day off. During the
day, Gomez called Garcia and told him to take Tuesday off
also. Garcia did so but returned to work on Wednesday.
On Wednesday, Garcia spoke with Gomez and informed
him that he wished thereafter to have weekends off. Gomez
stated that he wanted Garcia to continue to work weekends
and to observe Mondays and Tuesdays as his days off. Go-
mez noted that their overtime "deal" was terminated. Gar-
cia responded that he did not wish to work on Wednesdays,
and he wanted weekends off. Gomez declined Garcia's re-
quest.
Garcia worked on Thursday and during the day was in-
formed by Ford De Ybarrando that Gomez wished to
speak with him on Friday. On Friday morning, June 16,
Nash Gomez confided to his wife, Ann, that he was going
to terminate Garcia, and gave as one of the reasons, Gar-
cia's demand that he have weekends off. Then, later in the
day, Gomez informed Garcia that he was going to be termi-
nated. Garcia asked the reason, and Gomez stated that
Garcia was trying to rule his restaurant. Garcia denied that
he was endeavoring to do this and stated that he merely
wanted weekends off. Gomez reminded Garcia of past fa-
vors accorded him in connection with a bank loan, and
Garcia reponded that he was repaying that favor by work-
ing at a $6 rate when the union agreement required pay-
ment of approximately $10 per hour for overtime work.
Garcia added that he believed that Gomez intended to give
the days he had requested to a new employee whom Gomez
had just hired. Garcia stated that he had the greatest senior-
ity and should have the choice of hours. Garcia added that
Gomez had no good reason to fire him, and he was going to
the National Labor Relations Board and the Union because
Gomez had been using him in that he was not paying him
"enough money." Gomez gave Garcia a check for $362, the
amount which Garcia claimed was due him through the
end of May. Gomez made a notation of the amount paid on
Garcia's calendar. After the conversation, Garcia left but
returned to the restaurant to work his scheduled 4 p.m.
shift.
Garcia worked on Friday evening and on Saturday and
Sunday. On Sunday Ann Gomez told Garcia that Nash
Gomez wished to talk with him on Monday.
On Monday morning, June 19, Nash Gomez told his wife
Ann that he intended to terminate Garcia. Then, on Mon-
day morning, Gomez met Garcia in front of the restaurant
and told Garcia that he was terminated and was not needed
at the restaurant anymore. Garcia asked the reason for his
termination, and Gomez told him that he was trying to
"rule his place." Garcia said that all he wanted was Satur-
days and Sundays off. Garcia asserted that he had the most
seniority on the dinner shift and wanted weekends off for
that reason. Garcia added that Gomez had given the work-
days which he wished to a new employee. Gomez again
stated that Garcia was fired. Garcia left Respondent's em-
ploy on June 19.
On September 9, 1978, Respondent made an offer of rein-
statement to Garcia which General Counsel concedes tolled
Respondent's backpay obligation, if any.
Nash Gomez testified that he terminated Garcia for in-
subordination in front of customers and employees on June
9, and because Garcia was endeavoring to tell him when he
was going to work.
In due course. Garcia filed a claim for overtime compen-
sation with the Wage and Hour Division of the United
States Department of Labor. The basis of his claim was the
record of overtime hours as marked on his calendar. As a
result of the resolution of his claim, Respondent made cer-
tain payments.
c. The health issue
From February until late June 1978, Ford De Ybarrando
was in charge of the day-to-day operation of the Anchorage
restaurant facility. In February, Nash and Ann Gomez
traveled to Palo Alto, California. for the purposes of hospi-
talizing their daughter who was suffering from cancer. On
February 4 the details of the hospitalization were accom-
plished, and Ann Gomez remained in Palo Alto while Nash
Gomez was returned to Anchorage. Immediately after his
return, Nash Gomez suffered a nervous breakdown, and
Ann Gomez was successful in having him institutionalized
for a 72-hour period in a facility on the Stanford University
Campus. Medication was prescribed for Nash Gomez, and
he was released with the directive that he continue a daily
regimen of medication. In the following months until early
August, Nash Gomez was subject to wide variations in
mood and he lacked good functional judgment. He was
unable to handle business matters requiring judgmental de-
cisions, and his capacity for work was limited to approxi-
mate'y I hour per day.
