Sambo's Restaurants, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1974

212 N.L.R.B. 788 (N.L.R.B. 1974)

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sambo's Restaurants, Inc.; and Sambo 's Riverside and
Culinary Workers , Bartenders & Hotel Service Em-
ployees Local 535
Sambo's Restaurants, Inc.; and Sambo's Indio and Cu-
linary Workers, Bartenders & Hotel Service Em-
ployees Local 535 . Cases 21-CA-11922 and
21-CA-11947
August 9, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On April 19, 1974, Administrative Law Judge Rus-
sel L. Stevens issued the attached Decision in this
proceeding. Thereafter, the Respondents filed excep-
tions and a supporting brief. -
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
The Administrative Law Judge found that the re-
cord evidence fully supports a finding that the six
Sambo's restaurants constitute a single, multistore
unit. While the record evidence, particularly the bar-
gaining history, for making such a finding is persua-
sive, we are not satisfied that such a finding is
warranted. Absent certification, the existence of a
multistore unit is based on the agreement of the par-
ties; such an agreement may be evidenced by bargain-
ing history or pattern of bargaining.
Yet, here there is evidence that the Union itself did
not, in fact, consider the six Sambo's restaurants as a
single, multistore unit. Thus, Staub, Respondent's
vice president and director of personnel, wrote Jones,
secretary-treasurer of the Union, on March 16, 1974,
informing him that the owner-manager in Indio be-
lieved the Indio employees did not prefer to be repre-
sented by the Union, and that it was his (Staub's)
intention to terminate the contract on May 15. Jones,
by letter, replied that he wished to meet with Staub to
begin negotiations covering the Indio store. Jones'
communication resulted in an April 4 meeting, at
which Jones informed Staub that he was ready to
negotiate for the Indio store. In our opinion Jones'
conduct cannot support a finding that the Union con-
sidered the six stores in question to be a single, multi-
store unit.
In addition, although of somewhat less significance,
it is also a fact that from 1971 on Respondent insisted
on six separate contracts even though the contracts
were identical. In sum, we do not believe that it has
been clearly established that a single, multistore unit
was agreed upon, or, in fact, even contemplated by
the parties, the bargaining history notwithstanding.
Therefore, we are constrained to find, contrary to the
Administrative Law Judge, that the six Sambo's res-
taurants do not constitute a single, multistore unit.
The Administrative Law Judge found in the alter-
native, however, that even assuming that each of the
six stores is a separate appropriate unit, by their fail-
ure on July 5, 1973, to sign and execute the collective-
bargaining agreement fully agreed to by Respondent
Sambo's Restaurants, Inc., acting for and on behalf of
Respondents Sambo's Riverside and Sambo's Indio,
Respondents since May 16, 1973, have violated Sec-
tion 8(a)(5) and (1) of the Act. For the reasons fully
set forth by the Administrative Law Judge we agree,
and so find.
AMENDED CONCLUSIONS OF LAW
The following are substituted for the Conclusions
of Law of the Administrative Law Judge.
1. Respondents are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. The following employees constitute units appro-
priate for purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
All employees employed at Sambo's Indio, ex-
cluding all office clerical employees, professional
employees, guards, and supervisors as defined in
the Act.
All employees employed at Sambo's Riverside,
excluding all office clerical employees, profes-
sional employees, guards, and supervisors as de-
fined in the Act.
4. The Union is the exclusive representative of the
employees in the aforesaid units for the purposes of
collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment.
5. By their failure to sign and execute the collec-
tive-bargaining agreement fully agreed to by Respon-
dent Sambo's Restaurants, Inc., acting for and on
behalf of Respondents Sambo's Riverside and
Sambo's Indio on July 5, 1973, Respondents have
212 NLRB No. 120
SAMBO'S RESTAURANTS
since May 16, 1973, and thereafter violated Section
8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions ' Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
herein, and hereby orders that Respondents Sambo's
Restaurants Inc., Santa Barbara, California, its offi-
cers, agents, successors, and assigns, and Sambo's In-
dio, Indio, California, and Sambo's Riverside,
Riverside, California, their officers, agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order, as modified below:
1. Delete paragraph 1(a) of the Administrative
Law Judge's recommended Order and substitute the
following:
"(a) Refusing to bargain collectively concerning
the rates of pay, wages, hours, and other terms and
conditions of employment with Culinary Workers,
Bartenders & Hotel Service Employees Local 535 in
the appropriate units, by failing and refusing to sign
and execute the labor agreements agreed to by the
parties on July 5, 1973."
2. Delete paragraphs 2(a) and 2(b) of the Adminis-
trative Law Judge's recommended Order and substi-
tute the following therefor:
"(a) Sign and execute the collective-bargaining
agreements for and on behalf of Sambo's Riverside
and Samba's Indio, effective May 16, 1973, as agreed
to with the Union on July 5, 1973.
"(b) Reimburse and make whole any and all em-
ployees employed at Sambo's Riverside and Sambo's
Indio who have not been compensated in the manner
proscribed in said agreements. Said employees should
receive their full wages from the effective date of the
collective-bargaining agreement, namely, May 16,
1973, together with interest at the rate of 6 percent per
annum, as set forth in Isis Plumbing & Heating Co.,
138 NLRB 716."
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER KENNEDY, concurring:
I agree with my colleagues that Respondent violat-
ed Section 8(a)(1) and (5) of the Act by withdrawing
recognition of the Union as the bargaining represen-
tative of its employees at its Riverside and Indio, Cali-
fornia, restaurants. I agree with their conclusion that
the six restaurants do not constitute a single, multires-
789
taurant unit and that the record evidence establishes
that each of the six restaurants constitutes a separate
appropriate unit.
I join my colleagues in finding a violation of the Act
because the Respondent has failed to come forth with
evidence tending to establish that its asserted doubt of
the Union's majority status was supported by objec-
tive considerations. Hearsay statements that a manag-
er had a "general feeling" that the Union no longer
represented a majority do not satisfy the objective
criteria test of United States Gypsum Company, 157
NLRB 625 (1966), or Taft Broadcasting, WDAF-TV,
AM-FM, 201 NLRB 801 (1973).
I disavow the observations of the Administrative
Law Judge with respect to "good faith doubt" since
the Agency announced to the Supreme Court that we
had "virtually abandoned" this test. See Linden Lum-
ber Divison, Summer & Co., 190 NLRB 718 at 721
(1971). Likewise, I disavow the observations of the
Administrative Law Judge with respect to the burden
of rebutting the presumption of continuing majority.
