Queen Mary Restaurant Corp.

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 776 (N.L.R.B. 1975)

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Queen Mary Restaurants Corporation ; and Q. M.
Foods, Inc. and Marine Cooks & Stewards Union,
affiliate of the Seafarers' International Union of
North America, AFL-CIO. Cases 21-CA-11684,
21-CA-11746,21-CA-11790, and 21-CA-12068
July 30, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On August 20, 1974, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
and a supporting brief, and the General Counsel filed
an answering 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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
The Administrative Law Judge finds that Respon-
dents violated Section 8(a)(5) and (1) in that Respon-
dents failed to bargain with the Union in good faith.
We agree.
It is axiomatic that each party to the negotiations
must participate in bargaining with a sincere desire
to reach agreement and must make a sincere effort to
reach a common ground. The presence or absence of
such an intent must be ascertained from the totality
of each party's conduct. A review of Respondents'
total conduct establishes that Respondents' effort
was to frustrate meaningful bargaining. The bargain-
ing took place against the background of Respon-
dents' efforts to defeat the Union by committing a
large number of unfair labor practices and, indeed,
its efforts to cover up some of those unfair labor
practices by interfering with the testimony of wit-
nesses at a Board meeting. Having failed to defeat
the Union by these means, Respondents sought to
carry out their chief negotiator's threat that Respon-
dents would not reach agreement with the Union for
5 years. In furtherance of these efforts Respondents
acted unilaterally with respect to the critical subjects
of wages and seniority, denied the Union informa-
tion necessary to informed bargaining, and, in bad
faith, placed the Union in an untenable position with
respect to union security and the hiring hall.
The Administrative Law Judge sets forth fully the
history of Respondents' actions with respect to orga-
nizing activities on board the Queen Mary. Following
is a summary of some of the history which bears on
our determination with respect to this allegation. Re-
spondents opened for business on the Queen Mary in
May 1971. Before opening to the public, Respon-
dents entered into a contract with the Culinary
Workers Union containing union-shop and hiring
hall clauses . Subsequently, Respondents' contract
with the Culinary Workers was nullified and their
recognition of the Culinary Workers withdrawn pur-
suant to a settlement stipulation approved by the Re-
gional Director for Region 21. There followed three
elections . The Culinary Workers Union was eliminat-
ed as a result of the first election. Following the eli-
mination of the Culinary Workers, Respondents be-
gan a campaign of unfair labor practices in an effort
to defeat the Marine Cooks and Stewards, the re-
maining union on the ballot. As found by Adminis-
trative Law Judge Richard J. Boyce in his Decision
of June 5, 1973,1 Respondents' campaign against the
Marine Cooks included the suspension and discharge
of employee Julio Monzon and a large number of
violations of Section 8(a)(1), including creation of the
impression of surveillance of union activities, threats
of loss of jobs if the Marine Cooks won the election,
interrogation regarding the union activities of vari-
ous employees, threats to close down if the Marine
Cooks engaged in a strike, statements to employees
that if the Marine Cooks won the election it would
cause employees illegally in the country to lose their
jobs, threats of loss of benefits if employees voted in
the Marine Cooks, promises of wage increases if the
Marine Cooks lost the election, a statement that it
would be futile for the Marine Cooks to win an elec-
tion because it would be 5 years before Respondents
would agree to a bargaining contract, threats to ter-
minate employees if the Marine Cooks won the elec-
tion , promises of pay increases to induce employees
to withhold their support for the Marine Cooks, and
institution of profit-sharing and health and welfare
plans in an effort to hold antiunion sentiment and to
quell employee unrest while objections to the June
election were unresolved.
Respondents' chief negotiator, John Nichols, was
responsible for a number of these unfair labor prac-
tices . It was he who made the statement that a union
victory would be futile because it would be 5 years
before Respondents would agree to a bargaining
contract with the Union. It was also Nichols who
threatened at a meeting of employees that if the
Union won they would not have a profit-sharing
plan, improperly solicited employee complaints,
i Cases 21-CA-I 1359 and 21-CA-11382 No exceptions were filed to Ad-
nun,strat,ve Law Judge Boyce's decision and it was adopted by the Board
on July 5, 1973
219 NLRB No. 134
QUEEN MARY RESTAURANTS CORPORATION
threatened employees with discharge of union adher-
ents, and promised wage increases if the Union lost.
The Union won the December 18, 1972, election and
was certified on December 27, 1972.
Following the Union's certification, bargaining be-
gan in January 1973.2 Respondents' failure to meet
their bargaining obligation is fully detailed by the
Administrative Law Judge. Several aspects of this
failure are worthy of emphasis.
Respondents' lack of sincerity with respect to their
bargaining obligation was quickly demonstrated.
Thus, during the early stages of the bargaining and
with a union wage proposal before them, Respon-
dents on March 7 unilaterally raised the wages of
unit employees without any prior notice to the
Union. The amounts of the increases were de-
termined by the provisions of the Culinary Workers
contract in the area. The Administrative Law Judge,
in our opinion correctly, finds that Respondents vio-
lated Section 8(a)(5) and (1) by acting unilaterally.'
On March 21, Respondents, through Nichols and
another agent, offered $150 to an important witness
in the hearing before Administrative Law Judge
Boyce and told the witness to leave town in an effort
to prevent the witness from testifying. On March 22,
Respondents, again through Nichols and another
agent, urged another witness in that hearing to testi-
fy, regardless of the truth , in a manner advantageous
to Respondents. Administrative Law Judge Boyce
found that Respondents violated Section 8(a)(1) by
engaging in this conduct.
On April 18, Respondents simply ignored the re-
quest of Union Negotiator Joe Goren that he be per-
mitted to be present when a seniority list was dis-
cussed, and instead bargained directly with
employees on the subject. The Administrative Law
Judge, in our opinion, correctly finds that Respon-
dents violated Section 8(a)(5) and (1) by doing so.4
Beginning in late April, Respondents refused to
supply the Union with information as to seniority,
hiring dates, numbers of hours worked, and Respon-
dents' health and welfare plans. This information
bore on several critical areas of bargaining. The Ad-
ministrative Law Judge, in our opinion, correctly
finds that Respondents violated Section 8(a)(5) and
(1) by refusing to supply this information .5 _
Thus, Respondents demonstrated an unwillingness
to meet their bargaining table obligations with re-
spect to the vital subjects of wages, seniority, and
2 All dates are in 1973 unless otherwise indicated.
7 Our dissenting colleague , while not indicating any disagreement with
this finding, makes no mention of it.
4 Again, our dissenting colleague , while not indicating any disagreement
with this finding , makes no mention of it.
6 Once again, our dissenting colleague , while not indicating any dis-
agreement with this finding , makes no mention of it.
777
health and welfare plans. Unilateral action, along
with refusals to supply information of necessity,
makes meaningful bargaining very difficult for a
union, tending to frustrate bargaining, something Re-
spondents' experienced bargainers undoubtedly envi-
sioned.
In addition, the Administrative Law Judge finds
that Respondents' course of bargaining with respect
to union security and hiring hall further demon-
strates their desire to frustrate meaningful bargain-
ing. We agree. Respondents, even before bargaining
began, ascertained that hiring hall and union security
would be key issues . They further determined that
they would not yield on these issues, in part because
in Respondents' judgment the Union could not set
up an effective strike and shut Respondents down.
The full importance of the decision not to grant
union security is readily apparent when it is realized
that other subsidiaries of Respondents' parent 6 had
granted to the Culinary Workers such provisions
and, consistently, Respondents granted such provi-
sions in the contract they entered into with the Culi-
nary Workers covering the employees on the Queen
Mary. Thus, Respondents were proposing that the
Marine Cooks accept a contract without union secur-
ity and hiring hall at a time when Respondents' par-
ent corporation was willing to grant such provisions
to the Culinary Workers. This renders suspect Re-
spondents' asserted reliance on a belief that they did
not have the moral right to make that decision for the
employees who had voted against the Marine cooks.'
With respect to Respondents' assertion in rejecting
these provisions that they represented the people that
voted against the Union, as the Administrative Law
Judge finds, a union, once certified as collective-bar-
gaining representative of the employees in an appro-
priate unit, has the duty to represent all employees.
There is, of course, the correlative duty on the part of
the employer to recognize the certified union as a
representative of all the employees. Further, when
the Marine Cooks attempted to give ground in order
to meet Respondents' objection with respect to cur-
rent employees by agreeing to a grandfather clause,
Respondents rejected it on the basis that it was the
same thing as union security. Respondents asserted
as economic justification for their position that they
could not afford to cut themselves off from the Culi-
nary Workers Union pool. Respondents' rejection of
the proposals on this ground is weak in view of Ni-
chols' testimony that the Queen Mary hires employ-
ees who either walk in off the street, are referred by
other employees, or are obtained through advertising
6 Specialty Restaurants is Respondents' parent.
7 Roanoke Iron & Bridge Works, Inc., 160 NLRB 175 (1966), enfd. 390
F.2d 846 (C.A.D.C., 1967), cert. denied 391 U.S. 904 (1968); Capitol Avia-
tion, Inc., 152 NLRB 745, 753 (1965).
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the newspaper, demonstrating that Respondents
are not dependent on the Culinary Workers Union as
a source of employees. Further, Respondents' con-
tention that they would be cut off from the Culinary
Workers pool is suspect. This contention is based on
their premise that by granting union security to the
Marine Cooks they would be creating a dual union-
ism situation. However, the evidence in the record
establishes that the Marine Cooks do not regard the
Culinary Workers as a hostile dual union and that
there is nothing to prevent members of the Culinary
Workers from joining the Marine Cooks. In fact,
two-thirds of the Marine Cooks, including Marine
Cooks Business Agent Frank Gill, are also members
of the Culinary Workers,8 which also serves to dem-
onstrate the fallacy of the dissent's claim that the
prospect of dual unionism would dissuade members
of the Culinary Workers from working for Respon-
dents.
By contrast, the Marine Cooks proposed or agreed
to a number of different modifications of the union-
security and hiring hall clauses. The Marine Cooks
requested that Nichols agree to the same hiring hall
provision that a subsidiary of Respondents' parent
corporation had with the Culinary Workers. Federal
Mediator Vierra proposed an agency-shop agreement
and grandfather clauses. These were acceptable to
the Marine Cooks but not to Nichols. At the May I
meeting, Union Negotiator Joe Goren stated that
while the Marine Cooks wanted a standard hiring
hall and union-security clause he was willing to mod-
ify his position and give ground in attempt to work
out something agreeable to Respondents. The cred-
ited testimony shows that Nichols avoided this sub-
ject except for stating that he would agree to the
Long Beach contract (a Culinary Workers contract
with a multiemployer association which includes a
subsidiary of Respondents' parent) without the hir-
ing hall or union-security provisions found therein.
At the May 9 meeting , Goren again offered to dis-
cuss any proposal Nichols might offer and stated
that he would agree that the Marine Cooks would
send Respondents only the people that Respondents
had already interviewed and approved. Nichols did
not respond to this proposal. Thus, it is apparent that
Respondents rejected union security and hiring hall
as part of their effort to carry out Nichols' threat to
8 The Administrative Law Judge ruled that the question of what constitut-
ed a dual union under the terms of the Marine Cooks constitution was an
internal union matter . He therefore cut off Respondents ' cross-examination
of Union Negotiator Joe Goren on that subject . Even if we assume that
ruling was erroneous , the error was not prejudicial inasmuch as Gill testified
later in the hearing during examination by Respondents' counsel that Ma-
rine Cooks members belong to both Unions, thus establishing that the Ma-
rne Cooks does not bar its members from belonging to the Culinary Work-
ers
frustrate the reaching of an agreement for 5 years.
The presence or absence of a sincere desire to
reach agreement must be ascertained from the totali-
ty of each party's conduct. In concluding that Re-
spondent did not bargain in bad faith, our dissenting
colleague does not give consideration to the totality
of conduct detailed above.
Our dissenting colleague seeks to make much of
the fact that agreement was reached on a large num-
ber of subjects. However, agreement as to these pro-
visions was reached despite Respondents' efforts to
frustrate the bargaining. Moreover, the agreements
were illusory. Respondents' experienced negotiators
were well aware that they had placed the Union in an
untenable position as to union security and hiring
hall and that therefore the reaching of agreement on
a contract had been frustrated. Thus, they could give
the appearance of reaching agreement on other sub-
jects, knowing no complete agreement would be
reached, and thereby make it appear that they were
moving toward a complete agreement when in fact
they were seeking to frustrate such an agreement.
Though appearing to agree as to some subjects, they
were in reality agreeing to nothing. Bad-faith bar-
gaining is no less unlawful because it is done with
sophistication.'
Thus, we find in agreement with the Administra-
tive Law Judge that Respondents failed to approach
the bargaining table with a willingness to enter into
discussions with an open mind and a sincere intent to
reach agreement. Accordingly, we adopt the Admin-
istrative Law Judge's finding that Respondents vio-
lated Section 8(a)(5) and (1) in this respect.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondents Queen Mary Restaurants
Corporation, and Q. M. Foods, Inc., Long Beach,
California, their officers, agents, successors, and as-
signs , shall take the action set forth in the said rec-
ommended Order.
MEMBER KENNEDY, dissenting in part:
The record in this case conclusively demonstrates
that the strike which began on May 25, 1973, was
caused by the parties' inability to agree on a collec-
tive-bargaining contract which provided for union-
security and hiring hall. From the commencement of
negotiations , the Union insisted that it would not ac-
cept a contract which did not contain union-security
9 N L R B v Herman Sausage Company, Inc, 275 F.2d 229, 232 (C.A., 5,
1960).
QUEEN MARY RESTAURANTS CORPORATION 779
and hiring hall provisions. I think the conclusion is
inescapable that the sole cause of the strike was the
Respondents' refusal to capitulate to the Union's de-
mand for union-security and hiring hall clauses. In
my judgment, the record herein reflects nothing more
than a classic test of strength caused by rigid adher-
ence to lawful positions by the Union and the Em-
ployers. I fear that our system of free collective bar-
gaining will be seriously jeopardized if reviewing
courts uphold the majority decision herein which re-
quires, in effect, an employer either to capitulate to
the demand for union-security and hiring hall or be
adjudged guilty of a refusal to bargain. H. K. Porter
teaches that the Board "is without power to compel a
company or a union to agree to any substantive con-
tractual provision of a collective-bargaining agree-
ment." 10
Queen Mary Restaurants Corporation and Q. M.
Foods, Inc., Respondents herein, are separate corpo-
rations which, since May 1971, have jointly operated
several restaurant and banquet facilities aboard the
former ocean liner, Queen Mary. The engines of the
ship have been removed and the ship is permanently
encased in concrete at Long Beach , California, where
it is owned and operated by the city as a hotel, con-
vention center, and museum. Respondents' services
are provided pursuant to a lease with the city of Long
Beach.
The Charging Party, Marine Cooks & Stewards
Union (hereafter Marine Cooks or Union), was certi-
fied on December 27, 1972, as the representative of
Respondents' employees aboard the Queen Mary.
According to Joe Goren, port agent for the Los An-
geles branch of the Marine Cooks, the Union has for
the past 50 years represented employees assigned to
ships operating offshore or in the intercoastal water-
way system. Respondents' employees, according to
Goren, are the first and only land-based employees
to be represented by the Marine Cooks. Virtually all
of the organized restaurant and banquet workers
throughout the Greater Los Angeles and Long Beach
area are represented by the Culinary Workers
Union. ll
1. 8(a)(5) violation
My colleagues adopt the conclusion of the Admin-
istrative Law Judge that Respondents violated Sec-
tion 8(a)(5) by engaging in "surface and bad-faith
bargaining." On this record, such a conclusion is un-
to H. K Porter Co. v. N.L.R.B., 397 U.S. 99 (1970), denying enforcement
of 172 NLRB 966 (1968).
11 Local Joint Executive Board of Hotel and Restaurant Employees and
Bartenders International Union of Long Beach and Orange County, AFL-
CIO.
tenable. It is untenable because the primary factor
relied on by the Board in finding surface bargaining
violations-an uncompromising and unyielding atti-
tude at the bargaining table-is noticeably absent.
Fourteen negotiating sessions spanning a 4-1/2-
month period resulted in agreement on substan-
tially all issues except union security and hiring hall.