d. Credibility
The facts in this case are essentially undisputed. The
findings above made, which rely for efficacy upon testi-
mony of record have been distilled after careful observation
of each witness as he or she testified before me, and from an
evaluation of all record testimony. In those instances
wherein there are substantial substantive variations be-
tween the findings made and the testimony of any wit-
nesses, or group of witnesses, that testimony has been re-
jected. The clarity of testimony elicited from Tulio Garcia
444
PANCHO'S VILLA
and Nash Gomez was compromised, to an extent, b a
flawed proficiency in their respective usage of the English
language. Moreover, the accuracy of the recall of Nash Go-
mez with respect to some salient events is believed to have
been significantly impaired by the state of his health during
the time period most pertinent to this inquiry. The testi-
mony of Ann Gomez concerning the state of Nash Gomez'
health during the period from February though May 1978.
and the role played by De Ybarrando in the management
of the Anchorage restaurant during this time frame, has
been accepted as reliable because of the strong likelihood
that De Ybarrando would have kept Ann Gomez accu-
rately informed of matters pertinent to the operation of the
restaurant and the health of Nash Gomez out of a realiza-
tion that she was deeply concerned with both. Moreover.
the testimony of Ann Gomez regarding the state of mind of
Nash Gomez at pertinent times finds some significant sup-
port in the testimony of Nash Gomez himself. Cf. Fed. R.
of Evid., Rules 803 and 804.
Conclusions
It is axiomatic that an obligation to bargain arises only
from a proper demand. See, Professional Building Mainte-
nance Division of PBM Industries, Inc. 217 NLRB 127
(1975). Absent membership in a multiemployer or joint em-
ployer bargaining group, a single employer incurs no legal
or statutory obligation to adopt contractual terms negoti-
ated or adopted by other employers through associa-
tionwide bargaining efforts, or as a consequence of individ-
ual acquiescence, merely because, in the past, with respect
to other collective-bargaining agreement, that employer has
done so. See, N.L.R.B. v. Independent Association of Steel
Fabricators, Inc., et al., 582 F.2d 135 (2d Cir. 1978), denied
enforcement, in part, 231 NLRB 264.
I find upon the basis of these fundamental precepts, that
the General Counsel failed to prove by the preponderance
of the credible evidence that Respondent breached its statu-
tory obligation to meet and bargain with the Union over
the terms of a successor contract covering the wages, hours,
and terms and conditions of employment of Respondent's
employees employed at its Anchorage restaurant. I reach
this conclusion because there is insufficient evidence in the
record to establish that at any pertinent time Respondent
was the recipient of a proper bargaining request from the
Union giving rise to an obligation on the part of Respon-
dent to meet and negotiate with the Union.
The record evidence reveals that for a number of years
contract terms governing employment in unionized restau-
rant enterprises in the Anchorage area have been fashioned
at the bargaining table at which the Union and the negotia-
tors representing employer association members have held
sway. The hundreds of independents who hold no member-
ship in the employer association, and who have extended
no authority to the association to bargain on their behalf,
have been, it appears, at best, onlookers in these negotia-
tions, with no real voice in the deliberations, and without
portfolio to do more than observe, a diversion which many
of the independents honored through abstention. The real
tenor and substance of these negotiations, in terms of the
myriad independents, was cogently described by the
Union's chief negotiator, Ruth Callan, who testified that
"standard practice" on the part of the Union involved com-
pleting its negotiations with the association group and:
A. ... Then we go to the independent, smaller res-
taurants. Many ot them stated that they didn't have
time to participate in the negotiations so they sign a
"me too" contract.
Q. Okay. So is my understanding correct, after the
contract has been negotiated with the Association.
then a "me too" contract is provided to the indepen-
dent restaurants?
A. Right.
Q. Okay. Was the agreement reached with the Hotel
Association?