The Barrington Plaza case relied upon by the Admin-
istrative Law Judge was denied enforcement by the
Ninth Circuit Court of Appeals. Barrington Plaza and
Tragniew, Inc., 185 NLRB 962 (1970); N.L.R.B. v.
Tragniew, Inc., 470 F.2d 669 (C.A. 9,1972). The courts
of appeals continue to tell us that if an employer offers
evidence which casts serious doubt that the incum-
bent union commands the support of a majority of
employees the burden shifts to the General Counsel to
come forward with the evidence that the union in fact
did represent a majority of the employees. See The
National Cash Register Company v. N.L.R.B., 494
F.2d 189 (C.A. 8, 1974); N.L.R.B. v. The Little Rock
Downtowner, Inc., 414 F.2d 1084, 1090-91 (C.A. 8,
1969); N.L.R.B. v. Dayton Motels, Inc., d/b/a Holi-
day Inn of Dayton, 474 F.2d 328 (C.A. 6, 1973); Auto-
mated Business Systems Division, et al. v. N.L.R.B.,
497 F.2d 262 (C.A. 6, 1974); Lodges 1746 and 743,
International Association of Machinists and Aerospace
Workers, AFL-CIO [United Aircraft Corporation] v.
N.L.R.B., 416 F.2d 809, 811-812 (C.A.D.C., 1969).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had an opportunity
to present evidence and state their position, the Na-
tional Labor Relations Board has found that we have
violated the National Labor Relations Act and has
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or resist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any such ac-
tivities.
WE WILL NOT in any manner interfere with, re-
strain, or coerce our employees in the exercise of
these rights.
WE WILL sign and execute the labor agreements
agreed to between the undersigned and Culinary
Workers, Bartenders & Hotel Service Employees
Local 535, covering the period May 16, 1973,
through May 15, 1975.
WE WILL forthwith reimburse and make whole
any and all employees employed at Sambo's Riv-
erside and Sambo's Indio, who may have re-
ceived wages in an amount less than the wages
provided for in the executed agreements for the
period beginning May 16, 1973, plus interest on
backpay at the rate of 6 percent per annum.
SAMBO'S RESTAURANTS,
INC.; SAMBO'S RIVERSIDE
(Employer)
Dated By
Dated By
(Representative) (Title)
SAMBO'S RESTAURANTS,
INC., SAMBO'S INDIO
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5200.
DECISION
STATEMENT OF THE CASE
RUSSELLL. STEVENS, Administrative Law Judge: This mat-
ter was heard at Los Angeles, California, January 28 and 29,
1974. Separate charges were filed by Culinary Workers,
Bartenders & Hotel Service Employees Local 535, hereinaf-
ter referred to as Union, against Sambo's Restaurants, Inc.,
Sambo's Riverside, and Sambo's Indio t hereinafter re-
ferred to separately as Sambo's, Inc., Sambo's Riverside, or
Sambo's Indio, or collectively as Respondents. Order con-
solidating cases and consolidated complaint were issued on
first amended charges December 12, 1973.2 The consolidat-
ed complaint alleges 3 that Sambo's, Inc., Sambo's Indio,
and Sambo's Riverside violated Section 8(a)(1) and (5) of
the National Labor Relations Act, herinafter referred to as
Act, by withdrawing recognition of Union at Sambo's Riv-
erside and Sambo's Indio and by thereafter refusing to exe-
cute an agreed-upon collective-bargaining contract with
Union covering employees at Sambo's Riverside and
Sambo's Indio, and by refusing to bargain in good faith.
Issues
The principal issues are:
1. Whether all employees employed at the six Southern
California restaurants (sometimes referred to herein as
stores) designated as Sambo's Indio, Sambo's Palm Springs
North, Sambo's Palm Springs South, Sambo's Palm Desert,
Sambo's Riverside, and Sambo's San Bernardino, excluding
all office clerical employees, professional employees,
guards, and supervisors as defined in the Act, constitute an
appropriate unit for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
2. Whether, assuming that the six restaurants named
above constitute a single multistore unit, a doubt of majori-
ty could be raised on a single-restaurant basis.
3. Whether, if a single multistore unit is not found,
Sambo's Riverside and Sambo's Indio each constitutes a
single, separate appropriate unit for collective bargaining.
4. Whether, if separate appropriate units are found, there
is objective evidence sufficient to justify refusal by Respon-
dents to execute a written agreement on the basis of good-
faith doubt of a union majority at Sambo's Riverside and
Sambo's Indio.
5. Whether Respondent, having entered into an informal
8(a)(5) settelement agreement covering the Riverside store,
could properly raise a doubt of majority for a reasonable
penod of time following the execution of said settlement
agreement .4
'The name of this Respondent appears in the caption as amended at
hearing-
2 Unless otherwise stated , all dates herein are in 1973.
3 As amended at hearing , wherein the date "January 5;,1973," was changed
to "July 5,1973," in pars-8 and 9.
° Union did not file a bnef , but its argument at closing encompassed the
possibility of a multiemployer association This point was argued in his brief
by counsel for the three Respondents No evidence was adduced at hearing
in support of an existing multiemployer association. It is found that none did
exist within the penod of time involved herein
SAMBO 'S RESTAURANTS
All parties were given full opportunity to participate, to
introduce relevant evidence , to examine and cross-examine
witnesses , and to argue orally. Briefs, which have been care-
fully considered, were filed on behalf of the General Coun-
sel and all Respondents.
Upon the entire record , and from my observation of the
witnesses and their demeanor , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
At all times material herein , Respondent Sambo's, Inc.,
has been , and is now, a corporation engaged in the business
of operating restaurants throughout the United States, in-
cluding Sambo's Indio at Indio , California , and Sambo's
Riverside at Riverside , California, each of which is operated
pursuant , to a general partnership agreement between
Sambo's, Inc., and the respective managers of each of the
aforesaid restaurants.
In the normal course and conduct of said business opera-
tions, Respondents , and each of them , annually derive gross
revenues in excess of $500 ,000 and receive goods, supplies,
and materials valued in excess of $50 ,000 directly from
suppliers located outside the State of California or directly
from suppliers located within the State of California who,
in turn , receive those same goods , supplies, and materials
directly from outside the State of California.
II THE LABOR ORGANIZATION INVOLVED
Culinary Workers, Bartenders &, Hotel Service Employ-
ees Local 535 is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
Sambo's, Inc., has interests , financial or consulting or
both, in approximately 350 restaurants throughout the
country. Although its interests in restaurants bearing its
name are varied, a common arrangement is one whereby an
individual restaurant is owned by Sambo's, Inc., with a
50-percent interest ; an owner-manager with a 20-percent
interest ; and other investors (usually including persons also
interested in other Sambo's restaurants) with a total of 30
percent interest.