During the 14 sessions, each of the 3 sets of proposals
offered by the Marine Cooks was met by Respon-
dents with a set of counterproposals. Respondents'
counterproposals cannot be characterized "as one
which the employer could not `with a straight face
and in good faith' have considered acceptable to any
`self-respecting union.' " 12
The record clearly reflects that agreement was in
fact reached on well over 90 percent of the issues in
dispute. In several instances, agreement was made
possible through Respondents' acquiescence in the
Marine Cooks proposals. By the end of the second
session , for example, agreement had already been
reached on such issues as reporting pay, pay for relief
employees, discharges, pay periods, and overtime-
the last two being concessions by Respondents. Sub-
stantial progress was also made at the third (e.g., va-
cations, leaves of absence, apprenticeship programs,
work schedules) and fourth (e.g., health and welfare
trust fund, trainee trial periods, free meals for em-
ployees) bargaining sessions.
By May 22-eight bargaining sessions later-only
seven unresolved issues remained: the length of the
workweek, seniority, the number of paid holidays,
specifics of a health and welfare plan, union security
and hiring hall, retroactivity, and a successor provi-
sion. In their final set of counterproposals offered
May 24, Respondents capitulated on the workweek,
holidays, and a health and welfare plan. According-
ly, with the exception of successorship which had
been referred by each party to counsel and seniority
which had been agreed to in principle if not in lan-
guage, the only issues remaining to be resolved when
the employees commenced striking on May 25 were
retroactivity and union security and hiring hall. On
these facts it cannot be said that Respondents ap-
proached the bargaining table with an uncompromis-
ing, unyielding attitude.
Given the fact that the primary factor normally
relied on to support a surface bargaining violation is
absent here, on what basis, then, is the violation
found? It is predicated primarily on Respondents'
failure to capitulate on the issues of union security
and hiring hall. However, in my judgment, the Union
was no less adamant on these subjects than were Re-
12 See N.L.R.B v MacMillan Ring-Free Oil Co, Inc., 394 F.2d 26 (C A. 9,
1968). citing N L.R.B v Reed & Prince Manufacturing Company, 205 F.2d
131, 139 (C.A. 1, 1953).
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondents. And when one examines the overall
framework within which these two subjects were ne-
gotiated, the reasons for both parties' insistence upon
their respective positions is understandable. In my
opinion it was lawful and proper for the Union to
insist upon a union-security provision in the collec-
tive-bargaining agreement. It was also lawful for the
Respondents to refuse to yield on this issue.
The concept of a union-run hiring hall is one of the
fundamental principles of the Marine Cooks. As stat-
ed in its constitution:
We, American merchant seamen who are
members of the Stewards Department, realizing
the value and necessity of a thorough organiza-
tion of seafaring men and allied workers, have
determined to form a union based upon the fol-
lowing principles:
Whatever right belongs to one member be-
longs to all members alike, as long as they re-
main in good standing in the Union.
First of these rights is the right of American
seamen and allied workers to receive their em-
ployment through their own Union Hall, without
interference of employers, crimps, shipowners,
fink halls or any shipping or other bureaus
maintained by the Government. [Emphasis sup-
plied.]
Accordingly, negotiators for the Marine Cooks were
precluded by the language of their own constitution
from executing a contract without an exclusive hiring
hall provision. Similarly, given the recent economic
conditions of the shipping industry, the Union was
reluctant to sign an agreement without provisions for
union security and hiring hall. As noted earlier, Gor-
en testified that Respondents' employees are the first
land-based employees within his recollection ever to
be represented by the Marine Cooks. With large
ocean liners like the Queen Mary gradually being
phased out of operation, the offshore opportunities
for cooks and stewards are likely to diminish in the
future. Under such circumstances, it is understanda-
ble that the Marine Cooks were anxious to solidify
their initial foothold on a land-based operation with
a union-security provision. As succinctly stated by
Goren, "[t]he whole point of the contract was the
necessity to having some sort of a union security
clause."
The strong pressures on the Marine Cooks negoti-
ators for acquiring union-security and hiring hall pro-
visions were matched by equally strong, lawful pres-
sures on Respondents' negotiators for avoiding such
provisions. Respondents' operations on the Queen
Mary are extensive-five dining rooms and bars, six
banquet rooms, and four banquet rooms run for the
PSA Hotel. All totaled, Respondents have the capac-
ity for serving approximately 4,425 customers simul-
taneously. Clearly, the responsibility of supplying Re-
spondents with qualified personnel to serve this
many people is a task of monumental proportions.
And with Respondents' experiencing a turnover rate
among its employees of 40 percent annually, the dif-
ficulty is compounded even further.
Herein lies the primary reason given by Respon-
dents in rejecting a union-security and hiring hall
provision with the Marine Cooks. Respondents were
unwilling to agree to an exclusive hiring hall with a
union which it did not believe had a sufficient num-
ber of qualified employees to refer. As mentioned
earlier , virtually all of the organized restaurant em-
ployees in southern California are members of the
Culinary Workers. Consequently, the Culinary
Workers-not the Marine Cooks-has the largest
pool of experienced restaurant employees in the area.
And by executing a union-security and hiring hall
provision with the Marine Cooks, Respondents ar-
gued that they were afraid Respondents would be
cutting themselves off from this resource.
The fact that the Marine Cooks offered a "grand-
father clause" 13 and were willing to permit Respon-
dents to screen applicants first before they were
placed on the referral list in no way undermines Re-
spondents' fears. As a practical matter, given the 40
percent turnover of restaurant employees in the Los
Angeles area, and given the large number of restau-
rants organized by the Culinary Workers , it is unlike-
ly that any restaurant employee would accept a job
which required: (1) resignation from the Culinary
Workers, or (2) dual unionism with the concomitant
obligation to pay two sets of union dues. And yet,
had Respondents capitulated on the Union's union-
security and hiring hall demands, this is precisely the
dilemma which would have faced any individual se-
lected by Respondents for employment from the Cu-
linary Workers pool.
Article III, sections 2 and 7, of the Marine Cooks
constitution provide:
Section 2. Candidates for membership shall be
American citizens , or eligible for such citi-
zenship. No candidate shall be granted member-
ship who is a member of a dual organization or
any other organization hostile to the aims, prin-
ciples and policies of this union... .
Section 7. Any member who advocates or
gives aid to the principles and policies of any
hostile or dual organization shall be denied fur-
ther membership in this Union. A dual or hostile
13 Under this proposal , no employee employed on the contract execution
date would have been required to become a member of the Union.
QUEEN MARY RESTAURANTS CORPORATION
organization is one engaged in, or attempting to
engage in the organization or recruiting of mem-
bers of this Union into a competing organization
or union or any organization or union directly
competing with this Union in organizing the
maritime industry or any other industry or any
organization declared to be a dual or hostile or-
ganization by a two-thirds majority vote of the
membership.
At the hearing, Respondents sought to prove that
the Culinary Workers constituted a "dual or hostile"
organization. Their stated purpose was to establish
that acquiescence in the Marine Cooks union-securi-
ty demands would have had the effect of requiring
each member of the Culinary Workers to resign his
or her membership therein as a prerequisite to ac-
quiring or retaining employment with Respondents.
Such a situation, according to Respondents' chief
negotiator, John Nichols, would have been "econom-
ic suicide." Respondents' efforts were cut off by the
Administrative Law Judge. Since Respondents were
seeking to demonstrate their good faith in resisting
the union-security and hiring hall proposals, the Ad-
ministrative Law Judge's restrictive ruling constitutes
prejudicial error.14
Even if the Culinary Workers is not a "dual or
hostile" organization, however, Respondents still had
much to fear from executing a union-security clause
with the Marine Cooks. For given today's difficult
economic conditions, it is likely that many individu-
als would be unable or unwilling to shoulder the fi-
nancial burden which dual unionism requires.
In sum , the issue of union security and hiring hall
was of critical importance to the Union and Respon-
dents. With the Marine Cooks bound by its constitu-
tional principles and seeking to secure a foothold
among the land-based restaurant workers, and with
Respondents seeking to ensure an adequate supply of
employees for its operations, it is no wonder that nei-
ther side was willing to compromise. However, unlike
my colleagues, I am not prepared to find that Re-
spondents' unwillingness to compromise when con-
fronted with the Union's adamant position consti-
tutes a violation of our Act.
The law is, of course, well settled that a party en-
14 This conclusion is not altered by the fact that some individuals may
currently hold dual memberships in the Culinary Workers and Marine
Cooks. Until recently , the Marine Cooks sought to represent only offshore
employees . Since the Culinary Workers represent land-based personnel, the
two Unions most likely never found themselves in a recruiting conflict. With
the Marine Cooks now moving onshore, however , it is reasonable to con-
clude that they will find themselves recruiting the same workers and thus
will constitute "dual or hostile" organizations as defined in art . III, sec. 7, of
the Marine Cooks constitution , quoted above . In any event , the Administra-
tive Law Judge 's restrictive ruling prevented the introduction of any evi-
dence on these questions.
781
gaging in collective bargaining is not required to con-
cede on any subject of bargaining." Similarly, this
Board has no authority to compel a company or a
union to agree to substantive contractual provi-
sions .16 As specifically stated in Section 8(d) of our
Act, the obligation to bargain collectively "does not
compel either party to agree to a proposal or require
the making of a concession." Accordingly, neither
Respondents' refusal to compromise their opposition
to union-security or hiring hall provisions, nor their
refusal to accept the Marine Cooks proposals on
these issues , can be deemed to be a violation of Sec-
tion 8(a)(5).
Similarly, given the state of this record, I do not
find Respondents' position on the union-security and
hiring hall proposals to be evidence of overall bad-
faith bargaining. As described earlier, the parties
engaged in 14 bargaining sessions during a
4-1/2-month period. In this time, agreement was
reached on virtually every major subject save union
security and hiring hall. The bargaining may have
been tough, but it was not fruitless. Each side made
reasonable efforts to compose their differences and
such efforts proved successful for well over 90 per-
cent of the agreement. Just because the economic
stakes involved in the union-security and hiring hall
provisions were too high for compromise in Respon-
dents' view does not mean that Respondents bar-
gained in bad faith. Either both sides bargained in
bad faith, or neither side did. And on my reading of
the record, I find nothing more than determined,
good-faith bargaining.
The Administrative Law Judge's finding that Re-
spondents bargained in bad faith is based in large
measure on an adverse inference drawn from the fact
that Respondents executed a contract with the Culi-
nary Workers in May 1971 which contained both a
union-security and a hiring hall provision. In an ef-
fort, to persuade the Administrative Law Judge to
draw just such an adverse inference, the General
Counsel sought-and was permitted-to introduce
the 1971 agreement into evidence. In contrast, Re-
spondents were denied an opportunity to neutralize
the inference by offering evidence as to the extraordi-
nary circumstances surrounding the execution of that
agreement. Respondents offered to prove that the
1971 contract was signed at a time when they were
under severe pressure from the city of Long Beach to
honor their lease agreement and commence opera-
tions without delay. Simultaneously, the Culinary
I5 See N. L. R. B. v . American National Insurance Co, 343 U.S. 395, 402
(1952), wherein the Supreme Court stated , "The Act does not compel any
agreement whatsoever between employees and employers . Nor does the Act
regulate the substantive terms governing wages, hours and working condi-
tions which are incorporated in an agreement."
16 H. K. Porter Co v N LR.B., supra
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers were threatening to strike if a contract with
them was not signed. Respondents were denied the
opportunity to establish that the May 1971 con-
tract-including the union-security and hiring hall
provisions-was executed as a means of avoiding a
strike which could have placed them in violation of
their lease with the city. I consider this ruling of the
Administrative Law Judge to be prejudicial error.
For all of the reasons stated above, I would reverse
the 8(a)(5) violation predicated on Respondents' fail-
ure to reach agreement on union-security and hiring
hall provisions.
2. 8(a)(1) and (3) violations
As indicated earlier, the Marine Cooks com-
menced striking on May 25. Rumors of such a strike
had been circulating in area newspapers and else-
where for several weeks prior to that date. In an ef-
fort to advise employees of their rights during a
strike, Respondents sent a letter to each employee on
April 20 advising them, inter alia, "If you engage in
the strike the Company can hire a permanent re-
placement for you. If and when the strike is over the
permanent replacement can retain the job." Thereaf-
ter, when the strike began, Respondents on May 26
sent each striking employee a telegram indicating
that a failure to report for work as scheduled would
result in their permanent replacement. When the
strike failed to achieve its desired end, the Marine
Cooks, on July 26, August 8, and August 20, made
offers of reinstatement on behalf of the striking em-
ployees. In early September, the strikers were placed
on a preferential hiring list.
My colleagues adopt the conclusions of the Ad-
ministrative Law Judge that the April 20 letter and
May 26 telegram violated Section 8(a)(1), while the
refusal to reinstate the strikers-including perma-
nently replaced strikers-violated Section 8(a)(3).
These conclusions are based on the Administrative
Law Judge's erroneous finding that the strike was an
unfair labor practice strike. Since I disagree with this
latter finding, I would reverse the violations predicat-
ed thereon.
Given the economic nature of the strike, Respon-
dents' letter of April 20 constitutes nothing more
than an accurate statement of their legal rights, while
the May 26 telegrams express an intention to exercise
those rights against any individual who fails to report
for work. Such communications, when distributed in
a noncoercive manner, do not violate Section
8(a)(1).17 Finally, since permanently replaced eco-
nomic strikers are not entitled to immediate rein-
statement, I conclude that Respondents did not vio-
late Section 8(a)(3) by failing to reinstate those
strikers who had already been permanently replaced
by the time an unconditional offer for their reinstate-
ment had been made.
For the reasons and to the extent indicated above,
I do not adopt the Administrative Law Judge's
8(a)(1), (3), and (5) findings.
17 Adco Advertising, Inc d/b/a Pennysaver and Ampress Incorporated, 206
NLRB 497 (1973).
DECISION
STATEMENT OF THE CASE
JAMES S . JENSON, Administrative Law Judge: This case
was heard before me in Los Angeles, California, on various
dates between January 23 and February 19, 1974. The
amended consolidated complaint which issued on Decem-
ber 26, 1973, pursuant to charges filed on March 29, April
23, May 9, and August 24, 1973, in Cases 21-CA-11684,
21-CA-11746, 21-CA-11790 and 21-CA-12068, re-
spectively,' alleges violations of Section 8(a)(1), (3), and (5)
of the Act. Specifically, the amended consolidated com-
plaint alleges that a unit comprised of all employees of
Respondents employed aboard the Queen Mary is appro-
priate; that on December 18, 1972, in a Board-conducted
election , a majority of the employees designated the Ma-
rine Cooks & Stewards Union as their collective-bargain-
ing representative, and on December 27 the Marine Cooks
& Stewards was certified by the Board; that since January
18, 1973, Respondents have engaged in dilatory and eva-
sive tactics and surface and bad-faith bargaining in viola-
tion of Section 8(a)(1) and (5) of the Act by:
(a) Bargaining directly with employees on or about
April 18.
(b) Granting employees a pay increase in March with-
out giving notice to or bargaining with the Marine Cooks.
(c) Refusing in March to meet and bargain with a duly
authorized representative of the Marine Cooks.
(d) Failing and refusing to supply the Marine Cooks
with requested information on seniority, hiring dates, and
number of hours worked by employees in the unit.
(e) Failing and refusing to make contract proposals or
counterproposals or to make a reasonable effort to com-
promise differences on proposed union-security and hiring
hall provisions. It alleges further that, commencing May
25, Respondents' employees engaged in an unfair labor
practice strike; that on April 20, Respondents distributed a
letter to the unit employees conveying the threat that un-
fair labor practice striking employees could be perma-
nently replaced; and that on May 26 Respondents. sent
striking employees telegrams informing them that they
would be permanently replaced if they failed to report to
work as scheduled, the letter of April 20 and the telegram
of May 26 being alleged as violations of Section 8(a)(1) of
the Act. It is further alleged that on July 26, the employees,
' A consolidated complaint issued in Cases 21-CA-I 1684,21-CA-1 1746,
and 2I -CA-11790 on August 10, 1973.
QUEEN MARY RESTAURANTS CORPORATION
through the Union, made an unconditional offer to return
to work but that the Respondents have refused to reinstate
said employees in violation of Section 8(a)(3) and ( 1) of the
Act. Respondents deny all of the unfair labor practice alle-
gations and assert, as affirmative defenses , that they are
excused from bargaining with the Union because the
Union (a) has engaged in acts of violence and destruction
perpetrated against Respondents and their employees; (b)
bargained in bad faith and adopted a "take it or leave it"
attitude; and (c) discriminates against members and appli-
cants on the basis of sex , race , and national origin?
Thus, the issues are:
1. Whether Respondents engaged in dilatory and eva-
sive tactics and surface and bad-faith bargaining by engag-
ing in the acts and conduct alleged.
2. Whether Respondents unlawfully refused to reinstate
strikers.
3. Whether Respondents are excused from bargaining
with the Union by reason of their affirmative defenses.