A. Yes.
Q. And when was this?
A. About early part of June.
* *
Q. Okay. In June of 1978. Was this only after the
June agreement was reached with the Hotel Associ-
ation that the "me too" contract was taken to the inde-
pendents?
A. Yes.
The General Counsel makes much of the fact that the
Union received no response from Respondent to its Decem-
ber 6 and May I notifications relating to the pendency of
Association bargaining sessions, and the inference is that
Respondent's passivity was in some manner aberrant, or
that it denoted distain for the bargaining process. Nothing
in the record supports such a notion. Initially, the efficacy,
in terms of a bargaining demand, of an invitation of the
type extended by the Union to Respondent and other in-
dependent employers through the device of the December 6
letter, as well as the adequacy of the Union's May I "no-
tice" to Respondent concerning the pendency of a May 5
association meeting, is open to substantial question, and I
find, in the context of the instant record, neither may be
viewed as a bargaining demand imposing an obligation un-
der the statute upon Respondent to be present, or, in the
alternative, to signal its intention not to participate. The
December 6 communication was an invitation to Respon-
dent, and other independents, to attend a mass meeting of
employers devoted to the purpose of negotiating terms of
an association contract. The May I communication was so
belatedly dispatched to Respondent that it was received on
the very day of the scheduled May 5 association meeting.
Standing alone neither of these may be viewed as giving rise
to a legal imperative on the part of Respondent to attend at
the risk of being declared miscreant under Section 8(a)(5) of
the Act. This is so, because the instant record reveals that
past practice had been for the independents, such as Re-
spondent, to wait in the wings, so to speak, until the terms
of the associationwide agreement had been determined, and
then to enter upon the stage, if even obliquely, through an
ad hoc group, whose origin, function, and authority, both in
the past, and more significantly, in the 1978 timeframe, is
murky, mysterious, and ill-defined by the record evidence.
If the 1978 negotiations are to be assumed typical, a type of
445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grapevine or word-of-mouth update and notification proce-
dure is followed by the employer group to informally ap-
prise the various independent restaurateur of the progress
of discussions, or the pendency or occurrence of contract
meetings between the Union and the ad hoc committee and
individual operators who volunteered to attend the meet-
ing. If these sessions result in a degree of departure from the
already negotiated association contract, the record does not
reveal it.
As the General Counsel's evidence evolved, it seems rea-
sonably clear that in early June of 1978, the Union reached
accord on contractual terms with the association (CHAR),
and separately with the association group representing the
large hotels. It was at this point Respondent, and presum-
ably other independents, were approached by Union Agent
Busby, Callan's assistant, and handled the new contract
which constituted the fail accompli of the association en-
deavors, and any input, incidental or otherwise, which may
have been engendered by and through the activities of the
ad hoc committee of independence.
It is essential to find, as I do, that the record contains no
evidence to support a finding that, with respect to 1978
negotiations, Respondent gave authority, either to the asso-
ciation or the ad hoc committee of independents to negoti-
ate on its behalf. Thus, the contract submitted to Nash Go-
mez, Respondent's principal official, by Busby when Busby
made his call upon Gomez early in June, may be viewed as
nothing more efficacious than a Union proposal for a suc-
cessor contract, which Nash Gomez said he would consider.
Then, a week later, Busby met with Gomez and he re-
quested that Gomez sign the contract. Gomez' declination
was one based on economic grounds. While Busby's version
of Gomez' rejoinder suggests that Gomez spoke in terms of
going "nonunion," the focus and thrust of Gomez' com-
ments was economic and not so declarative of a final and
fixed position as to render futile an effort on the part of
Respondent to take further initiative in advancing bargain-
ing proposals different from those contained in the contract
presented to Gomez. None were forthcoming. Busby's strat-
egy in dealing with Gomez was one of inflexibility and eco-
nomic muscle, calculated and designed to force Gomez to
accept the proffered agreement without change, or face the
consequences of picketing. Indeed, this strategy is exempli-
fied not only by Busby's mid-June meeting with Gomez at
which the agreement was proffered and the picketing threat
made, but by Busby's assurances given Gomez 3 or 4 days
after the picketing actually commenced that the picket line
would be removed within "twenty minutes" if Gomez
would sign the agreement which had been submitted to
him. In short, as Respondent avers, a take-it-or-leave-it ap-
proach governed Busby's bargaining strategy and tech-
nique.