All restaurants are operated in similar manner. Sambo's,
Inc., provides services for each restaurant , for a fee of 1.6
percent of gross sales or a maximum of $500 per month.
Included among such services are training, professional ad-
vice, advertising, accounting , and others . Each restaurant is
a separate venture, and owner-managers are responsible for
day-to-day operations , including establishment of sched-
ules, hiring, firing, purchasing of food and other items, su-
pervision of employees, and setting of wages.
The usual pattern of ownership and operations outlined
above prevails at the six stores involved herein . Ownership
of the six is as follows: (1) Riverside: Sambo's, Inc., 50
percent ; owner-manager 20 percent; investors 30 percent.
791
(2) San Bernardino: Sambo's, Inc., 55 percent; owner-man-
ager 15 percent ; investors 30 percent. (3) South Palm
Springs: Sambo's, Inc., no interest ; owner-manager 15 per-
cent ; investors 85 percent . (Sambo's provides usual serv-
ices.) (4) Palm Desert: Sambo's, Inc., 55 percent;
owner-manager and investors 45 percent. (5) North Palm
Springs: Sambo's, Inc., 50 percent; owner-manager and in-
vestors 50 percent . (6) Indio: Sambo's, Inc., 50 percent;
owner-manager 20 percent ; investors 30 percent.
Sambo's, Inc. 's services include assistance to individual
restaurants in their labor relations . Harold Staub, vice presi-
dent and director of personnel for Sambo 's, Inc., hereinafter
referred to as Staub , in the past was appointed by owner-
managers of the six restaurants listed above as their agent
to conduct negotiations with the Union . Owner-managers
delegated all negotiation functions to Staub , and none of
them has participated in any labor negotiations. After
agreements have been reached with the Union, Staub first
has advised owner-managers of the agreement and then
(absent objection , none of which was ever voiced), signed
contracts , for each of the six. Staub has conducted all labor
negotiations for the six restaurants from 1971 to.date. How-
ever, Mr. Ed Gund, hereinafter referred to as Gund, was
hired on a temporary basis to assist in the 1971 negotiations.
The Union first began representing employees of
Sambo's Palm Springs North restaurant in 1960, when a
5-year agreement was executed on February 4 of that year.
The agreement was effective for 5 years, and expired Febru-
ary 15, 1965. On April 1, 1963, the Union signed a collec-
tive-bargaining agreement similar to the Palm Springs
North agreement with Sambo's Palm Springs , South restau-
rant . That agreement also was for 5 years, and expired
March 15, 1968 . On February 15, 1965, the Union , for the
first time , entered into an agreement covering employees at
Sambo's Indio, Sambo's Palm Springs North, and Sambo's
Palm Springs South , and at the same time that agreement
was executed the Union executed a similar agreement with
Sambo's San Bernardino . On June 1, 1966, the Union, for
the first time , entered into an agreement with Sambo's Riv-
erside . That agreement was similar to the collective-bar-
gaining agreement signed by, the J3nion in 1965 for Palm
Springs North, Palm Springs South, Indio , and San Bernar-
dino restaurants . On November 1, 1966, the Union entered
into a collective-bargaining agreement covering employees
at the Sambo 's Palm Desert restaurant.
In 1970 the collective-bargaining agreements covering
Sambo's Palm Springs North, Palm Springs South, Palm
Desert, Indio, Riverside , and San Bernardino automatically
renewed themselves according to the provisions of those
contracts, inasmuch as none of the parties decided to termi-
nate the agreements . On January 27, 1971, Staub sent Tom
Jones, secretary-treasurer of the Union, hereinafter referred
to as Jones, a letter wherein Staub advised Jones that Re-
spondent Sambo's, Inc., was terminating its existing collec-
tive-bargaining agreements with Local 535 covering the six
restaurants at Palm Springs North, Palm Springs South,
Palm Desert, Indio, Riverside , and San Bernardino. Staub
further advised Jones that he was prepared to meet with him
to negotiate new collective -bargaining agreements . Thereaf-
ter, Jones and Staub agreed to extend the contracts for 1
month before negotiating for new agreements . Subsequent
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the extension of the contracts in 1971 , Tom Jones, John
Bajusz (president of the Union), and Gund met in Los An-
geles at Gund's office on two separate occasions in April or
May of 1971 . Gund was the only representative for Respon-
dents at those two negotiating sessions ; no owner-managers
were present . Separate contracts were signed for each indi-
vidual restaurant involved in the negotiations . The only
difference in the various contracts was that the metropolitan
restaurants , San Bernardino and Riverside , had 40-hour
workweeks whereas the desert restaurants , Indio, Palm 'De-
sert, Palm Springs North , and Palm Springs South, had
48-hour workweeks . Other than those differences , the con-
tracts were identical . The collective-bargaining agreements
for the six stores involved in the 1971 negotiations were
signed for the Union by Tom Jones and for Sambo 's, Inc.,
and the restaurants by Staub on March 15, 1971.
On April 14 , 1972, Jones sent a letter to Staub advising
him that, pursuant to article XX of the collective-bargaining
agreements , he was serving notice that the Union had decid-
ed to revise or modify the collective-bargaining agreements
at the six Sambo's restaurants named above. Thereafter,
Jones and Bajusz met on two or three different occasions
with Staub at Staub 's Santa Barbara, California, office to
negotiate new collective -bargaining agreements covering
the six . At none of the meetings was any owner-manager
present . Like the 1971 agreements , the 1972 agreements
were for a period of 1 year.
B. The Controversy
Evidence not in controversy shows that on March 16,
1973, Staub sent Jones a letter informing him that Sambo's
owner-manager in Indio believed the employees in his store
did not prefer to`be represented by the Union and that it was
his intention to terminate the contract on May 15. He stated
that he would meet with Jones at a "convenient time and
place regarding the collective -bargaining agreement ." Jones
sent Staub a letter on March 21 , informing Staub that he
wished to meet with Staub within the next 7 days to begin
negotiations covering Sambo's Indio. Following Jones' let-
ter to Staub , a meeting was set for April 4 at the Riverside
restaurant . On that date Jones, Bajusz , and Staub met at
Riverside.
