Singalong, Inc.

National Labor Relations Board - Board Decisions

Jan 2, 1979

239 N.L.R.B. 1156 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Singalong, Inc. and Hotel, Motel, Restaurant Employ-
ees, Cooks and Bartenders Union, Local 24. Case
7-CA-14611
January 2, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On October 5, 1978, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Singalong, Inc., Detroit,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
DECISION
STATEMENT OF THE CASE
ROBERT COHN. Administrative Law Judge: This case was
heard at Detroit, Michigan, on April 17, 1978, based upon
a charge filed on November 14, 1977, and a complaint
issued March 15, 1978. The sole issue to be resolved is
whether Singalong, Inc. (the Respondent herein), violated
Section 8(aX)(5) of the National Labor Relations Act, as
amended (herein the Act), through its failure and refusal to
execute a collective-bargaining agreement the terms of
which had been agreed upon following negotiations be-
tween Respondent and the Charging Party.'
By its duly filed answer to the complaint, Respondent
defends against the charges on the grounds that, although
it met with agents of the Charging Party whenever request-
ed, no agreement has been reached and therefore there has
I Hotel, Motel, Restaurant Employees, Cooks and Bartenders Union, Lo-
cal 24.
never existed a written agreement to sign. Respondent fur-
ther asserts that it is willing, able, and available to meet
with the Charging Party to negotiate and otherwise discuss
contract proposals.
At the close of the hearing, oral argument was waived.
However, helpful post-hearing briefs were filed by counsel
for the General Counsel and by counsel for Respondent,
which have been duly considered.
Upon the entire record in the case, including my obser-
vation of the demeanor of the witnesses, 2 I make the fol-
lowing:
FINDINGS OF FACT
I JURISDICTION
Respondent, a Michigan corporation, has, at all times
material, had its principal office and place of business in
Detroit. Michigan, where it is engaged in the retail opera-
tion of a restaurant and cocktail lounge.
During the year ending December 31, 1977, which pe-
riod is representative of its operations, Respondent, in the
course and conduct of its business operations, had a gross
volume of business in excess of $500,000. Also, during such
representative period, Respondent caused to be purchased
and delivered to its Detroit place of business liquor valued
in excess of $50,000, which was transported and delivered
unopened to said place of business and received from the
State of Michigan Liquor Control Commission, which, in
turn, had received the liquor directly from points located
outside the State of Michigan.
I find that Respondent is now, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The record establishes that the Charging Party is an or-
ganization in which employees participate and which ex-
ists, at least in part, for the purpose of dealing with em-
ployers concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or conditions of work. I
therefore find that it is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On or about May 9, 1977, 3 Respondent bought out the
previous owner of the restaurant and lounge which consti-
tutes the facility involved in the instant case and assumed
the labor contract which was extant between the Charging
Party and the previous owner.4 The collective-bargaining
agreement, executed on or about October 1, 1974, and run-
ning until September 30, 1977, included all employees who
2(Cf Bishop and Mulco, Inc., d hba Walker', 159 NLRB 1159, 1161
(1966).
All dates hereinafter refer to the calendar year 1977, unless otherwise
indicated
4 Respondent is owned by one Robert F Salvati (president), who, with his
wife Marjory Salvati (secretary-treasurer). controls and operates the facility.
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SINGALONG, INC.
worked at the facility (chefs, bartenders, waiters, wait-
resses, etc.).
On July 18, the Charging Party, by letter, notified Re-
spondent of its desire to open the collective-bargaining
agreement for the purpose of negotiating certain changes.
During the first week in September, the first negotiating
meeting was held between Robert Salvati and Eddie Ri-
chwein, business representative of the Union. at the
former's office. At that meeting Richwein presented Salvati
with the Union's proposal, which consisted of the current
agreement with modifications (increases) respecting wage
rates and pension contributions.5 According to Salvati's
testimony, he acknowledged receipt of the proposed agree-
ment, said he would review it, and agreed to a second
meeting the following week in September.
At the second meeting, agreement was reached between
the two men respecting the amount the employer was re-
quired to pay to the Union's pension fund (art. V). The
Union had proposed an increase from the previous con-
tract of 15 per day (from 50 to 65). Upon objection of
Salvati, the Union agreed to retreat from its proposal and
allow the contribution to remain at 50 per day. Salvati also
objected to article 1, section 2 of the proposed agreement,
which related to recognition of the Union at other estab-
lishments of the employer. Richwein, after securing
Tocco's approval, agreed to that exclusion. Salvati then ob-
jected to the language of the proposed agreement re-
specting employee uniforms (art. Xll). Richwein indicated
that he was certain that some acceptable language could be
worked out and that he would be back in touch with Salva-
ti on that point. The foregoing were the only objections
which Salvati raised to the proposed agreement, which
consisted of 17 articles.