In my view of the record, a refusal on Respondent's part
to meet with the Union and negotiate arose, if at all, on and
after June 30, a time period when the Union appears to
have conducted dicussions with the group of independents.
But it is clear from the record that the June 30 meeting of
independents was called by the Union for the purpose of
ratifying contract changes, and not for the purpose of en-
gaging in bargaining table formulation of contract terms,
and Respondent was merely one of many enterprises sum-
moned to attend the meeting. Respondent chose not to par-
ticipate in the meeting, and this decision was entirely con-
sistent with that earlier communicated by Gomez to Busby,
to the effect that the contract terms which were being prof-
fered for adoption by Respondent were unacceptable. The
record is devoid of any evidence of a bona fide bargaining
request on the part of the Union subsequent to June 30.
The chance meeting between Gomez and Callan on July 7
resulted in Gomez attending a group meeting, but it is clear
that on that occasion, as on all occasions delineated by the
record, the Union was meeting with a group of employees,
and Respondent had chosen, as was its right, not to engage
in group negotiations.
Union interest in maintaining uniform conditions and
standards throughout an industry and area, is, of course, a
legitimate union objective, but the legitimacy of this objec-
tive in no manner obviates the necessity for a proper bar-
gaining demand, accompanied by a genuine willingness on
the part of the Union to meet and confer in good faith in a
manner and context giving rise to an obligation on the part
of an employer to be present and participate. I conclude
that the Union failed to make the requisite bargaining re-
quest, and there arose no imperative on Respondent's part
to negotiate with the Union.
Similarly, I find no merit in the General Counsel's con-
tention that Respondent violated Section 8(a)(l) and (3) of
the Act in effectuating the termination of Tulio Garcia.
In support of this aspect of the complaint, counsel for the
General Counsel in his brief contends:
The real reason for Garcia's termination was his de-
mand that he be paid according to the rate called for in
the last effective collective-bargaining agreement; that
he be given the weekends off based on his seniority;
and that he was going to take his grievance to the Na-
tional Labor Relations Board and the Union.
* * *
Based on the above discussion, and the pretextual na-
ture of Respondent's alleged reasons for Garcia's dis-
charge, the only reasonable conclusion is that Garcia
was discharged for his activities described above in this
instant paragraph.
While no cases are cited delineating the precise precen-
dential underpinning for the General Counsel's theory of a
violation, the rationale proffered in support of the com-
plaint has surface similarity to that articulated by the Board
in Interboro Contractors, Inc., 157 NLRB 1295, 1301 (1965),
wherein the Board in finding a violation of Section 8(a)(1)
arising from the termination of some employees for engag-
ing in protected concerted activities stated:
Without question an employer may lawfully discharge
an employee for any reason provided the reason is not
conduct protected by the Act. Again the General
Counsel has the burden of proving that the discharge
was for an unlawful reason. We believe that the Gen-
eral Counsel proved a prima facia case of unlawful dis-
charge by showing that the discharged employees had
made complaints about working conditions which
were a protected concerted activity, that the Respon-
dent was aware of such complaints and resented them,
446
PANCHO'S VILLA
that the discharges were made soon after the com-
plaints were registered, and that Respondent contem-
poraneously refused to give a reason for the discharges
to the discharged employee. These facts warrant the
inference, unless rebutted, that the complaints were the
reason for the discharges. At the hearing, Respondent
did offer evidence which, if accepted, would establish
the motivation for the discharges was for cause. How-
ever, as set out above, this proffered evidence is so
contradictory as to be unworthy of belief. Under these
circumstances, we find, contrary to the Trial Examiner,
that Respondent discharged the Landers because they
had engaged in protected concerted activity and by so
doing violated Section 8(a)(1) of the Act. [Citations de-
leted.]