Following the April 4 meeting , Jones sent Staub a letter
informing him that he was opening negotiations on Sambo's
Indio , Palm Springs North, Palm Springs South , Palm De-
sert, Riverside , and San Bernardino , and that he would be
forwarding to Staub the Union 's proposals in a few days. On
April 19 Jones forwarded to Staub proposals for the six
locations . One proposal was for the metropolitan area and
another for the desert area, but both proposals were indenti-
cal except for the difference in workweeks (40 hours v. 48
hours).
Subsequent to Jones' April 19 letter to Staub , Staub con-
tacted Bajusz and set up a meeting for May 3 at Staub's
Santa Barbara office . However, the meeting later was
changed to Sambo's Inglewood , where on May 3 Staub met
with Bajusz to discuss the new collective-bargaining agree-
ments. No one else was present at the meeting . Staub and
Bajusz went over the proposals that Jones sent to Staub.
Following the May 3 meeting , Bajusz sent Staub a letter on
May 10 with which he enclosed a revised contract incorpo-
rating changes that had been made at the May 3 meeting.
Bajusz did not send Staub six separate contracts , but only
one contract with six separate first pages. After receiving the
revised contract from Bajusz , Staub contacted Bajusz and
set up another meeting for June 8 at Staub 's Santa Barbara
office . Staub and Bajusz , who were the only persons present
at the meeting , discussed the revised contract that Bajusz
had sent Staub , and made some changes. Bajusz told Staub
at the end of this meeting that he would submit to Staub a
new proposal incorporating the changes they had made. On
June 14 Bajusz sent Staub a letter enclosing one agreement
covering Sambo's Riverside and San Bernardino, and an-
other agreement covering Palm Springs North, Palm
Springs South , Palm Desert , and Indio . Bajusz noted in his
letter that the only difference between the two contracts was
that there was a 40-hour week for the metropolitan ' restau-
rants and a 48-hour week for the desert restaurants, and he
asked Staub to go over the agreements and let him know if
they met with his approval . On June 25 Staub contacted
Bajusz' office and left a message with Bajusz ' secretary con-
cerning some more changes in the contract . Bajusz returned
Staub 's call on June 26. However , Staub was not in and
Bajusz was told that Staub would be gone the entire week.
On July 2 Bajusz called Staub and told him that the changes
Staub wanted were acceptable to him.
On July 5 Bajusz met with Staub at Staub 's Santa Barbara
office at approximately 10:45'a.m . No one else was present
at the meeting . Staub told Bajusz he would sign the con-
tracts for Palm Desert , Palm Springs South, Palm Springs
North, and San Bernardino, but that he would not be able
to sign for Riverside and Indio . Staub then signed the San
Bernardino , Palm Desert , Palm Springs South , and Palm
Springs North contracts.
Staub stated that he refused to sign for Riverside and
Indio because of a good -faith doubt that the Union repre-
sented a majority of the employees at those locations. Gen-
eral Counsel and the Union contend that Staub refused to
sign the two contracts because of his desire to have non-
union restaurants at the two locations.
C. Pertinent Testimony
Jones testified to the history of relationship between the
Union and the six restaurants . He stated that contracts for
all six locations first were negotiated simultaneously in
1971, following Staub 's letter to Jones dated January 27,
1971, wherein Staub advised Jones of his intention to termi-
nate all six, and his desire to negotiate . Jones testified that
negotiation sessions were attended by himself, Bajusz, and
Gund in 1971 . Gund was acting as temporary replacement
for Staub, who was busy elsewhere. Jones stated that indi-
vidual restaurants were not mentioned during negotiations,
that negotiations were for all six locations at the same time,
that Gund wanted "a standard-all of the contracts to be
exactly the same," and that six separate contracts were
signed because "Mr. Gund said it had something to do with
the way he was paid by Sambo's."
Jones testified that the 1972 negotiations were conducted
by himself, Bajusz, and Staub . He said the three of them
"negotiated for all the stores at the same time," with none
SAMBO'S RESTAURANTS 793
of the stores mentioned individually during the negotia-
tions. He stated that six separate contracts were signed be-;
cause that "was Mr. Staub's desire. And it is something that,
we had done the year before, so we just just a matter of
formality."
Jones testified that the first negotation meeting relative to
the 1973 contracts was held April 4, 1973, attended by him-
self, Bajusz, and Staub. He said the three first discussed
trust funds and medical payments, after which Jones stated
that he felt there was a conspiracy to embarrass or eliminate
the Union, and that the managers were not cooperating with
the Union. Jones said he described specific union com-
plaints, and Staub replied that the problems were due to
individual store managers, but that problems would be cor-
rected and contracts honored. Jones testified:
And then I told Mr. Staub that I would negotiate on
the Indio store and then I handed him a copy of the
contract that I was proposing and he said, "No," that
we would negotiate the contracts all at the same time
for all the stores, and that if I didn't open the contracts,
Sambo's wouldn't open the contracts.
Jones testified that he then told Staub the Union would
"most certainly open the contracts" to negotiate wages and
other matters.
Jones then testified:
stores and one covering the lower desert stores," be-
cause they were all identical.
And he said, "No," that he would prefer to-that we
identify each store by the contract because they had
various managers, and the managers come and go quite
a bit.
And so I agreed to prepare-at each store have it
identified on the contract.
Jones testified on several occasions that he wanted'a single
contract, and in addition to his testimony on direct exami-
nation that the reason was the "voluminous amount of
work" " he testified on cross-examination "If it was a sepa-
rate contract for each individual store, no, I wouldn't agree
to it. As a matter of convenience, yes, I would."
Jones testified on cross-examination that he never met
with Staub on the 1973 contract, after April 4th.
Bajusz testified on direct examination that he partici-
pated in the 1971 negotiations with Jones and Gund, and
that: We started out negotiating as a unit and Mr. Ed Gund
said we would have to negotiate into a separate unit because
of some factor of his agreement with Sambo's and a matter
of pay and so forth. Bajusz testified that the six contracts
were negotiated in 1971 "as a unit," and that individual
stores were not mentioned during the negotiations. He said
the same procedure was followed in the 1972 negotiations.
Bajusz testified that he participated in the 1973 negotia-
tions with Jones and Staub, and that, after discussing gener-
al union matters and complaints:
Then I asked Mr. Staub, "Would you-" that I had pre-
pared-I had come prepared to negotiate for Indio. And he
said, "No," that he would just forget that. Well, I reminded
him that he had sent me an opening letter and he said, "You
can just forget that. We will negotiate the contracts all at the
same time."
And then he reminded me that if I was going to open, to
make sure that I get my letters in timely. And I assured him
that I would.