All parties were given full opportunity to appear, to in-
troduce evidence , examine and cross-examine witnesses, to
argue orally, and to file briefs. Extensive briefs were filed
by both Respondents and the General Counsel and have
been carefully considered.
Upon the entire record in the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
Queen Mary Restaurants Corporation and Q. M.
Foods, Inc., herein called Respondents, are separate Cali-
fornia corporations jointly engaged in the business of oper-
ating retail food service and restaurant facilities on the for-
mer ocean liner , Queen Mary, at its place of moorage in
Long Beach, California. Both are wholly owned subsid-
iaries of Specialty Restaurants, Inc., a California corpora-
tion which, through various wholly owned subsidiaries, op-
erates approximately 20 restaurants in the southern
California area . Respondents annually derive gross reve-
nue in excess of $500,000 and annually purchase and re-
ceive directly from firms outside the State of California,
goods, products, and services valued in excess of $4,000.
Respondents have common officers, directors , and offices
and a common spokesman and policies in labor relations
matters. Accordingly, I find that Respondents constitute a
single-integrated business enterprise and a single employer
within the meaning of Section 2(2) of the Act and are en-
2 Respondents ' first affirmative defense , that the Union did not represent
a majority of the employees in the unit , was stricken at the hearing upon
motion by the General Counsel. It is well settled that a bargaining relation-
ship established by voluntary recognition or Board certification is irrebut-
ably presumed to continue for a "reasonable time"-ordinarily I year-and
a refusal to abide by that relationship during that period will violate Sec.
8(a)(5) and (1) of the Act. Brooks v. N. L. R. B., 348 U.S. 96, 98-104 (1954);
N.L.R.B. v. Frick Co., 423 F.2d 1327, 1330-32 (C.A. 3, 1970); N LR B. v.
San Clemente Publishing Corp., 408 F.2d 367, 368 (C.A. 9, 1969); N.L.R.B. v.
Montgomery Ward & Co., 399 F.2d 409, 412-413 (C.A. 7, 1968). Respondent
withdrew its fourth affirmative defense , that the Union was engaged in a
competing business which excused it from bargaining with the Union.
783
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act .3
II. THE LABOR ORGANIZATION INVOLVED
Marine Cooks & Stewards Union, Affiliate of the Sea-
farers ' International Union of North America, AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondents' operations aboard the Queen Mary were
open to the public in May 1971. Prior to opening, Respon-
dent entered into a collective-bargaining agreement with
Local Joint Executive Board of Hotel and Restaurant Em-
ployees and Bartenders International Union of Long
Beach and Orange County, AFL-CIO (herein called Culi-
nary Union), covering its employees. On May 17, 1971, the
Marine Cooks filed an unfair labor practice charge alleging
Respondent's recognition of the Culinary Union violated
Section 8(a)(2) of the Act. On November 9, 1971, the Re-
gional Director for Region 21 approved a settlement agree-
ment in that case requiring Respondent to withdraw recog-
nition from the Culinary Union and that the
collective-bargaining agreement be nullified.4 Also on No-
vember 9, the Culinary Union filed a petition for an elec-
tion among Respondent's employees aboard the Queen
Mary. The Marine Cooks intervened and three elections
followed. The first election on January 10, 1972, was incon-
clusive, necessitating a runoff between the Marine Cooks
and "no union" on June 2. That election, which the Marine
Cooks lost, was set aside by agreement of the parties in lieu
of a hearing on objections. A rerun of the runoff election
was held on December 18, 1972, which the Marine Cooks
won. The certification of representative was issued on De-
cember 27, 1972.5
The charges upon which the consolidated complaint was
based which resulted in Administrative Law Judge Boyce's
decision were filed on October 31 and November 9, 1972.
The hearing in that matter was held on various dates be-
tween March 20 and 30, 1973. As noted above, Adminis-
trative Law Judge Boyce's decision issued on June 5, 1973.
He found that Respondents' suspension and discharge of
Julio Monzon violated Section 8(a)(3) and (1), and that
Respondents engaged in numerous violations of Section
8(a)(1), including creating the impression of surveillance of
union activities ; threats of loss of jobs if the Marine Cooks
won the election; interrogation regarding the union activi-
ties of various employees; threats to close down if the em-
ployees engaged in a strike; stating to employees that if the
Union won the election it would cause employees illegally
i Based on the record evidence and Administrative Law Judge Richard J.
Boyce's decision dated June 5, 1973, in Cases 21-CA-11359 and
21-CA-11382 (hereinafter cited as Administrative Law Judge Boyce's deci-
sion) adopted by the Board on July 5, 1973, G.C. Exhs 2(a) and (b)
4 The motion made by Respondents in their brief that I reverse my ruling
rejecting an offer of proof regarding the circumstances surrounding the exe-
cution of the contract with the Culinary Union is denied.
5 Administrative Law Judge Boyce's decision.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the country b lose their jobs ; threats of loss of benefits
if employees voted in the Marine Cooks ; promises of wage
raises if the Marine Cooks lost the election ; that it would
be futile for the Marine Cooks to win an election because it
would be 5 years before Respondents would agree to a
bargaining contract ; threats to terminate employees if the
Marine Cooks won the election ; promises to pay increases
to induce employees to withhold their support for the Ma-
rine Cooks; instituted profit-sharing and health and wel-
fare plans in an effort to hold antiunion sentiment to quell
employee unrest while objections to the June 2 election
were unresolved ; attempted to induce an employee not to
testify and to induce an employee to testify untruthfully at
the unfair labor practice hearing in that matter . The parties
stipulated that the cases heard by Administrative Law
Judge Boyce have been closed following compliance with
the Board's order.
The complaint herein alleges , Respondents admit, and I
find that all employees of the Employer aboard the Queen
Mary, excluding office clerical employees , professional em-
ployees, guards, watchmen and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act; and that on December 18, 1972, a majority of the
employees in said unit, by a secret ballot election conduct-
ed under the supervision of the Regional Director of Re-
gion 21 of the National Labor Relations Board , designated
and selected the Union as their representative for the pur-
poses of collective bargaining with Respondents, and on
December 27, 1972, said Regional Director certified the
Union as the exclusive collective -bargaining representative,
by virtue of Section 9(a) of the Act, of all employees in said
appropriate unit . On the basis of the foregoing and the
facts as set forth hereafter , I find that since December 27,
1972, the Marine Cooks has been , and is , the exclusive
representative of all employees in said appropriate unit,
and that on or about January 2, 1973, and at all times
thereafter , the Marine Cooks requested that Respondents
bargain collectively with it as the exclusive bargaining rep-
resentative of all employees in the appropriate unit.
B. Negotiations
On January 2, 1973,6 Joe Goren, port agent for the Ma-
rine Cooks, wrote David Tallichet, president of Specialty
Restaurants , asking that Tallichet contact him so that they
could commence negotiations immediately . On January 8,
Goren wrote John Nichols, the staff man employed by
Specialty Restaurants who is in charge of labor relations
for all subsidiary corporations including Respondents, that
"the following people will act as M. C. & S. representatives
and entitled to all the rights normally extended this posi-
tion : Frank Gill , Julio Monzon , and myself." 7 By letter
6 All dates hereafter are in 1973 unless otherwise stated.
7 By letter dated January 23, Nichols wrote Goren to the effect that "all
courtesy will be extended to Frank [Gill ] and yourself as officials of
M. C. & S...." and calling attention to the fact that Monzon and Joe
Mardones were causing a problem on the Queen Mary by representing
themselves as stewards of the Union and interfering with work . Monzon
was a Charging party in one of the earlier cases and was found by Adminis-
trative Law Judge Boyce to have been unlawfully suspended and dis-
charged
dated January 9, Tallichet advised Goren that "the purpose
of my letter is to advise you that John Nichols has full
authority to bargain on behalf of the Company, and at
such negotiations will be assisted by Mr. George Tribel-
horn or such other people from the management staff as
those two gentlemen think necessary." 8 Also on January 9,
Nichols wrote Goren requesting a copy of the Union's pro-
posals so that they could be analyzed from a cost stand-
point prior to the commencement of negotiations.
The first negotiating session was held on January 18, at
which time Goren presented Nichols with the Union's ini-
tial proposal. The proposal did not contain a wage demand
since the Union preferred to "proceed [first] on the lan-
guage ." Nichols' position was that the "language" con-
tained economic factors and that Respondents wanted to
study the entire proposal . Another meeting scheduled for
January 24 was canceled by mutual agreement. On that
date, Nichols wrote Goren requesting the Union's wage
proposal "so that we can bargain intelligently at our next
meeting . . . until we are in a position to know the cost of
your proposal , it makes it well nigh impossible to frame
meaningful counterproposals or reach an agreement." On
the same date, Goren wrote Nichols regarding employee
complaints about gratuities and the food served employees.
Goren responded by letter of February 1, setting forth the
company policy regarding gratuities and stating that he
had checked the quality of food served employees and
found it to be above standard. Another meeting scheduled
for February 7 was canceled by Nichols on the ground the
Company had hired a new attorney, Mr. Diederich (attor-
ney for Respondents), to review the contract.9
By letter to Goren dated February 13, Nichols renewed
his request for the Union's wage proposal , advised Goren
he was leaving for a week 's vacation on February 17, and
proposing a negotiating meeting on February 26 or 27. On
the following day, February 14, Nichols and Goren met to
negotiate on the Banjo , Inc., contract (another Specialty
Restaurants subsidiary ) at which time Goren gave Nichols
a copy of the Union's wage proposal covering the Queen
Mary employees, and asked for a date to continue negotia-
tions . Nichols stated that he couldn 't schedule a date since
Diederich was going over the Union's first proposal and
that the Company would have to review the entire propos-
al. On February 16, Nichols wrote Goren two letters, one
stating that the Respondents had no objections to a repre-
sentative of the Federal Mediation and Conciliation Ser-
vice sitting in on negotiations , and the other in response to
Goren 's oral request that an early negotiating meeting be
set, reminding Goren that he had already been advised that
Nichols was leaving for a week 's vacation on February 16.
On February 21, Goren called Diederich to learn if he
had reviewed the contract so that negotiations could be
resumed. Diederich advised Goren that he had nothing to
8 The amended consolidated complaint alleges that Nichols and Abbas
Esfhani, Respondents' vice president for food and beverages, are supervi-
sors and agents of Respondents. While Respondents' answer admits the
supervisory status, it denies they are agents of Respondents. Nichols attend-
ed all negotiations sessions and was assisted by Esfhani on several occa-
sions . I find, therefore, that Nichols and Esfhani are agents of Respondents
within the meaning of Sec. 2(2) and (13) of the Act.
s Based on the credited and undisputed testimony of Goren.
QUEEN MARY RESTAURANTS CORPORATION
do with the negotiations, that he had been hired to handle
the unfair labor practice cases then pending.
The second negotiating session was held on February 27,
at which time Nichols gave Goren the Respondents' coun-
terproposal. Federal Mediator Vierra was also in atten-
dance. While the union representatives wanted to negotiate
from their January 18 proposal consisting of 26 pages, they
agreed to go through Respondents' counterproposal con-
sisting of 10 pages. Although a number of items were
agreed upon either in principle (requiring language
changes) or in their entirety, it was clear from the begin-
ning that the major stumbling blocks to reaching an agree-
ment were going to be union-security and hiring hall claus-
es.10 The Union's January 18 proposal covering hiring and
union security provided at section 2:
Preferential Hiring, Employment and Registration:
(a) The Employer agrees to secure all Steward De-
partment personnel, when available, through the hir-
ing halls of the MCS-AFL.
The Company may hire personnel on a daily basis
when mutually agreed by Union and Company. If
Company hires personnel not mutually agreed upon,
Company shall pay equal wages to union employees
that were available.
(b) All Employees seeking employment must be ca-
pable and competent to the satisfaction of the Em-
ployer. All persons seeking employment must be able
to provide first class service and certain conditions of
employment with respect to qualifications, including
special skills, experience, neatness , appearance, and
cleanliness on the job.
(c) The MCS-AFL agrees that the Employer has
the right to reject (by written notation on the job as-
signment slip) any person dispatched by the MCS-
AFL whom the Employers consider unsatisfactory or
unsuitable for the vacancy, or to discharge any Stew-
ard Department employee who, in the opinion of the
Employer, is not satisfactory. If the MCS-AFL con-
siders the rejection or discharge to be without reason-
able cause it may proceed under the grievance ma-
chinery. The MCS-AFL agrees that any rejection or
discharge shall not cause any function to be delayed
on her scheduled activities. If the Employers feel that
the cause for rejection or discharge is sufficient to
jeopardize the future employment rights of the person
in the same rating or any rating, that specific matter
may be promptly adjudicated under the grievance ma-
chinery, and in an appropriate case, a decision may be
made restricting or denying the persons' right to be
dispatched or to register.
Union Membership
4. (A) It shall be a condition of employment that all
10 Par . 10(e) of the amended consolidated complaint alleges that since
January 18 Respondent failed and refused to make contract proposals or
counterproposals on essential contract matters and failed to make a reason-
able effort to compromise differences on these matters . The General Coun-
sel stated on the record that par. 10(e) covered only the subjects of union
security and hiring hall.
785
employees of the Employer covered by this Agreement
who are members of the Union in good standing on
the date of this Agreement shall remain members in
good standing and those who are not members on the
date of this Agreement shall, on the 30th day follow-
ing the date of this Agreement, become and thereafter
remain members in good standing in the Union. It
shall also be a condition of employment that all em-
ployees covered by this Agreement and hired on or
after its date shall, on the 30th day following the be-
ginning of such employment become and thereafter
remain members in good standing. The Union agrees
to permit all employees to become and remain mem-
bers of the Union upon payment by them of initiation
fees and periodic dues uniformly required as a condi-
tion of membership.
(B) Upon notice in writing from the Union to the
effect that an employee is not a member of the Union
in good standing as required hereunder, the Employer
shall, within five (5) days, discontinue its employment
of such employee.
Respondents' February 27 counterproposal provided at
section 3. Hiring:
(a) Applicants for employment shall be hired by the
Employer on a non-discriminatory basis and such em-
ployment shall not be based on, or in any way affected
by, Union membership or lack of such membership or
by Union by-laws, rules, regulations, constitutional
provisions, or any other aspect or obligations of
Union membership, policies or requirements.
(b) The Employer shall be the sole judge of the
qualifications of all applicants and retains the right to
reject any applicant for employment referred by the
Union.
A lengthy discussion was had on the subject of hiring
hall, both parties apparently taking an adamant position.
Accordingly, union security and hiring were left open for
further discussion at a later meeting. Goren proposed that
the parties meet more frequently and Nichols responded to
the effect that he was meeting as often as he could, which
promoted Goren to call him a "damn liar," referring to
Nichols' statement on February 2 that Respondents had
hired Diederich to review the Union's initial contract pro-
posal, and to Goren's February 21 conversation with Die-
derich at which time the latter denied he had anything to
do with negotiations. The next meeting, set for March 6,
was postponed until March 7.
On March I, Goren delivered the Union's counterpropo-
sal (G.C. Exh. 11) to Nichols at his office. This proposal
was used as the basis for the third negotiating session held
on March 7. Those portions of the Respondent's counter-
proposal that had been agreed to on February 27 were
incorporated in the Union's March 1 proposal. As at the
previous session the parties went through the proposal
point by point. While there were a number of points of
agreement and disagreement, union security and hiring
were the foremost problems. While the Union's proposed
hiring provision (with the exception of the last sentence in
par. (D) which was added) was identical to that contained
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the collective-bargaining agreement which Nichols ne-
gotiated with the Culinary Union covering other wholly
owned subsidiaries of Specialty Restaurants located in the
Long Beach area (the Ports O'Call, Yankee Whaler and
Bay of Naples, later the Rum Runner), the union security
clauses were similar, the Ports O'Call agreement requiring
membership within 31 days, and the Marine Cooks propos-
al requiring membership on the 30th day of employment.I I
The basic Ports O'Call contract, which was effective from
February 1, 1968, to March 15, 1973, was extended by
memorandum agreement to March 15, 1978. Nichols' ex-
pressed position on hiring hall was "our objections has al-
ways been that to us it would be economic suicide to cut
ourself off from the labor pool . . . that the vast pool of
employees were Culinary and in our best judgment, we just
couldn't agree on that . . . we can't afford to cut ourselves
off from a pool of labor ... the Culinary Workers
pool" 12 In response to the General Counsel's question as
to the reasons given the Union for not wanting to enter
into a hiring hall or a union-security arrangement, Nichols
testified:
A.... It was our position on hiring hall that we do
not believe then or now that the Marine Cooks and
Stewards have the necessary people available to sup-
ply us.