Within a couple of days following the second meeting,
Tocco proposed some language to be added to article Xll
(uniforms), and Richwein took it to Respondent's lounge,
where, according to Richwein's testimony (which I credit
in this respect), he received Salvati's approval. Thereupon
Richwein indicated that he would make up a contract to be
signed prior to the expiration of the current contract on
September 30. This was accomplished, and on September
27 Richwein took copies of the contract to the Respon-
dent's place of business. However, he was told by Salvati's
wife that Salvati was at home sick with the flu. He left a
copy of the contract with her to give to Salvati.6
Richwein returned to Respondent's place of business
several times to see Salvati without success, presumably
because Salvati remained ill. On October I, Richwein took
5There is a conflict in the testimony as to the striking of two proposed
holidays (art. VII). They are Martin Luther King's birthday and the
employee's birthday. Richwein testified that Salvati insisted that those two
holidays be stricken from the proposed agreement and that Richwein subse-
quently received approval on that point pnor to the second meeting. Salvati
testified that the two holidays were already stricken in the proposed agree-
ment as it was presented to him (Salvati). I am inclined to credit Salvati's
testimony on this point since Tocco (Richwein's superior) did not mention it
in his testimony. However, the credibility resolution on this point should not
be construed as a general finding of credibility in favor of Salvati vis-a-vis
Richwein. "It is no reason for refusing to accept everything that a witness
says. because you do not believe all of it: nothing is more common in all
kinds of judicial decisions than to believe some and not all." N.L.f.B. v
Universal Camera Corporation, 179 F.2d 749, 754 (2d Cir. 1953).
b Marjory Salvati's denial of this testimony is not credited.
the checkoff papers to Respondent as was his custom, but
Marjory Salvati handed the papers back to him and would
not accept them because the contract had expired.
The next contract between Salvati and Richwein, ac-
cording to the lattet's testimony, was on or about October
12, when Richwein went to Respondent's lounge and Sal-
vati was there. When Richwein asked Salvati what he in-
tended to do about the contract, Salvati responded that he
did not intend to sign the contract because the employees
did not want it. When Richwein asked Salvati if it would
help matters if Tocco came with him, Salvati responded
that he did not care who Richwein brought-that he (Sal-
vati) did not intend to sign the contract.
On October 19, Richwein wrote to Salvati enclosing two
copies of the agreement which Richwein contended was
reached, as follows:
Dear Mr. Salvati:
I met with you on numerous occasions prior to Oc-
tober 1, 1977 to negotiate a new collective bargaining
agreement covering food service employees at the
Sing-A-Long. The new contract was to replace the one
expiring on the above-mentioned date.
Numerous changes were made, many of them at
your request. A full and complete agreement was
reached on or about September 27, 1977. The under-
standing we reached was that I would have the pro-
posed contract approved by my superiors, drafted,
and delivered to you for signature. The proposed con-
tract was, in fact, approved. The proposed contract
was then reduced to writing.
I have made repeated efforts to contact you for the
purpose of signing the contract. I have been continu-
ally rebuffed in this effort.
Two copies of the agreement that we reached are
enclosed. Please sign one of the copies and return it to
me by return mail. In the event I do not receive the
signed agreement by Wednesday, October 26, 1977, it
will be necessary for the Union to file unfair labor
practice charges against you in this matter. I hope we
can avoid costly and time consuming litigation, as well
as other disruptions.
Salvati denied having any further meetings with Richwein after Septem-
ber. In his testimony at the hearing. he stated that Richwein telephoned him
in the middle of October for the purpose of getting together on the contract.
However. Salvati responded by asking Richwein. 'IWlhy did you come in
here and try to get these girl 'o walk out if you wanted to discuss a contract
with me And he avoided the issue. And I said you came in here. you talked
to Patty, you talked to Linda, and you told these girls that you have no
other alternative. They would have to go out on strike. And these girls told
you that they didn't have anything to strike about. I said when you do these
things behind my back and then you come on the other breath (sic . . . and
tell me that you want to negotiate a contract with me. I said I don't certainly
think you are talking in good faith here."
However, this testimony is contradicted by Salvati's prehearing affidavit.
in which he stated that he had no contract with Richwein between the date
of his last meeting in late September and the date of an asserted scheduled
meeting with Richwein and Tocco on October 20. Salvati testified that he
had a scheduled meeting with Richwein and Tocco on October 20 at 6 p.m.
and that he made a note of the meeting and alerted one of his employees.
Gerald Wilson. to make sure that he would direct these people back to his
office when they came in but that they did not show up. Both Richwein and
Tocco denied that there was a scheduled meeting because of Salvati's state-
ment to Richwein that he did not intend to sign a contract. Gerald Wilson
was not called as a witness at the heanng.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If you cannot get the agreement to me by October
26, I would appreciate your contacting me at 833-3905
or at my home (KE2-8381).