JUDGE. Mr. Jones, how did it happen that you were prepared
at th at time to offer a single contract on behalf of Indio?
THE WITNESS Because we have an area standard contract
made up that we usually start negotiations from. And we
just finished with the Employer's counsel and we used that
as the guidelines to establish the negotiations for our inde-
pendent contract. -
JUDGE But were you prepared at that time to negotiate indi-
vidually for Indio?
THE WITNESS: At that particular time?
JUDGE. Yes.
THE WITNESS. Yes. Because he had opened the contracts.
Jones further testified:
I asked Mr. Staub if we could make one contract for
all of the stores because it created such a voluminous
amount of work. And he said, "No," that we had the
48-hour work week in Palm Springs and had the 40-
hour work week in San Bernardino-Riverside.
And then I asked him, "Well, could we limit it to two
contracts, one covering San Bernardino-Riverside
And do you recall anything else that occurred at that
meeting?
A. After the discussing Mr. Staub said that he didn't
intend to open the contracts if we didn't. And Mr.
Jones stated that he would have to open the contracts
because there was a situation of increased wages and
health and welfare benefits.
Mr. Staub then related that if he did so, to do it at
a timely time and manner.
Q. All right.
And do you recall anything else that was said at that
meeting?
A. Yes.
Mr. Jones on two other occasions said that he was
there and ready to negotiate on the Indio store. But at
that time as long as the contracts were going to be
opened Mr. Staub said to disregard the notice on the
Indio store and open up all the contracts.
And do you recall if Mr. Jones handed Mr. Staub a
proposal?
A. Yes, I do.
Q. He did or he didn't?
A. He did.
Q. And did Mr. Staub have any response to that
after he handed him the proposal?
A. The only response was that as long as he was
going to open up the contracts in all the stores he could
submit a proposal at that time; which was the same
proposal.
JUDGE Whose statement is this?
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE WITNESS: Mr. Staub's.
JUDGE Mr. Staub said that?
THE WITNESS. Yes.
JUDGE Thank you.
Q. (By Mr. Fischbach) I sort of misunderstood you.
He handed Mr. Staub-Mr. Jones handed Mr. Staub
a proposal?
A. A proposal, yes.
Q. And he said he was going to give him another
proposal after that?
A. No, that was the same proposal. That was a pro-
posal that he handed him, and it was for the Indio
store.
Q. Yes.
A. And then being that the contracts were going to
be opened on all the stores he would submit the same
proposal for all the stores later on.
Q. "He," being Mr. Jones?
A. Yes.
Q. All right.
Bajusz testified that he and Staub discussed the Union's
proposal for 1973 at a meeting on May 3, and that the
restaurants were discussed "as a unit. Each store was men-
tioned as a unit." He also testified that he submitted to
Staub on May 10, as -a result of, changes made May 5, a
proposal that had six front pages, one for each restaurant,
and one "actual proposal" that was complete and would be
appended, after final preparations, to each front page.
Bajusz testified that he and Staub met June 8 to discuss
further changes in the 1973 proposal, and that individual
stores were not mentioned. He said he talked with Staub
thereafter, on July 2, and that Staub asked him to draw up
six different contracts, with changes as agreed upon. Bajusz
said that, during the conversation, "I mentioned to him that
we had received an R.M. Petition on the Riverside store. He
said that he didn't know anything about it and that he
would contact his attorney and call me back."
Bajusz also testified:
Q. And what did Mr . Staub say when you told him
that?
A. He said he didn 't know anything about it. He
said he was away the previous week and that he would
contact his attorney and point out what it was all about
and would call me back.
Q. And was this the first time you knew that an
R.M. Petition was going to be filed as to the Riverside
store?
A. Yes. I didn't know it until Friday when we re-
ceived notice.
Q. And was this the first time that you knew there
was any problem as to the Riverside store?
A. It never had been mentioned.
sign that one at that time because of the pending RM peti-
tion. He said he also would have to wait on the Indio con-
tract because he had heard from his attorney's secretary that
an RM petition possibly was filed on that restaurant, also.
Bajusz stated, "He did say to me that if I would sign those
contracts on Indio and the Riverside store, at a time when
he knew it was taking place, if he was able to, he would sign
the contract and return them to me immediately'to save
time." 5
Bajusz testified that he called Staub July 17th, and:
A. He said that an R.M. had been filed on both
those stores and he would not at that time be able to
sign them until they were cleared up.
A. Well-and the reason he gave for the R.M.s, was
that he said the managers said that they did not believe
that the people wanted-the employees did not want
the union representation.
Bajusz stated that he first heard July 5th that there was
a problem (RM petition) in the Indio location. He said he
first heard about the Riverside problem (RM petition) June
28th.
Bajusz testified on cross-examination that he did not dis-
cuss the Indio restaurant with Staub between April 4 and
July 5. He also testified that nothing was said in the April
4 meeting with Staub, concerning doubt about majority
status in the Riverside restaurant.
Staub testified that, prior to the meeting with Jones and
Bajusz of April 4, he had heard there had been a UD peti-
tion filed by employees of the Riverside restaurant. He said
he told Jones on April 4 that he felt "very strongly" that
Local 535 no longer represented employees at the Indio
restaurant. Staub denied that 'he received a proposed con-
tract April 4-he said he first received the proposal May 12
or thereabouts. He denied telling Jones that Jones could
forget about Staub's letter of March 16 concerning Indio.
Staub testified that a dispute had been going on for some
time prior to April 4, concerning enforcement of union-
security provisions of the contract at Riverside. He said
there was correspondence between the Union and the Riv-
erside restaurant manager, and meetings, about the dispute.
Staub stated that the parties discussed the "Indio situa-
tion" April 4, and that they closed the meeting by "agreeing
to get together and negotiating on the other four stores."
Staub testified concerning the meeting of April 4:
A. At that time, why, I did point out to him that I felt
very strongly after having consulted with their owner-
manager that our employees at Indio did not wish to
be represented by Local 535.
Bajusz testified that he delivered the final copies of the
proposed contracts to Staub July 5th, and that Staub said
he was ready to sign, except for Riverside, and he would not
5 It was stipulated by counsel at hearing that all six contracts are identical,
except that those for San Bernardino and Riverside are for 40-hour weeks,
and the other four are for 48-hour weeks
SAMBO 'S RESTAURANTS
JUDGE: Mr. Staub, upon what do you base your com-
munication to Mr. Jones that you felt as though the
Local 535 no longer represented the employees at In-
dio?