Q. Do you recall what reasons you have for not
wanting to enter into a union security arrangement
with the Union at that time?
A. Well, it ties into hiring hall. Our feeling on that
is a two-fold situation. Number one, the people are
available, are trained people that we did not believe
was available to the Marine Cooks and Stewards
where it was available to the Culinary.
Also we did not feel it was our position to force any
of the members on the Queen Mary to join the Marine
Cooks and Stewards, whether they were present mem-
11 The Ports O'Call-Culinary agreement will be referred to hereafter as
the Ports O 'Call agreement.
12 Prior to the commencement of negotiations, Nichols, Tallichet, and
Irwin, a labor attorney , met on two occasions to discuss bargaining strategy
and policy with respect to the forthcoming negotiations His testimony re-
garding those meetings was:
A. Well, we met for many , many hours and we discussed the impact
in great detail . What we arrived at was that in our best business judg-
ment we could not afford to cut ourselves off from the pool of waiters
that are existing in the Culinary Union . That if we gave in to either the
hiring hall or the compulsory unionism , it would be economic suicide
to us.
We did discuss very briefly but it was a secondary consideration, the
fact that also practically all waiters in the Los Angeles area belong to
the Culinary Workers Union including the people on board the ship or
on the Queen Mary We did not feel that they could be very comfort-
able nor the Culinary very comfortable with dual unionism.
Q. Was the subject of a strike discussed?
A. Yes.
Q. Could you relate what was said with respect to that?
A. After we had all arrived at the same opinion that we couldn't
afford business-wise to cut ourselves from the source of labor , then we
had to face the consequences of there could be a strike and we dis-
cussed that at great length.
Q. Could you tell us what the concensus was?
A. Our concensus of opinion was that the Marine Cooks and Stew-
ards could not set up an effective strike and shut us down.
bers or whether they had voted for the Marine Cooks
and Stewards and did not want to continue that mem-
bership, or future employees.
Other areas of disagreement included a successorship
clause which the Union wanted and Respondents opposed;
checkoff, which the Union sought and Respondents op-
posed; seniority rights, which the Union wanted and which
Respondents did not oppose in principle but did in the
form presented; health and welfare (Goren requested that
they exchange health and welfare programs and requested
a copy of the plan then in effect on the Queen Mary);
grievance procedure (there was an agreement on principle,
but not as to wording); working hours (the Union pro-
posed a 5-day, 40-hour week, while Respondents wanted a
6-day, 48-hour week similar to the Long Beach and Orange
County Culinary contract);13 holidays (the Union propos-
ing nine paid holidays and the Respondent proposing two
in accordance with the Long Beach contract); prorating
vacations ; work only within craft lines ; and tips and gratu-
ities .14 Other areas of agreement and disagreement do not
appear to have had a significant impact on the course of
the negotiations.
On March 7, Respondent announced increases in wages
effective March 1 to conform to wage rates paid under the
area Culinary Workers' contract. No prior notice of the
wage increase was given to the Marine Cooks, nor was it
mentioned by Respondent at the March 7 negotiating
meeting.l5
Goren testified that a "tentative meeting" was scheduled
for March 12, but on the morning of March 12 he called
Nichols who cancelled the meeting. He testified that he
reminded Nichols that at the March 7 meeting he had been
advised that Goren was leaving for Ireland on March 13
for a week's vacation, and that during the interim he
should get together with Gill "and resolve as much . . . of
the contract language as possible." Goren then informed
Gill that he should contact Nichols. Gill testified that Ni-
chols had stated at the March 7 meeting that he would
have a counterproposal ready on March 12 and that he
would try to get Gill a copy of the Long Beach Culinary
contract. Following Goren's suggestion, Gill also called Ni-
chols on March 12 and asked if Respondents' counterpro-
posal was ready and was informed that Nichols would start
working on it that day. Gill testified, "I told him in no
uncertain terms that it was agreed that he would have these
counterproposals ready the 12th and now he was telling me
he was going to start on them on the 12th . . . he said that
he had related to Mr. Goren and to the session of March 7
that he had contractual bids or budgets to be ready for his
13 The Reef, a restaurant located close by the Queen Mary, and also
owned by Specialty Restaurants , by reason of membership in the associa-
tion , was covered by an agreement between the Long Beach and Orange
County Restaurant Association and the Local Joint Executive Board of
Hotel and Restaurant Employees ' and Bartenders ' International Union of
Long Beach and Orange County, herein called the Long Beach contract.
14 The Union wanted all tips to go to the employees. The Employer's
practice was that all tips for a Is carte service went to the employees but that
banquet tips were divided , 70 percent to the waiters and 30 percent to the
sales and supervisory personnel who made the banquet arrangements.
15 The charge filed March 29 in Case 21-CA-11684 was based on this
wage increase
QUEEN MARY RESTAURANTS CORPORATION
president and that he was working on those and that's why
he could not meet with me." In a letter dated March 13,
Gill wrote Nichols: "At the negotiating meeting of March
7, we informed you that Joe Goren had previously sched-
uled a vacation and that we would appreciate your coun-
terproposal before he left. We understood you would have
something by Monday, March 12, but when I called you
yesterday, you stated you would start working on it Mon-
day, March 12. We feel this is another one of your stalls
and that you are bargaining in bad faith. We again request
an immediate meeting with you." On March 14, Gill talked
to Nichols again . His testimony regarding the conversation
is as follows:
A. I was very angry. I told him that it had been
about 39 days from one meeting to the other and 27
days-almost two months and we only had one seri-
ous negotiation session , and that I wanted to follow
my boss' instructions and have a lot of the non-cost
items out of the way so by the time he got back from
Ireland that we could get down to the nitty-gritty of
the contract.
Q. What did Mr. Nichols say to you?
A. He got angry also.
Q. What did he say?
A. He said that I don't have to negotiate with you.
I said what do you mean you don't have to negotiate
with me when you have been negotiating with me
from the very start? He says you have no authority to
negotiate. Joe Goren is the chief negotiator. My reply
was where did he get the idea and where could he
show me any document that showed that Joe Goren
was the chief negotiator; that I had equal status. That
was-that he was told at the March 7th meeting to
work with me in Joe Goren's absence.
Q. What did he respond to that?
A. He said he didn't have to negotiate with me.
That was about the end of that conversation.
Gill then called Ed Turner, the president and secretary-
treasurer of the Marine Cooks in San Francisco, who in
turn sent Gill a telegram stating, in pertinent part, that Gill
was authorized to negotiate on behalf of the Marine Cooks
in regard to the Queen Mary. Gill hand-delivered a copy of
the telegram to Nichols and "I told him now maybe you
will negotiate with me," to which Nichols responded "that
he was busy with constructional bids." On March 15, Ni-
chols wrote Gill in response to the latter's letter of March
13, wherein he related his version of the March 7 meeting,
that he had informed Goren that he was responsible for
preparing certain company reports which were due on
March 12 and that he could not start on a counterproposal
until that date. He further suggested that if Gill would con-
tact Goren, that Goren would verify his statement. James
Simmons, the harbor area representative of the Los Ange-
les County Federation of Labor who sat in on the negotia-
tions as an aide to the Marine Cooks, testified that Goren
had stated at the March 7 meeting that Gill had authoriza-
tion to negotiate in his absence but that to the best of his
recollection no arrangements were made for the next meet-
ing.
Nichols' account of the incident is that Goren stated at
787
the March 7 meeting that he was going to Ireland on vaca-
tion and would like to meet again on March 12 before he
left; that Nichols explained that at the end of the month he
was tied up producing budgets for the president and would
not be able to meet on Monday, March 12, but that he
would start on the counterproposal that date and that it
would take 2 or 3 days to complete it; that Simmons then
suggested that Gill "could work on language in the interim
period." He testified that on March 12, Gill called and
wanted "to know about the meeting"; that he told Gill that
he had informed Goren on March 7 that he was tied up on
March 12 and not able to start on the counterproposal
until that date; that he and Gill argued but that he didn't
remember if the question of Gill's authority arose.
On March 16, Gill sent a telegram to Nichols requesting
a meeting on March 19, 20, or 21. Nichols responded by
telegram on the same day that he was scheduled to be a
witness in the unfair labor practice proceeding commenc-
ing March 20 and would be tied up with Respondents'
attorney on March 19 and proposing a meeting on the day
following the close of the hearing. The unfair labor practice
hearing was closed by Administrative Law Judge Boyce on
Friday, March 30, and the next negotiating meeting was set
for Tuesday, April 3, at Nichols' suggestion.
The fourth negotiation session was held on April 3 with
Federal Mediator Vierra present, at which time Respon-
dents presented the Union with another counterproposal
which incorporated items already agreed to. As at earlier
meetings, the parties went through the proposal point by
point. Union security and hiring continued to be the prin-
ciple points of disagreement. Respondents' proposal on
hiring was the same as that contained in its earlier proposal
with the addition of subparagraph (c) reading "the employ-
er will not as a condition of hire or terms of employment or
any term or condition of employment, either encourage or
discourage membership in the Union." The Marine Cooks
asked that Respondents give them the same hiring hall pro-
vision that Specialty Restaurants had with the Culinary
Workers. Nichols declined for the reason that Respondents
didn't feel in good business judgment that it could "shut
itself off from the Culinary [Union] Labor Pool." On union
security, Nichols stated that he wouldn't force Respon-
dents' employees to join a union. Commissioner Vierra
then suggested an "agency shop clause," which Goren stat-
ed was acceptable to the Marine Cooks, but which Nichols
rejected. Nichols stated, however, that he would give the
Marine Cooks a proposal on both hiring and union securi-
ty.16 The Marine Cooks gave Nichols a copy of its pro-
posed health and welfare plan and again requested that
Nichols obtain a copy of the plan in effect on the Queen
Mary. The parties failed to reach agreement on a number
of clauses , including successorship, length of workweek
(Respondents proposed a 6-day week and the Union a 5-
day week), overtime, seniority, tips and gratuities for ban-
quet waiters , holidays, and grievance procedure. Although
the proposal contained a wage schedule, wages were not
discussed . The parties agreed td meet again on April 10.
On April 9, Goren tried without success to call Nichols on
16 Based on the credited testimony of Goren.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three occasions . On the morning of April 10, Nichols failed
to show up at the scheduled meeting. Later in the day Gor-
en received a telegram which Nichols had sent at 12:36
p.m. on April 9, stating he had been called unexpectedly to
the Company's annual meeting at Palm Springs and
couldn't negotiate on April 10, and suggesting a meeting
on Friday, April 13.
The fifth negotiating session was on April 13, again with
Commissioner Vierra. It began with a union greivance that
banquet waiters with seniority were getting less work than
newly hired waiters, and Goren's requesting a copy of the
seniority list of banquet waiters . The Union further object-
ed to the fact that busboys were substituting for waiters.
Nichols explained that some waiters didn't like serving
breakfast because of the hours and the fact tips were low
for that meal, consequently there were lots of "no shows,"
in which event the Company used busboys to fill the gap,
for which they were paid waiters wages . While a number of
negotiating items were discussed , hiring and union security
remained the most substantial issues . On the subject of hir-
ing, Goren stated the Marine Cooks would accept a provi-
sion similar to that in effect between Specialty Restaurants
and the Culinary Union as contained in the Long Beach
contract.t" He then proposed a provision whereby Respon-
it Sec . 3 of the Long Beach contract covering union security and hiring
provides:
(a) It shall be a condition of employment that all employees of the
Employer covered by this Agreement who are members of the Union in
good standing on the effective date of this Agreement shall remain
members in good standing and those who are not members on the
effective date of this Agreement shall, on or before the thirty-first day
following the effective date of this Agreement , become and remain
members in good standing of the Union . It shall also be a condition of
employment that all employees covered by this Agreement and hired
on or after its effective date shall, on or after the thirty-first day follow-
ing the beginning of such employment, become and remain members in
good standing of the Union.
(b) In the event any employee neglects , fails or refuses to comply
with the provisions of Section 3 (a) by the timely tender of the periodic
dues and initiation fees uniformly required as a condition of acquiring
or retaining membership in the Union, the Employer agrees upon the
request of the Union to discontinue the employment of any such em-
ployee.
(c) The Unions shall establish and maintain open and non-discrimi-
natory employment lists for employment of workmen covered by this
Agreement . The Employer shall notify the Unions of all vacancies and
shall call the Union for employees . The Unions agree to the best of
their ability to supply to the Employers competent help at all times.
(d) Applicants for employment shall be referred by the Union to the
Employer on a non-discriminatory basis and such referrals shall not be
based on, or in any way affected by, Union membership or lack of such
membership or by Union By-laws, rules , regulations , constitutional
provisions, or any other aspect or obligations of Union membership,
policies or requirements.
(e) The Employer shall be the sole judge of the qualifications of all
applicants and retains the right to reject any applicant for employment
referred by the Union.
(f) In the event the Unions are unable to supply competent employ-
ees that are satisfactory to the Employer, after having referred all avail-
able applicants, the Employer shall then have the right to employ help
from any source at the regular wage rates herein specified . Any persons
so employed shall be advised before commencing employment that the
establishment is operating under a Union contract , and any such em-
ployees shall be referred by the Employer to the appropriate Union
office within five (5) days for registration as being employed. Unions
agree to accept such persons for membership upon terms and qualifica-
tions not more burdensome than those applicable at such time to other
applicants of such Union.
dents would interview all applicants and send those it con-
sidered qualified to the Union for registration on its dis-
patch list, and thereafter Respondents could pick and
choose from the list those employees it wished . Simmons,
as well as Goren and Gill , testified that he believed an
agreement to that effect had been reached . Gill was to re-
draft the proposal and submit it for Respondents' consider-
ation. On the subject of union security, Goren stated "that
the whole point of the contract was the necessity of having
some sort of a union security clause ." Nichols reiterated
the Company's position. Contrary to his April 3 represen-
tation , Nichols failed to submit a proposal on either hiring
or union security . The parties agreed to meet again on
April 17, at which time Goren asked for a decision on three
items, workweek, union security , and holidays.
On April 16, Gill delivered a copy of the redrafted pro-
posal on hiring to Nichols. The sixth session on April 17
started, as did several of the sessions , with consideration of
a union grievance . Goren complained that new banquet
waiters were getting more work than those with seniority,
Respondents' position being that it was not aware of that
situation but would look into it . Esphani stated he was
going to have a meeting the following day with the banquet
-waiters to discuss seniority and banquet tips, which Goren
stated he wanted to attend . Goren was informed he
wouldn't be allowed to attend since the meeting would
only be operational in nature . No progress was made on
the subjects which were discussed from Respondents' con-
tract proposal of April 3. Nichols took the position that the
proposed draft by Gill did not conform with the April 13
discussions . In an effort to overcome the differences on
union security, Simmons and Commissioner Vierra pro-
posed agency shop and grandfather clauses. Nichols' re-
sponse , according to Goren , was that "he didn 't want to
have a forced compulsory unionism of his employees, or to
make a decision for those who voted against the Union."
In response , Goren pointed out the inconsistency of that
position since Nichols had signed a contract with the Culi-
nary Union in April 1971 without a vote and before any
employees were working on the Queen Mary.'8 Regarding
that meeting, Nichols testified "we feel that we don't have
a moral right to bind all the employees-any employee-to
compulsory unionism and we feel that the Marine Cooks
and Stewards are too new in this field , and we wanted to
see what type of performance before we made a decision
such as that." In this regard , Nichols stated in an affidavit
given a Board agent during the investigative stage of these
cases:
I reaffirmed our position . I told Goren that we had no
moral right to make the decision of union membership
binding on employees who had voted no union and
new employees and also union security [is] something
earned by the Union and not the right to demand . . .
I don't recall if it was at this meeting , but I did state
the Company's position was we did not feel we had
the moral right to make that decision for the employ-
ees who are non-union , both present, past and future.
is Nichols admitted that the contract he had signed with the Culinary
Union had contained a union-security clause and hiring hall provision.
QUEEN MARY RESTAURANTS CORPORATION
I also stated that it was a right the Union has to earn
and not demand.
He further testified as follows:
I stated that my position was we felt we had no moral
right to make the decision for the people who had
voted against the Marine Cooks and Stewards and
that union security was something that they had to
earn, and was not their right to demand.
In response to Nichols ' position that Respondent didn't
know the Marine Cooks well enough to agree on a union-
security clause , Goren pointed out that the Marine Cooks
and Specialty Restaurants had been parties to collective-
bargaining agreements covering Banjo, Inc., for more than
10 years containing union-security clauses which Nichols
had negotiated with Goren.