Initially. I find that Garcia's intemperate display on June
9 served as a precursor to Gomez' decision ultimately to
effectuate Garcia's termination, and that Garcia's insubor-
dination on that occasion was not the sole consideration. In
deciding to terminate Garcia, it is clear, and I find, that
Gomez was motivated also by Garcia's adamant pursuit of
his request for a change in his assigned days of work. I also
find, however, that Garcia's threat to take the matter of his
ultimate discharge to the Board or the Union played no role
in Gomez' decision.
At the outset, it is essential to find, as I do, that, in June
when his clash with Garcia occurred, Nash Gomez was ex-
periencing mental anguish of a personal type having no
relationship to Garcia, or personnel generally. In context of
this, Gomez became embroiled in an acrimonious incident
in which Garcia was the aggressive personality. Any rea-
sonable view of the evidence suggests that Garcia's chal-
lenge to engage in fisticuffs was disturbing to Gomez, given
the state of his health, even though at the time of the chal-
lenge Gomez controlled his emotions, and even though, at
the time, he assumed the facade of treating the challenge
lightly. Gomez' own testimony, which I credit, accurately
defines his state of mind:
I might have quieted down [during the argument] be-
cause I couldn't take too much pressure. I already
found out that it upset me and this might make me
blow my brains. But I was able to cool off and if I'd
known better ... you know, you don't fight with em-
ployees.
It was the trauma of this verbal exchange and challenge
which. I find, formed the basis for Gomez' preoccupation
when an hour later he spoke with Garcia and then to his
wife, Ann, he expressed some disposition to terminate Gar-
cia. Nothing of record suggests that, in speaking with Gar-
cia an hour after the argument on June 9, or later, in ex-
pressing ambivalence over retaining Garcia in his employ,
Gomez further alluded, in any manner, to Garcia's mild
rejoinder that if he were terminated he would go to the
Board or the Union. I am convinced that this remark was
never given conscious thought by Gomez, who, from Fri-
day, June 9, until Wednesday, June 14, evaluated the ques-
tion of Garcia's termination solely on grounds of his insub-
ordination perpetrated on June 9.
It is clear, however, that on Wednesay, June 14, Garcia
lodged his request for a change in his work schedule so as to
provide him with weekends off, and the record requires the
finding that this request, which Garcia advanced on
grounds of seniority entitlement motivated Gomez in decid-
ing to terminate Garcia. I find, however, contrary to the
General Counsel, that Garcia was seeking in his own inter-
est alone to invoke his seniority standing, and he did not act
for the mutual aid and protection of other employees. The
collective-bargaining agreement had expired, and Garcia's
claim found grounding in no statute guaranteeing the allo-
cation of hours or work days based on seniority. Cf. Inter-
horo Contractors, Inc.. supra, New York Trap Rock Corpora-
tion, Nytralite Aggregate Division, 148 NLRB 374 (1964); C
& I Airconditioning, Inc., 193 NLRB 911 (1971), enforce-
ment denied 486 F.2d 977 (9th Cir. 1973); Alleluia Cushion
Co., Inc., 221 NLRB 999 (1975). Nor does the evidence
support the notion that in vying for a change in his days of
work, Garcia was, in some manner, however, indirect, seek-
ing to force Respondent to conform to an established term
and condition of employment. Aside from the ambiguity of
the seniority provision in the expired collective-bargaining
agreement, which lodged with management a wide area of
discretion in applying seniority to decisions involving shift
assignments and hours of work, an ambiguity which neither
custom nor practice under the contract appears to have re-
solved, the imprimatur of the record is that Garcia was
invoking seniority in self-interest as a prequisite of long ten-
ure, without consideration to any interest which might re-
side with other employees in the unit. In short, in analogy
to the observation of the Ninth Circuit Court of Appeals in
N.L.R.B. v. C & I Airconditioning, Inc., supra, I am unable
to find any evidence that Garcia's complaint concerning
seniority was made for the purpose of mutually aiding and
protecting any employees other than himself.