THE WITNESS This was based on a telephone call that
I received from our manager.
JUDGE: From your Indio Manager?
THE WITNESS: Yes, Sir.
I, in turn-this was prior to my letter and I, in turn,
did talk to our district man in the field. He, in turn, did
consult with our owner-manager. And, in turn, did call
me back with the same strong feeling.
JUDGE: Well, did-were you told the specific item or
was it just a general feeling?
THE WITNESS It was just a general feeling from the
manager, that he had-he had heard expressed a num-
ber of times by various employees in the restaurant.
Staub testified that, prior to receiving a copy of the UD
petition filed by Riverside employees, he received a letter
from one of the employees. (Darlene Bue. Resp. Exh. 2. The
reply is Resp. Exh. 3.)
Staub testified that he met with Bajusz June 1, and that,
during negotiations, he told Bajusz, "I had no reason to
believe differently regarding both Indio and Riverside" so
far as Local 535 was concerned.
Staub testified on cross-examination:
JUDGE Well, so we will be clear on this, Mr. Staub,
what is your present testimony, that during this meet-
ing of April 4th, 1973 you did or did not say that you
would not negotiate on Riverside and Indio?
THE WITNESS . No, I didn't say that I would not negoti-
ate on Indio and Riverside; but I did say that if at some
future date during negotiations if I felt I had reason to
believe that the opinion of those two-of the employ-
ees in those two restaurants had changed drastically
that I would certainly reconsider.
On the subject of separate contracts for the six locations,
Staub testified:
Q. There has been testimony to the effect that sepa-
rate contracts were negotiated because of-according
to Mr. Gund-something having to do with pay?
A. Yes.
Q. Do you recall that testimony?
A. Yes, I do.
Do you agree with that testimony or do you dis-
agree with that testimony?
A. I disagree with it, sir.
Q. (By Judge) You say 1971 is the first time you
beard discussions of separate contract?
A. Yes. 1971 is when we discussed the separate con-
tract.
Q. Why was it discussed?
A. Primarily because that is really-
795
Q. Well, who raised the question?
A. I did.
Q. You raised the question?
A. Yes.
Q. You asked that they be separate?
A. Yes, indeed.
Q. And why did you ask this?
A. Because each of those restaurants is a separate
entity.
Q. And what" was the reply, if any?
A. Mr. Jones agreed to that.
Q. Did he say anything except that he agreed to it?
A. I don't recall that there was any major objection
to it.
Analysis and Conclusions
Single Multistore Unit
Facts essential to decide this issue are not disputed.
Sambo's, Inc., has a 50-percent ownership in some of the six
restaurants involved herein, 55 percent in some, and no
ownership interest in one. All six use the name "Sambo's";
all six regularly retain Sambo's, Inc.'s counselling and other
services for a fee. Owner-managers and other investors hold
the remaining interest in all restaurants, and all six restau-
rants are owned separately; that is, individual owner-man-
agers and other investors do not hold interest in more than
one restaurant, except possibly to an insignificant degree
not clearly shown at hearing.
The six restaurants are independent of each other in all
respects; they do not constitute an association, nor do they
have a regular or formal interchange of management, em-
ployees, or information. Each of the six is a separate busi-
ness entity, although all operate in similar manner.
Until 1971, all six restaurants executed separate and indi-
vidual contracts with the Union; the contracts were for
different periods of time, since union representation of each
of the six commenced at different times. Since 1970, all six
have bargained solely with the Union (Local 535). Con-
tracts of all six have always been bf similar nature. Not all
Sambo's restaurants within the geographic area represented
by the six are covered by contracts with the Union, although
this subject was not fully developed at the hearing.
In 1971, 1972, and 1973 Staub,6 acting for Samba's, Inc.,
and individually for each of the six restaurants, negotiated
contracts with union representatives. Negotiations were
conducted simultaneously for all six,, individual negotia-
tions were never conducted, and contracts for all six were
identical.' However, contracts were signed and executed on
an individual basis for each of the six.
General Counsel relies upon the bargaining history of the
parties to support his theory of a multistore unit.
Respondents contend, among other things, that a multi-
store unit was not intended by the parties; that
Respondent's organizational structure and individual res-
taurant legal status militate against a multistore unit; that
6 Replaced by Gund on a temporary basis during some of the 1971 negotia-
tions
7 With the single exception of workweek, explained hereinabove
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contracts themselves differentiate between metropolitan
and desert areas (workweek); that there is no community of
interest among employees of the six restaurants ; and that
the "accretion clause" of all contracts was negotiated out in
1971 and has never been placed back in the contracts.
The basic presumption of single store appropriateness
applicable herein , as stated in briefs submitted by both
parties, is clear. Although the organization involved in this
case is not a "chain" in the sense that there is a single owner
with several store locations, the principle applied in a
"chain" situation such as that in Haag Drug Company, In-
corporated, 169 NLRB 877, is applicable. The Board stated
in thatcase: "Our experience has led us to conclude that a
single store in a retail chain, like single locations in multilo-
cation enterprises in other industries , is presumptively an
appropriate unit for bargaining .-In cases subsequent to Sav-
On Drugs, we have consistently found such units appropri-
ate unless countervailing factors were present."
General Counsel readily concurs with the presumption.
However , he contends that the bargaining history of the
parties rebut&'that presumption.
Importance of bargaining history has been recognized in
countless cases involving appropriateness of units. It was
recognized in the Haag case, relied on by Respondents,
where the Board stated : "Absent a bargaining history in a
more comprehensive unit of functional integration of a suffi-
cient degree to obliterate separate identity, the employees'
"fullest freedom" is maximized , we believe, by treating the
employees in a single store or restaurant of a retail chain
operation as normally constituting an appropriate unit for
collective-bargaining purposes." (Emphasis supplied.)
The question, then, is whether bargaining history alone
controls herein , since other factors such as those relied on
by Respondent must be considered.
Although the Union has not bargained with Sambo's,
Inc., for all six restaurants since the first contract in 1960,
it has bargained for all the restaurants as the size of the
group represented by the Union gradually expanded. The
Union has exclusively bargained for all six since the group
grew to that size in 1970. Thus, the bargaining history of the
Union, the six, and Sambo's, Inc., extends over 4 years, and
the bargaining history of the Union , some restaurants in-
cluded within the six, and Sambo's, Inc ., extends over 14
years. The time involved thus is beyond question in de-
termining the history of bargaining herein . The Board has
held 22 months as being "substantial , if not controlling," 8
and the Board has even dismissed a petition on the ground
that a bargaining history of 15 months on a broader basis
rendered a narrower requested unit inappropriate.' The past
4 years have established a familar and immediately recog-
nizable pattern among the participants herein.