On the morning of April 20, an article appeared in the
Los Angeles Times to the effect that a strike was expected
the next week on the Queen Mary. The article states that
"wages are not an issue ," and that a hearing on unfair
labor practice charges against the Respondents had been
conducted by Administrative Law Judge Boyce and was
under submission . On the same day , Esphani wrote and
distributed the following letter to employees on the Queen
Mary:
To Each Employee of Queen Mary Restaurants
There has been recent publicity indicating that the
Marine Cooks and Stewards Union will engage in a
strike at the Queen Mary.
The management , of course , recognizes that you may
wish to participate in this strike. However, you should
know that you have a right to continue to work. No
one can make you strike just as no one can make you
work.
Both employer and employee are guaranteed certain
rights by the U. S. Government under the National
Labor Relations Act. If you should decide to partici-
pate in this strike you should be informed that strikes
in the restaurant industry have a history of being pro-
longed . If you engage in the strike the Company can
hire a permanent replacement for you . If and when
the strike is over the permanent replacement can re-
tain the job. If there are not enough jobs to go around
you would not be entitled to your job back when the
strike ends.
Perhaps you read this mornings' Los Angeles Times.
We sincerely hope you will exercise your right of free
choice and not participate in this strike, which the
Union was quoted by the Times as saying it would not
be a strike over wages.
On April 23, Goren filed the charge in Case 21-CA-11746
which is the basis for paragraph 11 of the amended consoli-
dated complaint alleging that the letter conveys the unlaw-
ful threat that unfair labor practice striking employees
could be permanently replaced.
Also on April 23, Goren wrote Nichols requesting "the
seniority list, and date of hire of all employees, within the
jurisdiction of the bargaining unit ." Goren testified that at
789
the seventh negotiating session on April 24, he orally repeat-
ed the request for the seniority list and that Nichols re-
sponded he would have to ask Diederich if -it was permissi-
ble to give him such a list. Nichols testified that no one
requested a seniority list be furnished by the Company,
and that in fact no such list existed since the Company
doesn't apply seniority. I credit Goren's testimony on this
subject. Nichols' overall bearing and manner of testifying
indicated to me that he was not always telling the truth,
whereas Goren impressed me as a forthright and honest
witness . Furthermore , simple logic convinces me that Ni-
chols was not telling the truth in this as well as other in-
stances . Goren had requested a seniority list by letter the
preceding day and seniority had been discussed on numer-
ous occasions, both in discussions on grievances and dur-
ing negotiations. It would have been natural, even proba-
ble, that Goren would renew the request. I am convinced
that during the April 24 negotiations Nichols felt pressed
by the union negotiators and, when Goren insisted on the
seniority list, he used as a stalling tactic the fact that he had
to ask Diederich's permission to furnish it, just as he stalled
by stating at the same meeting that he would have to talk
to Tallichet because he didn't have authority to make the
final decision on union security and hiring hall. Tallichet
had already informed the Union by letter on January 9
(G.C. Exh. 9): "that John Nichols had full authority to
bargain on behalf of the Company .... " Accordingly,
whenever there is a conflict between the testimony of Ni-
chols and Goren, I credit the latter.
On April 25, a grievance meeting was held regarding the
Union's complaint that the banquet waiters with seniority
were not getting as much work as new employees. Esphani
produced a list of steady banquet waiters which disclosed
three new names had been added at the April 18 meeting
Esphani had held with the waiters. Goren objected to the
addition of the names since several waiters had not attend-
ed that meeting upon Goren 's representation , based on
Esphani's assurance, that the meeting was operational in
nature only. It was agreed that Duff in, a company repre-
sentative , and Gallegos , an employee who sat in on some
of the negotiations with the Marine Cooks, should get to-
gether on the matter and it would be discussed later.
A negotiating session scheduled for April 26 was can-
celed by mutual agreement after Nichols informed Goren
that Tallichet was out of town and that he therefore
couldn't come up with answers on union security and hir-
ing hall.
The eighth negotiating session was on April 30 where,
again, union security and hiring hall were the principal is-
sues. Goren again asked for, but did not receive, a seniority
list, Nichols indicating it should be ready soon. Health and
welfare was discussed , Respondents contending they could
provide a plan for less money than the Marine Cooks' plan,
and Goren stating that if he could see the plan in effect on
the Queen Mary, he would go along with it if it was better
than the one proposed by the Union. On hiring, Nichols
again represented that he would submit some wording for
the Union's consideration. When union security was
brought up, Goren testified that:
Nichols stated they were concerned about those who
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voted against the Union and he didn't feel that the
Company has a right to make a decision for those guys
and I said, well, how the hell did you know who voted
for the Union and who voted against and he stated
that they assumed they would know who was voting
for the Union and who wasn't. Toward the close of the
meeting I asked Nichols if he was serious about the
Company negotiating for the non-union members,
and he reiterated his position by stating that they rep-
resented those that voted against the Union.
In my discussion I said to him, well , we won by a
majority and I says . . . does that mean if I voted
against Nixon that I wouldn't have to pay my income
tax because we was , you know, a government where
majority rules.
i i # # t
... Nichols states we are very concerned about those
who voted against the Union and he says we don't feel
that the Company has a right to make their decisions
referring to union security.
Nichols' denial that he told Goren that he represented
the employees who had voted against the Union is not
credited inasmuch as Goren's version is corroborated by
Simmons insofar as the April 30 meeting is concerned, and
as will be seen hereafter , by Frank Bums , Jr., an attorney
consultant to the city of Long Beach in matters relating to
labor relations who attended the meetings of May 1, 3, and
9 with the consent of both the parties.
As noted immediately above, Bums, along with another
representative of the city of Long Beach , attended the ninth
negotiating session on May 1.19 Again Goren requested a
seniority list which was not forthcoming. Vierra asked the
parties to formulate their positions more precisely and to
state areas of possible settlement . Goren enumerated the
following : elimination of the 20-cent tip and 10-cent meal
credits from the a la carte waitresses; limit banquet waiters
service to 20 persons with a premium of 50 cents for each
extra person served over 20; banquet waiters tips to be split
85-15 percent instead of 70-30 percent; 5-day week; 6 hol-
idays ; a health and welfare plan similar to the off-shore
agreement; prorated vacation pay; union security; hiring
hall; a 3-year contract with no wage increase the first year
and with 5.5 percent increases in both the second and third
years . Nichols' position was that he wanted an entire pack-
age from the Union and that he didn't want to discuss the
clauses separately . Bums testified that, while the Marine
Cooks wanted standard hiring hall and union-security
clauses, Goren stated he was willing to modify his position
or give ground in an attempt to work out clauses that might
be acceptable to Respondents, but that Nichols avoided
discussing the subject . Nichols stated , however, that Re-
spondents would accept the Long Beach contract, but with
no hiring hall or union-security provisions ?0 Agreement
19 The city of Long Beach , as trustee and administrator of the Queen
Mary, had an interest in seeing that attendance on the ship was good and
that there was no strike since revenues derived from the ship could be used
for other purposes within the city.
was reached to meet on May 3.
The Union presented a 21-page contract proposal (G.C.
Exh. 15) at the 10th session held on May 3. Articles which
had been agreed on in earlier meetings were incorporated.
Again the parties went through and discussed each propos-
al. Nothing of substance was agreed on. While not identi-
cally worded, the union-security and hiring provisions were
patterned after the Long Beach contract. Goren stated that
the Union's position on hiring and union security was not
firm and that he was willing to negotiate on them. Burns
testified that "Nichols" position basically was that he
didn't want to discuss either matter and he would not go
into any discussion of what he felt was wrong with those
clauses at all. He would change the subject ...." Follow-
ing caucuses , Burns and Commissioner Vierra proposed
"to both sides . . . that they get into an earnest discussion
of hiring hall and union security, and that both sides agree
to negotiate within the framework of harbor area labor
contracts." While the Marine Cooks agreed to negotiate
within that framework, Nichols stated that he "would have
to take those questions (union security and hiring hall) up
with management because they (Nichols and Tribbelhorn)
did not have authority to negotiate on them at that time."
At this meeting, as well as the May I meeting, Nichols took
the position that he represented the interests of those em-
ployees who had voted against the Union, "that there were
a lot of people who didn't want the Union and that he was
a spokesman for those people, that he represented those
people that didn't want to be in the Union." 21 This posi-
tion provoked Goren to state that "the Union had won and
they were the official bargaining agent and that was the
law and he was tired of hearing all that crap, that anybody
else represented the employees ." The meeting ended on the
theme that the company negotiators would contact man-
agement to see if they were "willing to negotiate within the
framework of the harbor area and willing to negotiate on
union security and hiring hall. And that . . . absent a will-
ing[ness] to negotiate in those areas , there was little sense
to continue these sessions ." Nichols agreed to advise a rep-
resentative of the city, prior to the next city council meet-
ing, what the Company's position was in those three areas.
The 11th session on May 9 was short. In addition to the
usual negotiators , Commissioner Vierra, Burns , and anoth-
er city of Long Beach official, each side was represented by
an attorney, Diederich for Respondents and Ackerman for
the Union. Bums testified convincingly that Commissioner
Vierra asked if the parties could proceed on the three sub-
jects-harbor area contract, union security, and hiring
hall; that Respondents' negotiators "would not give an as-
surance that they were able or willing to negotiate on any
of those three points." Burns testified that, when an at-
tempt was made to discuss union security and hiring hall,
"in both of those areas they would not make any counter-
proposal to Mr. Goren's proposal. They would not respond
to his comments of, well , what if we modify the clause,
would you discuss that. We would go back to the subject
of, I am representing the people that didn't vote for a
20 The contract between Culinary Workers and Specialty Restaurants
covering the "Reef," which contained the hiring hall and union-security
provisions set forth in fn. 17.
21 Based on Burns' credited testimony.
QUEEN MARY RESTAURANTS CORPORATION 791
Union; union security is not a good idea, et cetera." Burns
further testified that Goren stated "that he was willing to
discuss any modification [of union security] that Mr. Ni-
chols might care to offer. On hiring practices, specifically
as I recall, him offering to make an agreement to the effect
that they would only send people to work that had been
previously approved by management. In other words, man-
agement would be able to call over for a particular person
that was on the list, and . . . he would work out language
around that line and if that would in any way satisfy or
help Mr. Nichols position . . . that he wasn't going to just
insist that they took whoever the Union sent over." Nichols
did not respond to the offer. He testified that Commission-
er Vierra adjourned the meeting "because it was apparent
to him that the management was not willing to negotiate
on the questions of union security and hiring hall, and that
the Union was unwilling to take any contract that didn't
have clauses of that nature so to carry the matter on fur-
ther would be useless."
On May 17, Goren sent a telegram to Tallichet stating,
"We are ready to meet and continue the session with Spe-
cialty Restaurants any time providing number 1. Chief
Negotiator John Nichols can render a decision. 2. We can
get a decision on union security that Specialty voluntarily
signed with another Union in April 1971 without any em-
ployees working." On May 21, Goren sent a memorandum
to Tallichet stating, "We are down to the deadline and
even though you are unknown to the negotiating meetings,
we know we are dealing directly with you. The Union is in
business as you are. If the price of meat goes up, you raise
the cost of your steaks. If we have to go on strike, the cost
of negotiations goes up."
The 12th negotiating session was on May 22. Goren
named the outstanding items of disagreement between the
parties as being length of workweek, seniority, holidays,
health and welfare, union security, successorship, hiring
hall, and retroactivity. Goren stated that the Union wanted
the Ports O'Call contract. The meeting was taken up most-
ly with caucuses, but no agreements were made. Commis-
sioner Vierra suggested , and Nichols agreed to have a new
company proposal ready for the next meeting.
The 13th negotiating session was on May 24, at which
time Nichols brought in Respondent's contract proposal
(G.C. Exh. 16) as agreed . The changes in position included
a 5-day instead of a 6-day workweek, a health and welfare
plan with the same benefits as received by the Ports O'Call
restaurant; six holidays instead of two; and the wage rates
called for in the Ports O'Call contract for 1 year. The pro-
posal covering hiring procedure, now entitled article III,
Employment, is, in substance, the same as the hiring provi-
sions in Respondents' February 27 and April 3 proposals.22
After a recess and review of the proposal, Goren noted that
there were no hiring hall or union-security provisions, and
stated that Respondents had given union-security and hir-
ing hall clauses to the Culinary Union when there were no
employees on the Queen Mary, and yet they refused to give
the same clauses to the Marine Cooks even though they
had won the representation election by a 2 to 1 majority
and "were entitled to the security of a union clause and the
hiring hall." Goren commented on the fact the wage scale
attached to the proposal was from the Ports O'Call con-
tract which covered a period of 5 years; but that Respon-
dents had crossed out all wage scales except for 1973, thus
offering only a 1-year contract with no union security or
hiring hall, apparently preparing to decertify the Union.
He also brought up the fact that the Company had wanted
the parking lot attendants included in the unit, but that the
Company's wage proposal didn't include them. Goren also
mentioned that all contracts in the area with the Culinary
Workers contained union-security provisions and that Re-
spondents were refusing to bargain in good faith. He then
stated the Marine Cooks were going out on an unfair labor
practice strike. Simmons testified that at the conclusion of
the session Goren stated "if they wanted any furhter meet-
ings to contact the Federal mediator. However, if they
wanted to go into continuous negotiating sessions there, to
come back at 2 o'clock and start negotiating and we will
keep hammering at it until we get a contract and with that
the meeting was adjourned subject to call of the mediator."
The strike, which commenced at approximately 4 in the
afternoon of May 25, resulted in the picketing of all the
Queen Mary's entrances. The 14th and final negotiating ses-
sion was held on May 30 with Nichols and Diederich on
behalf of Respondents, Goren, Gill, and Simmons on be-
half of the Union, and Commissioner Vierra from the Fed-
eral Mediation and Conciliation Service. At the com-
mencement of the meeting, Goren gave Nichols a copy of a
letter of the same date addressed to Commissioner Vierra
which reads: "It appears we have reached an impasse on
many issues in our negotiations with Queen Mary-Spe-
cialty Restaurants, and the M. C. & S. Union would
agree to a Federal binding arbitration on all the unresolved
requests from both parties. If the Company agrees to this
position, we would sit down and establish rules." Nichols'
response was that Respondents didn't want a third party to
make decisions for them and that another party would
cause more problems. Goren replied that binding arbitra-
tion would "resolve the headaches between the parties
rather than cause additional problems." In discussing Re-
spondents' last contract proposal, Goren stated it wasn't
unacceptable, but the Union would like Nichols to give
them a proposal on union security and hiring hall. Com-
missioner Vierra suggested a grandfather clause as an alter-
native, and Goren stated that since Nichols "professed to
22 The hiring proposal reads:
Section 1: Applicants for employment shall be hired by the Employer
on a non-discriminatory basis and such employment shall not be based
on, or in any way affected by, Union membership or lack of such
membership or by Union by-laws , rules , regulations , constitutional pro-
visions, or any other aspect or obligations of Union membership, poli-
cies or requirements.
Section 2 : The Employer shall be the solejudge of the qualifications of
all applicants and retains the right to reject any applicant for employ-
ment referred by the Union
Section 3. The Employer will not as a condition of hire or term of
employment or any term or condition of employment, either encourage
or discourage membership in the Union.
Section 4: The Employer and the Union agree that all employees work-
ing under classifications listed in the "wage Scale" contained herein
are properly within the bargaining unit
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represent those employees who did not vote for the Union
... that possibly this might be the solution to our appar-
ent bottleneck" since under that type clause, those employ-
ees employed at the time the contract was signed would not
have to join the Union.23 Nichols testified his position was
that a grandfather clause and union security "at this partic-
ular point . . . was one and the same thing and we could
see nothing that had been offered by the Union any differ-
ent and we were willing to discuss it, but we were not will-
ing to concede it at that point." Nichols further testified on
direct examination that he told Goren "that because of the
strike situation and so forth, that I was against it but that
in good-faith bargaining I would take it back to our execu-
tive committee and report the situation as it was . . . and if
they could argue me out of it, then we would concede it."
He later informed Vierra that the executive committee had
given him a vote of confidence indicating its support of his
position on the grandfather clause issue24 The meeting
ended after Nichols refused to change his position on
either union security or hiring.
Later in the day, while he was on the picket line, Goren
observed Tallichet and Esphani leaving the Queen Mary.
Goren's testimony regarding the conversation that fol-
lowed is:
I went up to him and asked him what it would take to
get a union security clause from the Company and he
stated that he didn't agree in compulsory unions. I
stated, well, that he had given [it] to us in the Banjo,
Inc., contract , we had union security and hiring hall in
the Banjo, Inc.