Nor does the evidence support the other facet of the Gen-
eral Counsel's contract enforcement theory arising from
Garcia's purported effort to force Gomez to compensate
him in the future at overtime rates required by the collec-
tive-bargaining agreement, or by Federal statute. The plain
fact is that Garcia made no such effort and his only refer-
ence to overtime compensation during his discussions with
Gomez was a tangential reminder to Gomez that Gomez'
professed, past favors to Garcia had been rewarded by Gar-
cia's willingness to work overtime at rates less than required
by the collective-bargaining agreement. Indeed, Garcia's re-
joinder came after Gomez had declared an end to their
extra-contractual, covert overtime arrangement. No quan-
tum of concerted activity may reasonably be distilled from
these reponses.
Finally, I find no validity in that aspect of the General
Counsel's theory suggesting that Gomez was discriminator-
ily motivated in terminating Garcia by Garcia's reminder
on Friday, June 16, that if Gomez should terminate him he
would seek the aid of the Union. The evidence reveals that,
in point of fact, on that very morning Nash Gomez had
confided to his wife, Ann, that he is going to terminate
Garcia, giving as one of the reasons, Garcia's demand that
he have weekends off. As I view the record, the conversa-
Presumably, the General Counsel does not allege that Garcia's effort to
collect the money due him under his covert overtime arrangement with Go-
mez was in any manner protected or concerted activity under the Act.
447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion which transpired on Friday, June 16, between Nash
Gomez and Tulio Garcia was most notable as an indicator
of Gomez' unsettled state of mind. For, although the con-
versation was a rehash of an earlier dialogue between them,
it is clear that Gomez reached the brink of terminating Gar-
cia but held back. If Garcia's threat to invoke Union aid
served any purpose, I am convinced on the record before
me that it caused Gomez to temporarily stay his hand. I am
unable to infer from the record, however, that Garcia's
threat to go to the Union because Gomez had been "using
him" by not paying him "enough money" was given any
further thought by Nash Gomez in reaching his decision to
end Garcia's employment. The record suggest, and I find,
that Gomez was preoccupied in reaching his decision by
Garcia's act of insubordination and his demand for a
change in his work schedule, and Garcia's threat to seek the
aid of the Union concerning overtime work which was no
longer being offered had no impact on Gomez' thinking. I
find that Garcia's threat to invoke Union assistance was not
a factor in Gomez' decision. 6
In sum, I conclude and find that the termination of Tulio
Garcia was not discriminatorily motivated within the
meaning of Section 8(a)(3) of the Act, nor was it accom-
plished in violation of Section 8(a)(1) of the Act because
Garcia had engaged in protected concerted activities.
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and at all times material herein has
been, an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
' It is noteworthy that the complaint contains no Section 8(aX4) allega-
tion, and in any event, I find nothing in the events of Wednesday, June 14, or
thereafter, to warrant a finding that Garcia's threat to take the matter of his
termination, if and when effectuated, to the National Labor Relations Board
to have been a consideration in his termination. Cf. Hydraflo Valve & Manu-
facturing Co., 158 NLRB 730, 736 (1966).
2. Anchorage Joint Executive Board of the Hotel and
Restaurant Employees Local 873 and Bartenders Local
883, AFL CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following unit of Respondent's employees, is pres-
ently, and has been at all times material herein, an appro-
priate unit for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All employees employed by Respondent at Its restau-
rant located on Spenard Road in Anchorage, Alaska,
excluding office clerical employees, bartenders, guards,
and supervisors as defined in the Act.
4. At all times pertinent herein, the Union has been and
remains the exclusive representative of all employees in the
above-described unit for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment.
5. Respondent did not at any times pertinent herein re-
fuse to meet and bargain with the Union for a successor
collective-bargaining agreement concerning employees in
the above-described unit, and has engaged in no conduct in
violation of Section 8(a)(5) of the Act.
6. Respondent did not violate Section 8(a)(l) or (3) of
the Act in terminating Tulio Garcia from his former posi-
tion of employment.
ORDER7
It is hereby ordered that the complaint herein be, and it
hereby is, dissmissed in its entirety.
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
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.
448