Actions of the participants leave no doubt about the na-
ture of the bargaining . There has been no formal certifica-
tion of a unit, but Local 535 has been the exclusive
bargaining representative of all six restaurants since 1970,
and of all the components thereof since 1960 . Further,
Sambo's, Inc., has been the exclusive management represen-
tative of all six in the same manner . At no time has any
'Buckeye Village Market, Inc., 175 NLRB 271.
9 Gould-National Batteries, Inc, 150 NLRB 418.
owner-manager negotiated for, or signed , a contract with
Local 535. In fact, so far as the record shows, no owner-
manager has ever been present at any negotiations. Staub
testified that owner-managers participated in the process
only to the extent of being informed by Staub , over the
telephone , after agreements were reached . He said that in no
instance has there been any objection by an owner-manag-
er. Clearly, owner-managers looked to Staub and, earlier, to
other representatives of Sambo's , Inc., for the conduct of
every step of negotiations , including the signing of con-
tracts. The record shows no instance wherein Staub checked
with owner-managers about any detail , or got their advance
or subsequent approval of any item of discussion with the
Union.
When Staub and his predecessors negotiated , they did so
as representatives of'an entire group . At no time has any
individual restaurant been considered separately so far as
the content of contracts is concerned . All contracts have
been identical after each signing, with the two unimportant
details of workweeks and caption pages mentioned above.
Respondents contend that the signature of separate con-
tracts shows that a multistore unit did not exist . However,
there is more in the record than just the existence of separate
contracts . First, the six contracts were treated at every step
of negotiations as a single document. Only one actual con-
tract resulted from negotiations , but it had cover sheets for
each restaurant. Second , even the contracts of Indio and
Riverside are indentical to the other four; they were negoti-
ated and signed by Local 535---only the signature of Staub
remains, and even that is not because of disagreement over
terms. All terms are fully agreed on. Finally, Jones testified
that he asked for a single contract or, at most , two contracts
(to account for the 40- and 48-hour workweeks ), but that
Staub said he wanted separate contracts . The reason given
by Staub had nothing to do with unit considerations. Jones
also testified that he stated to Gund in 1971 that he wanted
a single contract , and that Gund said he wanted separate
contracts , again for a reason that had nothing to do with
unit considerations . Bajusz corroborated Jones' testimony
and their testimony is credited. Staub's testimony on the
subject is not helpful . He stated that the reason for separate
contracts was "because each of those restaurants is a sepa-
rate entity." That statement is not disputed-it is obvious
that each is a separate entity. However, the question herein
concerns a unit, not entities . There is nothing in the testimo-
ny of Jones, Bajusz, or Staub to show that the six restaurants
were treated in any way other than as a single unit for
negotiation purposes.
The record herein fully supports a bargaining history of
a single , multistore unit, and it is so found.
It is further found that Staub and Bajusz, acting re-
spectively for respondents and the Union , reached complete
agreement on a collective-bargaining agreement for the
multistore unit, July 5, 1973.
It is further found that said agreement was separated into
six separate documents , all identical 10 but having individu-
al cover sheets for the six restaurants.
Finally, it is found that Respondent Sambo's, Inc., as
10 Except for distinction between the metropolitan stores of Riverside and
San Bernardino and the four desert stores , and so far as workweeks of 40
and 48 hours , respectively are concerned
SAMBO'S RESTAURANTS 797
agent for Respondents Sambo's Riverside and Sambo's In-
dio, refused to sign and execute said multistore agreement,
by refusing to sign and execute documents for Sambo's
Riverside and Sambo 's Indio after signing all remaining
four documents for the remaining four restaurants.
Respondents argue that several factors in this case should
override the presumption discussed in Haag, and they refer
to such things as independence of owner -managers, geo-
graphic separation of restaurants , separate ownership of
restaurants, absence of employee interchange , and absence
of community of interest among employees of the six restau-
rants. It is true that such factors are important , and they are
regularly considered by the Board in determining an appro-
priate unit. However , the unit here involved was established
by the parties long ago, and has been consistently recog-
nized in their bargaining . If the bargaining pattern of the
parties herein is to be changed , this case is not the vehicle
to achieve that change.
Respondents cited Imperial Outdoor Advertising, Inc., 192
NLRB 1248, as stating "Bargaining as a group for conve-
nience only is not inconsistent with an intent to bargain on
an individual basis only." That case is not authority for the
proposition advanced by Respondents in support of Staub's
testimony . The various employers in the Imperial case actu-
ally appeared, and bargained as a group . They stated that
they would sign individual contracts . Such is not the case
here. Only Staub appeared and negotiated , and the result
was, for practical purposes , a single contract with individual
cover sheets.
Testimony concerning the "accretion clause" referred to
by Respondents was too vague and uncertain to support the
conclusion that is was negotiated out of the contract to
establish the fact that the six restaurants intended thereby
to form individual restaurant bargaining units.
It is found that the six restaurants , Sambo's Riverside,
Indio, San Bernardino, Palm Springs North, Palm Springs
South, and Palm Desert constitute a single multistore unit.
Riverside Withdrawal
General Counsel contends that Respondent Sambo's Riv-
erside violated Section 8(a)(5) of the Act by refusing to
bargain for a reasonable time after an informal settlement
agreement of April 23, prior to the RM petition filing of
June 27, 1973.
General Counsel 's position is correct , and it is found that
a reasonable time did not elapse prior to the filing of the
RM petition . However, in view of the findings of the section
next following, it is not necessary to enter an order on this
violation.
Indio and Riverside Withdrawal
It was found , above , that the six restaurants constitute a
single multistore unit. Refusal to bargain could not, there-
fore , be based on only one or two restaurants . Gem Interna-
tional, Inc., 202 NLRB 518.
However, even assuming, arguendo, that each of the six
separately is an appropriate unit , there remains a question
as to whether the refusal to bargain concerning Indio and
Riverside was based on good -faith doubt of the Union's
majority at those locations.
The law has been long and well settled , that a presump-
tion of majority union status continues after expiration of
a contract . Barrington Plaza and Tragniew, Inc., 185 NLRB
962.
The presumption is rebuttable, however, by "clear and
convincing proof." Ref-Chem Company and El Paso Prod-
ucts Co., 169 NLRB 376.
The burden of rebutting the presumption "rests, of
course, on the Party who would do so." Barrington Plaza,
supra.