He said that-he said to us that . . . we didn't know
you well enough to give you union security. I said you
know us for 12 to 15 years on the Banjo, Inc., and we
have never had but one beef on the contract itself .. .
then I stated . . . if you think that you are repre-
senting the guys that voted against the Union, why
wouldn't you accept a grandfather clause. I brought
that issue up. He didn't answer back on that.
Then I said to him something to the effect that well,
you got to bargain with us; you have been bargaining
in bad faith and he said, yeah, I got to bargain, but
that don't mean I have to sign a contract. That was
about the gist of the conversation.
Tallichet was not called as a witness. Esphani testified as
follows regarding the pertinent portions of the conversa-
tion which he states he overheard:
Mr. Goren said, Dave, you and I know each other,
why don't we settle this. Tallichet said I am ready, but
we have to negotiate.
Then Mr. Goren said you don't want to sign a con-
tract, and he said yes, I am willing to sign a contract
but it is not going to be on your terms.
Then something came up with regard to Tallichet
xs Based on a composite of the credited testimony of Simmons and Gor-
en.
z4 On cross-examination Nichols testified that the reference to the execu-
tive committee was in connection with the Union's proposal for binding
arbitration and not on the subject of the grandfather clause . The testimony
of Goren and Simmons supports Nichols' direct testimony in this regard.
not to be against the Union in that respect and Talli-
chet said, no. As my memory serves me he said no, I
started in Long Beach; the Reef is my restaurant and
it belongs to the Culinary Union and the Ports O'Call
area, I have three restaurants there and they are all
union. I have Misteles, it is a union house and I have
a few more in Northern California. I will sign a con-
tract as long as it is based on the Culinary agreement
and negotiation.
He further testified that Tallichet confirmed Nichols' au-
thority to negotiate and that Nichols knew he could con-
tact Tallichet within "a half to 2 hours at the most, for any
signing of a contract or any decision making."
On May 26, Esphani sent the following telegram to all
employees who had not reported for work that day: "You
were scheduled to work Friday, May 25 and failed to re-
port or complete your shift. You are still scheduled to
work. Should you fail to report as scheduled or report to
your supervisor for you[r] schedule you will be perma-
nently replaced."
On June 11, Goren wrote Esphani regarding several
grievances and asking for a copy of the company health
and welfare program which had first been requested on
March 7. Nichols responded by letter the following day
with regard to the grievances. On July 5, Nichols wrote
Goren another letter stating that Diederich had been in-
formed by the NLRB that Goren had never received a
copy of the health and welfare plan in effect on the Queen
Mary, and that he was enclosing a copy of the present
group insurance program, but that it was different from the
last two company counterproposals "in that it did not con-
tain the option of clinic coverage." On July 16, Nichols
forwarded a copy of the banquet department "steady ex-
tra" waiters list. On July 26, Goren wrote Nichols two let-
ters, one proposing a meeting and making reference to an
article appearing in a local newspaper which Goren appar-
ently interpreted as quoting Nichols as stating that Re-
spondents had offered, and the Marine Cooks had refused,
the Ports O'Call Culinary contract. The other letter con-
tained an unconditional offer to return to work on behalf
of 66 individuals named therein, plus "John Does I
through 50." Nichols answered both letters on August 7,
commenting , inter alia, on Goren's interpretation of the
newspaper article and assuring him "that if this Company
has a different proposal with respect to the compulsory
unionism provisions which you have insisted upon, it will
not come through a newspaper, but rather through the col-
lective-bargaining process, presided over by a federal medi-
ator." With respect to the reinstatement of employees, he
stated "please be advised that we cannot act on your re-
quest until we find out who the unknown or undetermined
people are. Please advise us of the names of these people as
soon as possible."
On August 8, Goren wrote Nichols a letter containing an
unconditional offer to return to work on behalf of 29 indi-
viduals named therein and "John Does 1 through 50." On
August 20, he sent another letter with an unconditional
offer on behalf of all striking employees, and requesting
"an immediate series of negotiating meetings in an attempt
to reach a contractual agreement" and offering to assist
QUEEN MARY RESTAURANTS CORPORATION 793
Respondents in notifying the employees . On August 23,
Goren informed Nichols by letter that the Union was re-
moving its picket line "as a gesture of our good faith and
our desire for a peaceful and fair settlement . . . ." The
picket line was removed on August 25. On August 30, Die-
derich wrote Goren acknowledging receipt of the uncondi-
tional offers to return to work and stating Respondents'
position that the strike was economic and that permanently
replaced strikers would not be offered reinstatement. Die-
derich also stated he had contacted Commissioner Vierra
and that a negotiating meeting was scheduled for Septem-
ber 4.
On September 4, the parties met and each side reiterated
its position regarding the nature of the strike . A tentative
meeting was scheduled with Esphani for September 11 so
that the Marine Cooks could help Respondents locate
some of the striking employees that had moved . Goren re-
quested a seniority list showing the ratings and dates of
hire of all employees on the ship . He also asked "if there
was any change in the contract from 5-24-73 . . . and if
they would accept federal arbitration again and they said
no." On the following day , September 5, the Marine Cooks
resumed picketing the Queen Mary. The September 11
meeting with Esphani was cancelled by Nichols on Sep-
tember 10 on the ground Esphani was on vacation.
On September 16, Respondents ran an ad in the Long
Beach Independent, Press - Telegram for "Exper. Wait-
resses, Bartenders & Busboys ALL SHIFTS ," all three
classifications being within the unit represented by the Ma-
rine Cooks . On September 17, Esphani sent the following
letter to each of the striking employees : "We are anticipat-
ing a seasonal increase in restaurant and banquet business.
Should you wish to work for Queen Mary Restaurants
please contact the undersigned within 5 days of this date."
On September 25, Nichols sent Goren a list of all Queen
Mary employees as of September 15, indicating dates of
hire, wage rates, and classifications.
Following exchanges of correspondence not pertinent to
a resolution of these cases, on December 18, Nichols sent
Goren a list of 28 names that had been rehired.
C. Analysis
1. Direct bargaining with employees
Paragraph 10(a) of the complaint alleges that on or
about April 18, Respondents met and bargained directly
with employees with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employ-
ment . The evidence shows that at the April 17 negotiating
session, Goren brought up the fact the banquet waiters on
the ship were complaining that new employees were getting
more work than the "regular seniority waiters," and that
Esphani stated he was going to meet with the banquet wait-
ers the following day to discuss seniority and tips. Goren
responded that if seniority was to be discussed , he wanted
to attend . Esphani replied that the meeting was "an opera-
tional meeting" and that Goren couldn 't attend . On April
25, another grievance meeting was held regarding the
Union 's complaint that the banquet waiters with seniority
were not getting as much work as the new employees. Es-
phani produced a list of "steady banquet waiters" which
contained the names of "three more new people ." Goren
asked Esphani how the three new names got on the list. He
testified that:
Mr. Esphani said the way they got the three guys on
the list was this . He asked those that were attending
the meeting of the 18th who wanted to go on the
steady list and this is what he told me directly, and he
put those three on the list himself . I said to him, well,
you told me that you weren't going to discuss seniority
and I didn't think it was fair because the waiters at
that negotiations asked me if they had to attend that
meeting and I said no, it is operational and you have
been working for the company for about 2 years, as
long as they are not discussing tips or seniority, I
could see no business for them to go there as it was
their day off.
There can be no doubt but that Esphani knew the Union
was concerned with the employment or hiring list used by
Respondents in manning their banquets , nor can there by
any doubt that utilization of an employment list affects a
condition of employment . The evidence establishes beyond
any doubt that Esphani rejected Goren's request to attend
a meeting with employees represented by the Union at
which additions to the employment list were made as a
result of Esphani's direct contact with the represented em-
ployees . In N.L.R.B. v. Katz, 369 U.S. 736, 747 (1962), the
Supreme Court stated: "Unilateral action by an employer
without prior discussion with the union does amount to a
refusal to negotiate about the affected conditions of em-
ployment under negotiation , and must of necessity ob-
struct bargaining , contrary to the congressional policy."
On the basis of the foregoing, I find that Respondents, in
bypassing the Union and dealing directly with the employ-
ees regarding their placement on the employment list, vio-
lated Section 8(a)(5) and (1) of the Act.
2. The March pay increase
Paragraph 10(b) alleges that on or about March 7 Re-
spondent granted employees a pay increase retroactive to
March 1 , without first giving notice to or bargaining with
the Union.
Respondent admits to having given the pay increase
without first giving notice to the Union, and the record
further shows that wages had not yet been discussed during
negotiations. Respondent , however, contends the wage in-
crease was lawful since given pursuant to its policy of
many years of paying the same wages that the Local Culi-
nary Workers contract calls for in the particular area; that
the Culinary Workers Union contract in the Long Beach-
Orange County area called for a wage increase in March;
that the Marine Cooks had a copy of the Culinary Union
contract and knew that the agreement called for a wage
increase in both March 1972 and 1973.
Insofar as Respondents' established policy is concerned,
the restaurant and bar facilities aboard the Queen Mary
were not opened until 1971, and the first wage increase
which was granted in May 1972 retroactive to April 1, was
found by Administrative Law Judge Boyce to have been
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawful in that it "was calculated to induce the employees
to withhold their support from the Union." While it may
have been the policy of Specialty Restaurants to pay the
unrepresented employees of its subsidiary companies the
wages provided for in Local Culinary Union contracts, it
can hardly be said that such a policy has been established
with respect to the Queen Mary employees for two rea-
sons : (1) Those employees were represented by the Marine
Cooks at the time of the unilateral wage increase; and (2)
the only prior wage increase was granted for the unlawful
purpose of inducing employees to withhold their support
from the Marine Cooks.
In N.L.R.B. v. Katz, supra, a case involving unilateral
employer action during negotiations without prior notice
to the Union, the Supreme Court noted "there might be
circumstances which the Board could or should accept as
excusing or justifying unilateral action." In this regard, the
Board has found such justification by reason of necessity 25
and by waiver of acquiescence of the Union.26 I conclude,
however, that in the circumstances of this case, no justifica-
tion for unilateral action existed. Since Respondents were
under an obligation to bargain collectively with the Marine
Cooks at all relevant times, the ensuing wage increase was
in contravention of the obligation under Section 8 (a)(5) to
bargain collectively with the Union in respect to wages and
other conditions of work, because given unilaterally with-
out notifying or consulting with the Union in advance.
N.L.R.B. v. Katz, supra; Chatham Manufacturing Company,
172 NLRB 1948 ( 1968).
3. Refusal to meet with the Union's agent
Paragraph 10(c) alleges that in March Respondents re-
fused to meet and bargain with Gill, a business agent au-
thorized by the Union to meet and negotiate on its behalf.
Goren testified that he had talked to Nichols on March
12 and that Nichols canceled a tentative meeting scheduled
for that date.27 Goren scheduled to leave for Ireland on a
week's vacation, told Nichols that he should get together
with Gill "and proceed on negotiations in the language
area." Goren testified that Nichols "didn't say he wouldn't
meet with him." Gill, following Goren's instructions that
he should try and get as much of the contract language
resolved as possible, called Nichols the same day and re-
quested a copy of the Employer's counterproposal. Nichols
responded that he would commence working on it that
day. While Gill didn't testify that he requested a meeting
with Nichols on March 12, he testified that Nichols stated
he was working on some reports for his president. "and
that's why he could not meet with me."
Gill testified that on March 15 he called Nichols and "I
was very angry," and "I think I probably made him angry
by me being angry." Gill told Nichols he "wanted to follow
my boss' instructions and have a lot of the non -cost items
25 See, for example , New York Mirror, Division of the Hearst Corporation,
151 NLRB 834, 841 (1965).
26 U. S. Lingerie Corporation, 170 NLRB 750, 752 (1968), Murphy Diesel
Company, 179 NLRB 149 at fn 1 (1969); Justeen's Food Stores, Inc., et at,
160 NLRB 687, 693-694 (1966)
27 Simmons testified that no meeting was scheduled following the March
7 meeting.
out of the way so by the time he got back from Ireland that
we could get down to the nitty-gritty of the contract." At
that point, "he [Nichols] got angry also," and told Gill that
he didn't have to negotiate with him because "you have no
authority to negotiate. Joe Goren is the chief negotiator."
Gill then obtained a telegram from Turner, the Marine
Cooks president and executive secretary, stating Gill was
authorized to negotiate on the Union's behalf. When Gill
personally delivered a copy to Nichols, he stated "now
maybe you will negotiate with me," and Nichols replied
that "he was busy with constructional bids." Thereafter, by
telegram, Gill requested a meeting on March 19, 20, or 21.
Nichols declined to meet on those dates because of the
unfair labor practice hearing scheduled to commence on
March 20 and proposed a meeting on the day following the
close of the hearing.
While there is no doubt that on March 14 Nichols told
Gill that "you have no authority to negotiate. Joe Goren is
the chief negotiator," this statement was made in the heat
of argument, Gill admitting that he was "very angry" when
he called Nichols on that day, and "I think I probably
made him angry by me being angry." I conclude from the
evidence that Nichols , at least , had calmed down by the
time Gill brought him the telegram from Turner. Gill's tes-
timony does not disclose a request for a meeting at any
specific time, only that he was seeking recognition from
Nichols that he was authorized to bargain on behalf of the
Marine Cooks. I must assume that Nichols construed the
statement as a request to meet at that moment and that the
issue of authority to negotiate no longer existed since Ni-
chols' response was to the effect he was busy with con-
structional bids.
The Board and courts have repeatedly held that an em-
ployer has no voice in the selection by its employees of
their collective-bargaining representative and that, absent
exceptional circumstances, an employer's refusal to bar-
gain collectively with the agents duly appointed to repre-
sent its employees at the negotiating table constitutes a
violation of Section 8(a)(5) and (1) of the Act. While there
was perhaps a technical violation of the Act when, on
March 14, Nichols questioned Gill's authority to act as the
Union's collective-bargaining representative, Gill had been
angry and had angered Nichols. Moreover, the matter was
cleared up on the same day. I find, therefore, that in these
circumstances a remedial order is not warranted and rec-
ommend the dismissal of this allegation.
4. Refusal to supply requested information
Paragraph 10(d) alleges that since on or about April 23
Respondent failed and refused to supply the Union with
requested information, including, but not limited to, se-
niority, hiring dates, and number of hours worked by em-
ployees28
The record shows that during the negotiating meeting of
March 7, Goren requested that the parties exchange health
and welfare plan proposals and requested a copy of the
plan then in effect on the Queen Mary. At the negotiating
28 The General Counsel stated at the hearing that the Respondents' fail-
ure to provide a copy of its health and welfare plan was also covered by this
paragraph.
QUEEN MARY RESTAURANTS CORPORATION 795
meeting of April 3, Goren gave a copy of the Union's
health and welfare plan to Nichols and again requested a
copy of the plan in existence on the Queen Mary. On April
30, Goren stated he would go along with Respondents'
health and welfare plan "if you can show it to me and it is
better than ours . . . ." He again requested a copy of the
plan in a June 11 letter to Esphani. By letter dated July 5,
Nichols transmitted a copy of the plan to Goren. Thus, it is
seen that the Union's request for a copy of the Respon-
dents' health and welfare plan was not met until approxi-
mately 4 months after it had first been requested and more
than a month after the strike commenced.
On April 23, in a letter to Nichols, Goren requested "the
seniority list, and date of hire of all employees, within the
jurisdiction of the bargaining unit." On the following day,
at a negotiating meeting , Goren renewed the request. Ni-
chols' response was that he would have to ask Diederich if
it was permissible to give him the list. On April 30 and
again on May 1, Goren requested a copy of the seniority
list 29 Again on September 4, Goren , in writing , requested
the seniority list. On September 15, Nichols mailed him the
requested list. As shown, Respondents failed to comply
with the request for approximately 5 months.
Respondents contend the April, May, and June seniority
list requests refer to the "steady waiters list" which the
Union wanted for the purpose of resolving a grievance re-
garding the banquet waiters and that the list was made
available during the grievance meeting of April 25; and, in
any event, the list didn't appear to be a substantial problem
with the Union since it wasn't discussed at any of the last
few meetings in May. Goren's letter to Nichols of April 23
is specific in that it requests "the seniority list, and date of
hire of all employees, within the jurisdiction of the bargain-
ing unit." Nichols' reaction was that he would have to ask
Diederich if it was permissible to give him such a list. I am
satisfied there was no confusion or misunderstanding re-
garding the request. On April 30, 5 days after Goren had
seen the "steady extra list," Nichols told Goren, in re-
sponse to a renewed request , that it should be ready soon.
The fact that Nichols, long experienced in collective-bar-
gaining matters , told Goren he would have to check with
Diederich to see if it was permissible to give him the list,
and the long delay in actually forwarding such a list, indi-
cates to me, and I find , that Nichols was engaging in delay-
ing tactics in furnishing the Union necessary and relevant
bargaining information. As for the delay of almost 4
months in furnishing the Union with a copy of the health
and welfare plan in effect on the ship , no real explanation
has been given.
The Board and courts have long recognized group health
and welfare insurance and matters related to seniority as
mandatory subjects of collective bargaining . The fact that
Respondents ultimately furnished the information request-
ed does not absolve it from its violation of the Act. This is
not the case of an employer protecting itself against unrea-
sonable requests for information . See, for example , United
29 On April 25, Esphani produced a list of steady banquet waiters in
relation to a grievance . Apparently the Union didn't obtain a copy of that
since on June 11, Goren directed a letter to Esphani requesting such a list.
On July 16, Nichols sent Goren a list of "steady extra" banquet waiters.
States Gypsum Company, 200 NLRB 305 (1972). As no jus-
tifiable reason for the protracted delay in providing the
Union with necessary and relevant bargaining information
was shown, I find the Respondents' conduct wholly incon-
sistent with its statutory obligation and the right of the
employees under the Act, in violation of Section 8(a)(5) of
the Act. Keystone Casing Supply, Inc., 196 NLRB 920
(1972).
5. Refusals to make proposals and counterproposals on
essential matters
Paragraph 10(e) alleges that, since on or about January
18, Respondents have failed and refused to make contract
proposals or counterproposals on essential matters and
have failed to make a reasonable effort to compromise dif-
ferences on these matters. General Counsel has taken the
position that the essential contract matters about which
Respondents have failed to bargain in good faith are hiring
hall and union security. Both the General Counsel and Re-
spondent agree, and it is clear from the record, that those
two subjects were in fact the stumbling block to an agree-
ment.
Section 8(d) of the Act defines the duty to bargain as the
mutual obligation "to meet at reasonable times and confer
in good faith with respect to wages, hours, and other terms
and conditions of employment, or the negotiation of an
agreement." The statutory standard thus adopted contem-
plates a willingness to enter into discussion with an open
mind and a sincere intention to reach an agreement consis-
tent with the respective rights of the parties. N.L.R.B. v.
Texas Coca-Cola Bottling, 365 F.2d 321, 322-323 (C.A. 5,
1966). "While the Board cannot force an employer to make
a `concession' on any specific issue or to adopt any posi-
tion, the employer is obliged to make some reasonable ef-
fort in some direction to compose his differences with the
union . . . . The ultimate issue whether the company con-
ducted bargaining negotiations in good faith involves a
finding of motive or state of mind which can only be in-
ferred from circumstantial evidence . . . the prior history
of the employer's labor relations, whether good or bad,
may be relevant." Employers are duty bound to make sen-
ous proposals with a view towards "meeting the union at
least part way." N.L.R.B. v. Reed & Prince Manufacturing
Company, 205 F.2d 131 (C.A. 1, 1953), cert. denied 346
U.S. 887. Bearing in mind these principles, I conclude and
find that Respondents have engaged in a deliberate course
of surface bargaining with the Union in contravention of
Section 8(a)(5).
Prior to opening its facilities on the Queen Mary, Re-
spondents recognized and signed a collective-bargaining
agreement with the Culinary Workers, which, as a result of
charges filed with the Board by the Marine Cooks, was
nullified. Thereafter , three elections were held resulting in
the defeat of the Union selected by the Respondents to
represent their employees and certification by the Marine
Cooks, the choice of the employees. Respondents' hostility
toward the Marine Cooks became the subject of an unfair
labor practice hearing and decision wherein the Respon-
dents were found to have engaged in numerous violations
of the Act as set forth in the section entitled "Background"
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein. One of the findings is particularly pertinent since it
is based on a statement made by the Respondents' labor
negotiator, John Nichols. Administrative Law Judge Boyce
found that Nichols told employees, inter alia, that a (Ma-
rine Cooks) Union win would be futile because it would be
5 years before Respondents would agree to a bargaining
contract. Of further signficance in ascertaining Respon-
dents' attitude toward bargaining is the fact that Nichols,
Tallichet, and Irwin had met prior to negotiations and de-
cided that they would not agree to either a hiring hall or
union-security clause because (1) Respondents could not
afford to cut themselves off "from the pool of waiters that
are existing in the Culinary Union"; (2) since practically all
waiters in the Los Angeles area belong to the Culinary
Union, Respondents "did not feel that they [the employees]
could be very comfortable nor the Culinary [Union] very
comfortable with dual unionism"; and (3) "the Marine
Cooks and Stewards could not set up an effective strike
and shut us down." Further indicative of Respondents' at-
titude in negotiating with the Marine Cooks is Nichols'
claim, as an excuse on February 14 for not setting a date to
continue negotiations, that Diederich was going over the
Union's first proposal. That representation was false and it
was left for Goren to learn from Diederich on February 21
that he (Diederich) had nothing to do with the negotia-
tions.
A brief resume of the negotiations shows convincingly
that the Respondents' approach to the bargaining table
was not with "an open mind and a sincere intention to
reach agreement" and that the Respondents, although "ob-
ligated to make some reasonable effort in some direction to
compose his differences with the Union" failed to do so.
To the contrary, I am convinced that Respondents, having
formulated a policy of not agreeing to either hiring hall or
union-security clauses, engaged in a course of bargaining
designed to frustrate bargaining and provoke a strike.
Through 13 negotiating sessions covering the period
from January 18 to May 24, Respondents failed to make
any effort to resolve the differences between the parties on
either hiring or union security, whereas the Marine Cooks
came forth with several alternative proposals or signified
agreement to proposals made by the Federal mediator.
On January 18, Goren presented Nichols with the
Union's initial contract proposal containing union-security
and hiring hall provisions (G.C. Exh. 8). The Respondents'
counterproposal of February 27 (G.C. Exh. 10) contained
the provision that the employer would hire on a nondis-
criminatory basis and be the sole judge of the qualifica-
tions of all applicants. The hiring hall and union-security
provisions in the Union's contract proposal of March 1,
discussed at the March 7 meeting, were taken from the
Ports O'Call contract between the Culinary Union and
other subsidiary restaurants wholly owned by Specialty
Restaurants. Nichols rejected the proposal on the ground
the Respondents couldn't afford to cut themselves off from
the Culinary Workers Union pool and that Respondents
didn't feel it could force employees to join the Marine
30 "Good faith bargaining necessarily requires that claims made by either
bargainer should be honest claims ." N LR.B. v. Truitt Mfg. Co., 351 U.S.
149 (1956).
Cooks and Stewards Union. His rejection on those grounds
is weak in view of his testimony that the Queen Mary hires
people who either walk in off the street, are referred by
other employees, or are obtained through advertising in the
newspaper ; and the further fact Respondents had executed
an agreement with the Culinary Union even before the
Queen Mary had opened which contained union-security
and hiring hall clauses. Furthermore, the Long Beach-Or-
ange County and the Ports O'Call contracts, both covering
Specialty Restaurants' subsidiary companies, contain
union-security and hiring hall clauses. Of further signifi-
cance is the fact Respondents' April 3 proposal on hiring
was the same as that contained in its March 1 proposal,
except that it added a paragraph providing that the Em-
ployer would not encourage or discourage membership in
the Union. Goren's request that Nichols agree to the same
hiring provision that Specialty Restaurants had with the
Culinary Workers was again rejected because Respondents
didn't want to cut itself off from the Culinary Union labor
pool. Union security was again rejected because Nichols
wouldn't force Respondents' employees to join a union.
Federal Mediator Vierra proposed an agency-shop agree-
ment which Goren stated was acceptable but which Ni-
chols rejected. Nichols' representation that he would give
the Marine Cooks a proposal on both hiring and union
security was never fulfilled. At the next meeting, April 13,
Goren proposed that Respondents interview all applicants
for employment, send them to the Union for registration
on the dispatch list, and thereafter Respondent could pick
and choose from the list those employees it wished. The
union representatives thought there was an agreement, but
at the April 17 meeting Nichols rejected a proposal drafted
by Gill on the ground it didn't conform to the April 13
discussion. Agency-shop and grandfather clauses were pro-
posed by the Federal mediator, which were acceptable to
the Union but not to Nichols on the ground he didn't want
to have forced compulsory unionism or to make a decision
for those who voted against the Union. In spite of having
had a collective-bargaining relationship containing a
union-security and hiring hall provision covering Banjo,
Inc., for more than 10 years, Nichols took the position that
the Marine Cooks and Stewards were "too new in this field
and we wanted to see what type of performance before we
made a decision such as that," and that the Company
didn't feel that it had the "moral right to make that deci-
sion" for the employees who had voted against the Union.
At the April 30 meeting, Nichols again stated that he
would submit some wording on "hiring" for the Union's
consideration. Nichols reiterated his opposition to union
security and that the Company represented those employ-
ees that voted against the Union. ' At the May I meeting
31 A union, once certified as the collective-bargaining representative of
employees in an appropriate unit , has the duty to represent all employees
within the unit regardless of the way they may have voted in an election and
regardless of their union sentiment and cannot betray the trust by bargain-
ing special benefits to union members only See, for example, The Radio
Officers' Union of the Commercial Telegraphers Union, A F.L [Bull Steamship
Co.] v. N.LR.B., 347 U.S. 17 (1954). There is, of course , the correlative duty
on the part of the employer to recognize the certified union as the represen-
tative of all of the employees in the unit on the same basis and to negotiate
with the union in a bona fide effort to arrive at a collective -bargaining
agreement.
QUEEN MARY RESTAURANTS CORPORATION
Goren stated that, while the Union wanted standard hiring
hall and union-security clauses, he was willing to modify
his position and give ground in an attempt to work out
something acceptable to Respondents. The credited testi-
mony shows that, although Nichols avoided discussing the
subject, he stated he would agree to the Long Beach-Or-
ange County contract without the hiring hall or union-se-
curity provisions found therein.32 The hiring hall and
union-security provisions presented in the Marine Cooks
contract proposal of May 3 (G.C. Exh. 15) were patterned
after the Long Beach-Orange County agreement. Goren
stated he was not firm and was willing to negotiate on
them; however, whenever the subjects were brought up,
Nichols would change the subject. Bums and Commission-
er Vierra proposed, and Goren agreed, to negotiate within
the framework of harbor area labor contracts insofar as
hiring and union security were concerned. Nichols' re-
sponse was that he didn't have authority to negotiate on
hiring and union security at that time. He reasserted his
position that he was a spokesman for, and represented, the
people who had voted against the Union. At the May 9
meeting, Nichols again declined to make any counterpro-
posal to Goren's last proposal on union security and hiring
and failed to give any assurance that he was able or willing
to negotiate on those points, instead he reiterated his posi-
tion that he represented the people that voted against the
Union and union security was not a good idea. Goren
again offered to discuss any proposal Nichols might offer
and that he would agree that the Union would send the
Company only people the Company had already inter-
viewed and approved. The evidence establishes that Ni-
chols did not respond to the proposal. Respondents' May
24 proposal, insofar as hiring is concerned, is identical to
the April 3 proposal.33 At the May 25 meeting, Nichols
again rejected a grandfather clause on the ground it was
the same thing as union security and that he could see
nothing different that had been offered by the Union.
I find on the basis of the foregoing facts and authorities
that the General Counsel has established by a preponder-
ance of the evidence that the Respondents engaged in dila-
tory and evasive tactics and surface and bad-faith bargain-
ing by failing to approach the bargaining table with a
willingness to enter into discussions with an open mind and
a sincere intention to reach agreement , and by failing to
make counterproposals and a reasonable effort to compro-
mise differences on hiring and union security.
6. The letter of April 20 and telegram of May 26
Paragraph 12 of the consolidated complaint, which alleg-
32 In Roanoke Iron & Bridge Workers, Inc., 160 NLRB 175 (1966), enfd.
390 F.2d 846 (C.A.D.C., 1968), cert . denied 391 U.S. 904 ( 1968), the Board
found indicative of bad-faith bargaining, the fact an employer rejected as a
matter of principle, a mandatory subject of collective bargaining which it
had granted to a "favored local union."
33 The April 3 proposal had added the following paragraph to the propos-
al of February 27: "The employer will not as a condition of hire or terms of
employment or any term or condition of employment , either encourage or
discourage membership in the Union." The May 24 proposal added the
following additional paragraph : "The employer and the Union agree that
all employees working under classifications listed in the 'wage scale' con-
tained herein are properly within the bargaining unit."
797
es that the April 20 letter distributed to employees by Es-
phani was unlawful in that it conveyed the threat that un-
fair labor practice striking employees could be perma-
nently replaced, and paragraph 14, which alleged the May
26 telegram advising employees they would be perma-
nently replaced if they failed to report for work as sched-
uled, may be considered together.
Employees who quit lose their employee status and have
no legal right to reinstatement or reemployment. Strikers,
on the other hand, retain their employee status and have
certain reemployment rights even after they have been re-
placed. The Laidlaw Corporation, 171 NLRB 1366 (1968),
enfd. 414 F.2d 99 (1969), cert. denied 397 U.S. 920 (1970).
Thus, in telling the employees, in effect, that they would
end their employment and forfeit their reinstatement rights
by engaging in a strike or by failing to report for work as
scheduled, Respondents misstated the law and violated
Section 8(a)(1) of the Act. Dayton Food Fair Stores, Inc. v.
N.L.R.B., 399 F.2d 153 (C.A. 6, 1968); Tommy's Spanish
Foods, Inc., 187 NLRB 235 (1970), enfd. in pertinent part
463 F.2d 116 (C.A. 9, 1972); Hicks-Ponder Co., 186 NLRB
712, 725 (1970).
7. The strike and offers of reinstatement
Clearly, the strike , which commenced on May 25, was
temporarily suspended on August 25 and resumed on Sep-
tember 5 , was caused by the Respondents' unfair labor
practices as found above.
By letters dated July 26 and August 8, the Union made
unconditional offers of reinstatement on behalf of 66 and
29 named individuals and, on August 20 , it made an un-
conditional offer of reinstatement on behalf of all employ-
ees. Having found that the strike was an unfair labor prac-
tice strike from its inception , it follows that the strikers are
unfair labor practice strikers and entitled to unconditional
reinstatement with backpay "even if replacements for them
have been made ." Mastro Plastics Corp. v. N.L.RB., 350
U.S. 270, 278 (1956).
By failing and refusing to reinstate the unfair labor prac-
tice strikers as unconditional offers for their return to work
were made by their authorized collective-bargaining repre-
sentative, Respondents have discriminated in regard to the
hire and tenure of employment of employees in violation of
Section 8(a)(3) of the Act.
D. Respondents ' Affirmative Defenses
1. Acts of violence and destruction
Nichols testified that about 5 p.m. on May 25, when the
strike commenced, "well over fifty pickets" congregated at
the service and public entrances to the Queen Mary. There
was "a large milling around. Some of our people tried to
come through the line was . . . shoved. They were operat-
ing with bullhorns." He testified that on May 26 "once
again what I observed is their use of bullhorns and shout-
ing and screaming and pushing." The same conditions ex-
isted on May 27, 28, and 29. On May 30, an injunction
limiting the number of pickets was issued. Sometime dur-
ing the period May 25 to May 30, the tires on Nichols' car
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were slashed and the car was "stink bombed."
Esphani testified that on May 29 a picket named Tony
Hernandez, with whom he had "a very good relation prior
to the strike," was pushed from behind and struck Esphani
in the stomach as he fell. Esphani didn't contend that Her-
nandez doubled-up his fist and swung at him, nor was Her-
nandez arrested even though police were in the vicinity.
Personnel Manager Leighton testified that, shortly after
the strike commenced, he received a telephone call that a
member of the Union had been apprehended slashing tires
in the parking lot. He proceeded to the parking lot to ad-
vise the police and was surrounded by pickets who "shout-
ed and yelled such things as pig and things of this nature to
me. One in particular, a fellow by the name of Joe Mar-
dones start[ed] kicking me in the shin which drew blood. I
paid no attention to it and proceeded on into the ship." He
testified that as he was walking toward the ship a picket
named Tony "reached out and slugged me in the face
knocking my glasses from me onto the sidewalk." Leighton
retrieved his glasses and proceeded on into the ship. No
complaint was filed against Tony nor was he arrested.
Leighton did not know if anyone was apprehended and
arrested for tire slashing.