Good faith doubt is not, by itself, sufficient to overcome
the presumption . The assertion of doubt must be "support-
ed by a showing of objective considerations providing rea-
sonable grounds for a belief that a majority of the
employees no longer desire union representation." Nu-
Southern Dyeing & Finishing, Inc., 179 NLRB 573, and cases
cited therein.
The foregoing principles apply whether the union is
Board certified, or is recognized as the bargaining agent of
the employees by the employer without Board certification.
Emerson Manufacturing Company,, Inc., 200 NLRB 148.
Staub testified that he based his doubt of union majority
at Indio primarily upon conversations with the owner-man-
ager. Neither the owner-manager nor any other supporting
witness testified for Respondents . Staub also testified that
he asked his district manager to study the situation at Indio,
and that the district manager verified the owner -manager's
statements of doubt concerning union majority . Not only is
such testimony remote hearsay and entitled to no weight
under the circumstances ; there was no competent and pro-
bative evidence to establish that any employee at Indio was
opposed to union representation.
Respondents also attempted to show a high rate of em-
ployee turnover at Indio, in an attempt . to cast doubt on the
Union's majority. That testimony was vague , inconclusive,
and of no value in resolving this controversy. More impor-
tant, new employees are presumed to support a union in the
same ratio as those whom they have replaced. Laystrom
Manufacturing Company, 151 NLRB 1482.
Finally, Respondents attached weight to the filing of an
RM petition at Indio. That act is of no probative value
herein . United States Gypsum Company, 157 NLRB 652.
In summary, Respondents introduced no testimony or
evidence of competent and probative value in support of
their assertion that refusal to bargain at Indio was justified.
It is found that said refusal was not in good faith, based on
objective evidence.
Staub testified that he also based his doubt of union
majority at Riverside primarily on conversations with the
owner-manager, but also on statements of the district man-
agers, and (impliedly) the filing of the RM petition. Those
matters are discussed above. They are of no probative value
so far as Riverside is concerned.
Staub testified tht he received a letter from one Riverside
employee opposing the Union (Resp. Exh. 2), and that the
employee filed a UD petition January 26, 1973. 11 A reading
of the letter shows that it was written solely by, for, and on
11 The petition was withdrawn January 4, 1974.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the initiative of the writer thereof. There is no indication or
claim by the writer that she espoused the cause of any
person other than herself. She did not want to join the
Union, and stated, among other things, "as far as any of the
other employee's here, I could leave them to believe I am
a member and have always been and no one would know
the difference." The UD petition does not raise a represen-
tation question and it does not show that the Union does not
have majority support. Even if it is assumed that Staub may
have had some concern about the Union's majority status
after he learned of the UD petition, that concern was not
sufficiently strong to occasion on his part, affirmative ac-
tion of an effective nature to verify union status.
Finally, Respondents apparently contend that failure of
some employees to maintain union membership, and exis-
tence of some disputes concerning union-security provi-
sions of the existing contract, justified Staub's doubt of a
union majority. Those facts were but lightly touched upon
at hearing, and are of no more than incidental interest. They
are of no more probative value than the UD petition, and
the answer is much the same: only a few employees were
involved in those matters, and no question of representation
was raised.
In summary, Respondents introduced no testimony or
evidence of competent and probative value in support of
their assertion that refusal to bargain at Riverside was justi-
fied. It is found that said refusal was not in good faith, based
on objective evidence.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic and commerce
among the several States and tend to lead to labor disputes.
Upon the basis of the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondents, and each of them, is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
All employees employed at the'six Southern California
restaurants designated as Sambo's ' Indio, Sambo's
Palm Springs North, Sambo's Palm Springs South,
Sambo's Palm Desert, Sambo's Riverside, and Sambo's
San Bernardino; excluding all office clerical employ-
ees, professional employees, guards, and supervisors as
defined in the Act.
4. The Union is the exclusive representative of the em-
ployees in the aforesaid unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
5. By its failure to sign and execute the collective-bar-
gaining agreement fully agreed to by Respondent Sambo's
Restaurants, Inc., acting for and on behalf of Respondents
Sambo's Riverside and Sambo's Indio on July 5, 1973, Re-
spondents have since May 16, 1973, and thereafter been in
violation of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices in violation of Section 8(a)(5) and (1) of the
Act, I shall recommend that they be ordered to cease and
desist therefrom and to take certain affirmative action des-
ignated to effectuate the purposes of the Act.
Upon the basis of the entire record, the findings of fact
and conclusions of law , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 12
ORDER
Respondents, their officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning the rates
of pay, wages, hours, and other terms and conditions of
employment with Culinary Workers, Bartenders & Hotel
Service Employees Local 535, in the appropriate bargaining
unit, by failing and refusing to sign and execute the labor
agreement agreed to by the parties on July 5, 1973.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action, which is neces-
sary in order to effectuate the policies of the Act:
(a) Sign and execute the collective-bargaining agreement
for and on behalf of Sambo's Riverside and Samba's Indio,
effective May 16, 1973, as agreed to with the Union July 5,
1973.
(b) Reimburse and make whole any and all employees
who have not been compensated in the manner prescribed
in said agreement, which I have directed should be execu-
ted. Said employees should receive their full wages from the
date I have found the terms of the agreement to have been
agreed to, namely: May 16, 1973, together with interest at
the rate of 6 percent per annum, as set forth in Isis Plumbing
& Heating Co., 138 NLRB 716.
(c) Preserve, and make available to the Board or its
agents, all payroll and other documents and records neces-
sary and useful to determine the amounts of backpay due
12 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Section
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.
SAMBO 'S RESTAURANTS 799
under the terms of this Order. duly signed by an authorized representative of the Respon-
(d) Post at their principal operating locations in River- dent, shall be posted by the Respondent immediately upon
side and Indio, California, copies of the attached ' notice receipt thereof, and be maintained for 60 consecutive days
marked "Appendix." 13 Copies of the notice on forms pro- thereafter, in conspicuous places, including all places where
vided by the Regional Director for Region 21, after being notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that the
i; In the event that the Board's Order is enforced by a Judgment of a
notices are not altered, defaced, or covered by any other
United States Court of Appeals, the words in the notice reading "Posted by material.
Order of the National Labor Relations Board" shall be changed to read (e) Notify the Regional Director for Region 21, in writ-
"Posted Pursuant to a Judgment of the United States Court of Appeals ing, within 20 days from the date of this Order, what steps
Enforcing an Order of the National Labor Relations Board." the Respondent has taken to comply herewith.