Sue Thompson, manager of Fish & Chips on the Queen
Mary, testified that near the end of June she saw Tony
Hernandez throw a stink bomb in one of the elevators on
the Queen Mary. She testified: "I had a cold and I didn't
smell it and then some people got on the elevator and just
smelled it and said it smelled real bad and I said it must
have been a stink bomb. So I just told the security guard
that I saw them throw a stink bomb." On July 24, Hernan-
dez was charged with the misdemeanor offense of "373 (1)
P.C. Offensive Substance in place of Assemblage." On Sep-
tember 14, the complaint was amended to add the offense
of "Sec. 415 P.C.," Disturbing the Peace, to which Hernan-
dez entered a plea of "Nolo Contendere," and the "373
... Offensive Substance" allegation was dismissed. He re-
ceived a suspended sentence and a hundred dollar fine on
the charge of disturbing the peace.
Even assuming the Union's responsibility for the mis-
conduct set forth above, a fact not established on the rec-
ord,34 the aforementioned incidents are, at the most, isolat-
ed and, weighed against the Employers' unfair labor
practices which provoked the strike, are not so widespread
or pervasive as to absolve the Respondents from bargain-
ing with the Union. Cascade Corp., 192 NLRB 533 (1971).
Accordingly, I reject this affirmative defense.-
2. The Union bargained in bad faith and adopted a "take
it or leave it" attitude
The evidence established that the Union made numerous
proposals which materially modified its initial proposals on
union security and hiring hall, and indicated assent to pro-
posals made by both the Federal mediator and Burns.
Moreover, Goren testified, and the evidence shows, that
the Union was willing to forego a hiring hall if it could gain
34 The record established that individuals who were not members of the
Union or employees of the Queen Mary, including tourists, also participated
in the picketing.
a concession in other areas such as wages, union security,
health and welfare or pensions. As I have previously found
and as is clear from the record, it was Nichols who was
inflexible in the areas of union security and hiring hall, and
not the union representatives. I therefore find no merit in
this defense.
3. The Union discriminates against members and
applicants on the basis of sex, race, and national origin
Respondents contend they are relieved of their duty to
bargain because the Union practices discrimination based
on sex , race , and national origin, citing N.L.R.B. v. Man-
sion House Center Management Corporation, 473 F.2d 471
(C.A. 8, 1973). Insofar as the allegations of discrimination
based on race and national origin are concerned, the unre-
futed evidence shows that 30 to 35 percent of the Union's
membership is composed of Blacks; that 50 percent of the
crew on some ships are Orientals; that, while the contract
between the Pacific Maritime Association and Marine
Cooks & Stewards covering offshore employment refers to
certain rated jobs as Japanese, Filipino, or Chinese, indi-
viduals of those national origins are not restricted to those
jobs. Also, the rates of pay for those jobs are the same as
the corresponding nonnationally designated jobs, and
there was testimony that at least some of those nationally
designated rates are no longer in existence. Furthermore, 5
to 10 percent of the Union's membership is made up of
noncitizens. I find therefore that Respondents have failed
to make a prima facie showing that the Union has engaged
in discrimination on the basis of race or national origin.
Respondents contend the Union "by its Constitution
and practices has determined to protect the jobs of its 'sea-
faring men' against intrusion by noncitizens . . . and par-
ticularly against intrusion by `allied workers' who are wom-
en." Referring to the preamble to the constitution and
article XXVI entitled "Contract Classifications," Respon-
dents conclude that, while women may work under class II
or III contracts, they are excluded from working under
class I contracts; and that, since only members working
under class I contracts are permitted to vote in union elec-
tions , women are "foreclosed from voting in union elec-
tions and electing sympathetic union officials." I have
carefully examined the record testimony and the Union's
constitution and can only conclude that Respondent, in
arriving at its conclusions, has assumed facts which are not
in the record before me.
Goren testified that women customarily perform the fol-
lowing job ratings on ships: beautician, yeomanette, wait-
ress, stewardess , nurse , and PBX operator; and that men
customarily perform the following: messmen , porter, assis-
tant cook, chief cook, chief steward, second cook and bak-
er, cook and steward, utility man, room steward, waiter,
storekeeper, assistant storekeeper, third steward, second
steward, scullion , grill cook, roast cook, soup and fish, sous
chef, chef, pantryman, larder cook, round cook, chief bak-
ery, pastry chef, second baker, third baker, bartender, and
smokeroom steward. He testified that while men had "tra-
ditionally" shipped in these classifications, women are
physically capable of filling them and, if they "put in" for
those jobs and had the proper documents issued by the
QUEEN MARY RESTAURANTS CORPORATION 799
Federal government signifying their qualification, they
would be dispatched to openings in those ratings. No wom-
en have, in fact, ever "put in" for such jobs 35 At no place
in the record are class I, II, and III contract members de-
fined. Respondents, it appears, have assumed that the men
working offshore listed immediately above are in class I,
but that the women also working offshore are not. The
record does not so show. Nor does the constitution or the
testimony disclose that women are prohibited from becom-
ing full book members , are foreclosed from voting in union
elections or discriminated against with respect to seniority.
The record shows that women have access to the Union's
hiring hall and are dispatched to offshore jobs, and there is
no contention that the shipboard jobs traditionally filled
by men are more desirable than those filled by women.
Moreover, the contract between the PMA and Marine
Cooks and Stewards show that male and female employees
in corresponding job titles are paid the same [e.g., assistant
head waiters are paid the same as assistant head waitresses;
yeomen as yeomanette; steward as stewardess, stewardess
(child), stewardess (library-child), stewardess (library),
stewardess (Japanese), stewardess (Chinese), etc.]
Respondents further contend the Union has pursued a
closed door policy with respect to its training school at the
Don Hotel. Over the years the school has graduated from
60 to 75 students per year, none of whom have been wom-
en. Goren's testimony reveals that the training program,
mostly for "lower entry ratings of porters , messmen, scul-
lions" is approved by the Board of Education and is oper-
ated by a joint apprenticeship committee consisting of rep-
resentatives of the Union, the ship owners, the government
agency which funds the program and the State of Califor-
nia Department of Human Resources Development. All
school trainees are selected by the California Department
of Human Resources Development on the basis of "ethnic
group, veterans , etc." The State has never selected a wom-
an as a trainee for the school . In the past the Union has
participated in a training school in Monterey, California,
which trained women.
Respondents contend that the proportion of PMA (off-
shore) jobs available to women 75 36 to 1,100 total offshore
jobs "flies in the face of the division between men and
women" in California (50.8 pecent female and 49.2 percent
male) and the United States (51 percent female and 49
percent male). Respondents contend "this kind of policy is
further highlighted by the fact that Department of Com-
merce figures show that for 1970, there were 15,910 persons
employed on merchant vessels , 352 of whom were fe-
males ." These figures show that the percentage of jobs
available to women dispatched from the Marine Cooks hir-
ing hall to offshore jobs is approximately 6.6 percent,37
while the percentage of women employed aboard all mer-
chant vessels is 2.2 percent. Thus, it is seen that employ-
ment opportunities for women using the Marine Cooks hir-
ing hall are triple those in the industry. Furthermore, the
75 The record does not disclose whether any women have applied for,
possess, or been denied the appropriate documents by the Federal govern-
ment.
76 Goren testified there were 75 to 85 jobs filled by women.
37 This figure is based on 80 jobs.
record shows that no grievance has ever been filed against
the Union for refusing to dispatch because of sex, nor-have
unfair labor practice charges or Title VII proceedings al-
leging sex discrimination been brought against the Union.
On the basis of the foregoing and the entire record, I
find the evidence insufficient to sustain the Respondents'
affirmative defense that the Union has engaged in a pat-
tern of discriminatory conduct which would relieve Re-
spondents of their duty to bargain with said Union.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Queen Mary Restaurants Corporation; and Q. M.
Foods, Inc., the Respondents, are an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Marine Cooks & Stewards Union, affiliate of the Sea-
farers' International Union of North America, AFL-CIO,
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All employees of the Employer aboard the Queen
Mary, excluding office clerical employees, professional em-
ployees, guards, watchmen and -supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. The Union is the exclusive representative of all the
employees in the aforesaid unit for the purposes of collec-
tive bargaining within the meaning of Section-9(a) of the
Act.
5. Respondents have engaged and are engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act by the following acts:
(a) On or about April 18, 1973, Respondents met with
and bargained directly with employees regarding their
placement on the employment list without notification to
or consultation with the Union.
(b) On or about March 7, 1973, Respondents granted
employees a general pay increase without notification to or
consultation with the Union.
(c) Delaying for periods of 4 and 5 months to supply the
Union with necessary and relevant bargaining information.
(d) Failing and refusing to make proposals or counter-
proposals on hiring procedures and union security, essen-
tial contract matters, and failing to make a reasonable ef-
fort to compromise differences on those matters.
6. By - distributing to employees letters conveying the
threat that unfair labor practice striking employees could
be permanently replaced, Respondents violated Section
8(a)(l) of the Act.
7. By sending employees telegrams on or about May 26,
1973, that they would be permanently replaced if they
failed to report for work as scheduled, Respondent violated
Section 8(a)(1) of the Act.
8. The strike of the employees on May 25, 1973, was
caused and prolonged by the unfair labor practices herein
found to have been engaged in by Respondents, and there-
fore became an unfair labor practice strike.
9. By failing and refusing to reinstate the unfair labor
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice strikers who unconditionally offered to return to
work on July 26, and August 8, respectively , and the re-
maining unfair labor practice strikers who unconditionally
offered to return to work on August 20, Respondents have
engaged in and are engaging in unfair labor practices with-
in the meaning of Section 8(a)(3) and (1) of the Act.
10. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
mitted , the commission of similar and other unfair labor
practices reasonably may be anticipated. I shall therefore
recommend that Respondents be ordered to cease and de-
sist from in any manner infringing upon the rights guaran-
teed to its employees by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
THE REMEDY
Having found that the Respondents have engaged in and
are engaging in certain unfair labor practices affecting
commerce, I shall recommend they cease and desist there-
from and take certain affirmative action in order to effec-
tuate the purposes of the Act.
It will be recommended that Respondents , upon request,
bargain collectively in good faith with Marine Cooks &
Stewards Union, affiliate of the Seafarers' International
Union of North America, AFL-CIO, as the exclusive rep-
resentative of all employees in a unit herein found to be
appropriate for the purposes of collective bargaining, with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, including pro-
viding relevant and essential material when requested by
the Union and, if an understanding is reached , embody
such understanding in a signed agreement.
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) and ( 1) of the
Act, which conduct caused and prolonged the unfair labor
practice strike which began on May 25, 1973, it will be
recommended that Respondents offer to all its employees
who engaged in the strike beginning May 25, 1973, rein-
statement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges, dismissing , if necessary , any employees
hired to replace the striking employees , and that Respon-
dents make them whole for any loss of pay they may suffer
by reason of the Respondents ' refusal to reinstate them,
upon request , by payment to each of them of a sum of
money equal to that which he normally would have earned
as wages during the period beginning 5 days after the date
on which unconditional offers to return to work were made
on behalf of said employees, and terminating on the date
of the Respondents' offer of reinstatement , such loss to be
computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962) 38
It is also recommended that Respondents be ordered to
make available to the Board , upon request , payroll and
other records to facilitate checking the amounts of earnings
due.
In view of the nature of the unfair labor practices com-
31 The backpay period for all employees listed on: (1) G.C. Exh. 17 shall
commence July 31, 1973; (2) G.C. Exh. 18 shall commence August 13, 1973.
All others shall commence August 25, 1973. There is evidence in the record
that one or more of the individuals listed in G .C. Exhs. 17 and 18 may not
have been employed by Respondent . Such issues may be resolved at the
compliance stage.
ORDER39
Respondents, Queen Mary Restaurants Corporation;
and Q . M. Foods, Inc., Long Beach , California , their offi-
cers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively , in good
faith , with Marine Cooks & Stewards Union, affiliate of
the Seafarers' International Union of North America,
AFL-CIO, as the exclusive representative of all employees
in the unit herein found to be appropriate , for the purposes
of collective bargaining, with respect to rates of pay, wages,
hours of employment , and other terms and conditions of
employment.
(b) Making or effecting any changes in the wages of the
employees in said unit without first giving notice to their
collective-bargaining representatives and affording such
representatives an opportunity to bargain collectively with
respect to such change.
(c) Meeting with and bargaining directly with employ-
ees regarding their placement on the employment list, or
other terms and conditions of employment of employees in
said unit, without first giving notice to their collective-bar-
gaining representatives and affording such representatives
an opportunity to bargain collectively with respect to such
matters.
(d) Delaying to supply the Union with necessary and
relevant bargaining information.
(e) Failing and refusing to make proposals or counter-
proposals on hiring procedures and union security and fail-
ing to make a reasonable effort to compromise differences
on those matters.
(f) Distributing to employees letters or telegrams con-
veying the threat that unfair labor practice striking em-
ployees could or would be permanently replaced if they
failed to report for work as scheduled.
(g) Discouraging membership in Marine Cooks & Stew-
ards Union , affiliate of the Seafarers ' International Union
of North America , AFL-CIO, or in any other labor organi-
zation, by discharging or in any other manner discriminat-
ing against strikers in regard to hire or tenure of employ-
ment or any term or condition of employment.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of any right guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is neces-
39 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.
QUEEN MARY RESTAURANTS CORPORATION
sary to effectuate the purposes of the Act:
(a) Upon request , bargain collectively with Marine
Cooks & Stewards Union, Affiliate of the Seafarers ' Inter-
national Union of North America, AFL-CIO, as the exclu-
sive representative of all the employees in the aforesaid
appropriate unit , including providing relevant and essential
material when requested by the Union and, if an under-
standing is reached , upon request, embody such under-
standing in a signed agreement.
(b) Offer to the Respondents ' striking employees rein-
statement to their former positions or, if those positions no
longer exist, to substantially equivalent position , without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay in the manner set
forth in The Remedy section of this Decision.
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports , and all other records neces-
sary for determination of the amount of backpay due and
the rights of reinstatement under the terms of this recom-
mended Order.
(d) Post at its facilities aboard the Queen Mary, copies of
the attached notice marked "Appendix ." 40 Copies of said
notice , on forms provided by the Regional Director for
Region 21, after being signed by an authorized representa-
tive of Respondents , shall be posted by Respondents im-
mediately upon receipt thereof, and be maintained by them
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by Re-
spondents to insure that said notices are not altered, de-
faced , or covered by any other material.
(e) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and
it hereby is, dismissed insofar as it alleges unfair labor
practices not found herein.
40 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
801
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held in Los Angeles , California , on various
dates between January 23 and February 19, 1974, in which
we participated and had a chance to give evidence, resulted
in a decision that we had committed certain unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended , and this notice
is posted pursuant to that decision.
The National Labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves
To form , join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activities.
In recognition of these rights , we hereby notify our em-
ployees that:
WE WILL NOT meet and bargain directly with our em-
ployees while they are represented for collective-bar-
gaining purposes by the Marine Cooks & Stewards
Union, affiliate of the Seafarers ' International Union
of North America, AFL-CIO, or any other labor or-
ganization.
WE WILL NOT unilaterally grant general pay increases
without first notifying and consulting with our em-
ployees' collective-bargaining representative.
WE WILL NOT delay in supplying our employees' col-
lective-bargaining representative with necessary and
relevant bargaining information.
WE WILL NOT fail or refuse to make proposals or
counterproposals or reasonable efforts to compromise
differences on essential contract matters.
WE WILL NOT tell our employees that they will be
terminated or permanently replaced if they fail to re-
port to work and engage in an unfair labor practice
strike.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in Marine
Cooks & Stewards Union, affiliate of the Seafarers'
International Union of North America, AFL-CIO, or
in any other labor organization, by discriminating in
any manner against employees because they strike or
engage in any activities protected by the National La-
bor Relations Act.
WE WILL, upon request, bargain collectively in good
faith with Marine Cooks & Stewards Union, Affiliate
of the Seafarers' International Union of North Ameri-
ca, AFL-CIO, as the exclusive representative of all
employees in the appropriate unit described below
with respect to rates of pay, wages, hours of employ-
ment , and other terms and conditions of employment,
and if an agreement is reached, embody such under-
standing in a signed agreement:
All employees employed by Queen Mary Restau-
rants Corporation and Q. M. Foods, Inc., aboard
the Queen Mary, excluding office clerical employ-
ees, professional employees, guards, watchmen and
supervisors as defined in the Act.
WE WILL offer all unfair labor practice strikers im-
mediate and full reinstatement to their former posi-
tions or, if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing, if
necessary, any employees hired as their replacements;
and WE WILL make them whole for any loss of pay they
may have suffered as a result of our failure to reinstate
them within 5 days after their applications to return to
work were made.
QUEEN MARY RESTAURANTS
CORPORATION; AND Q. M. FOODS, INC.