Very truly yours,
Edward Richwein
Business Representative
The foregoing letter was sent by certified mail, return
receipt requested. It was refused by Marjory Salvati when
delivery was attempted by the postal service. Salvati testi-
fied that he had given previous instructions to his wife and
his employees that they were not to sign anything for him.
Analysis and Concluding Findings
The ultimate question to be resolved in this case-
whether an agreement was reached between the parties
which Respondent refused to execute-depends essentially
upon which party the factfinder chooses to believe regard-
ing their respective testimony as to the occurrence of
events. After a thorough consideration of the record evi-
dence, including arguments of counsel and the demeanor
of the witnesses, I am convinced and therefore find that
there was, in fact, an agreement reached respecting the
terms of a new contract, which Respondent failed and re-
fused to execute, in violation of Section 8(aX)(5) of the Act.
Respondent's principal defense to the complaint appears
to be that no agreement was reached primarily because the
representative of the Charginr Party had no authority to
bind the Union to a contract. However, in the context of
the negotiations, and by Respondent's testimony at the
hearing, this contention appears to be an afterthought of
Respondent. That is to say, the discussion at the negotia-
tions was based on the Union's proposed contract, which
Respondent's president, Salvati, reviewed and thereafter
listed his objections. His objections to the three or four
matters previously discussed were quickly resolved by the
union negotiator after contact with his superior. Respon-
dent did not contend either during the negotiations or at
the hearing that there were other clauses in the contract
concerning which he wished to negotiate but was unable to
because of Richwein's asserted lack of authority. Had Re-
spondent sincerely and in good faith wanted to continue
negotiations in an effort to reach an agreement with the
Union, it had ample opportunity to do so. Even if one
credits Respondent's evidence that there was no contact
between Richwein and Respondent from late September
until mid-October, it could have notified Richwein when
he presented the checkoff list on October I of its desire to
continue the negotiations. But it did not do so.
Moreover, in the asserted telephone conversation be-
tween Richwein and Salvati in mid-October, hereinabove
referred to, Salvati did not mention lack of authority as a
reason for the breakdown of negotiations. Rather, the
breakdown was assertedly caused by Richwein's "doing
things behind Salvati's back," particularly talking to the
employees about a strike.'
I In its answer, as well as in its testimony at the hearing, it is asserted that
Respondent is willing, able, and available to meet with the Union to negoti-
ate and otherwise discuss contract proposals.
Holidays, pensions, additional establishments, and uniforms.
Finally, I find unpersuasive Respondent's assertion in its
answer and at the hearing that Respondent was willing to
continue contact and negotiations with the Union in light
of Salvati's testimony of his reaction to the refusal by his
wife of the Union's certified parcel containing the pro-
posed contract. His testimony is as follows:
JUDGE COHN: When did you first find out that this
was attempted to be delivered to your place of busi-
ness, do you remember?
THE WITNESS: No. I saw the exhibit today.
JUDGE COHN: You didn't know that there had been a
certified parcel attempted to be delivered to your
place of business, and refused, before today?
THE WITNESS: I think that at the time my wife did
say something to that effect to me. And I think that in
my discussion with her I said something to the effect
that if they wanted to give me something, he could
come in and bring it to me.
In view of all of the foregoing, I conclude and therefore
find that since on or about September 27, 1977, Respon-
dent has failed and refused to execute the collective-bar-
gaining agreement arrived at between Respondent and the
Union, in violation of Section 8(aX)(5) and (1) of the Act.
CONCLUSIONS OF LAW
I. Singalong, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Hotel, Motel, Restaurant Employees, Cooks and Bar-
tenders Union, Local 24, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees of Singalong, Inc., including chefs,
cooks, pantry employees, utility employees, bartenders,
waiters, waitresses, bus help, hosts, hostesses, porters, and
checkroom attendants, but excluding guards and supervis-
ors as defined in the Act, constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein since October 1, 1974, the
above-named Union has been the exclusive bargaining rep-
resentative of the employees in the above-described unit
within the meaning of Section 9(a) of the Act.
5. By failing and refusing to sign the collective-bargain-
ing agreement embodying the terms of an oral agreement
reached on or about September 27, 1977, Respondent has
violated Section 8(aX5) and (I) of the Act.
6. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It has been found that Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(aX5)
and (1) of the Act by failing and refusing to sign the collec-
tive-bargaining agreement embodying the terms of an oral
agreement reached on or about September 27, 1977. In or-
10 It is noteworthy. in my view, that Respondent failed to call as witnesses
ary of the employees named in Salvati's testimony to corroborate the latter,
since it was not shown that they were unavailable.
!158
SINGALONG, INC.
der to effectuate the policies of the Act, it will be recom-
mended that Respondent cease and desist from engaging
in such unlawful activity and that, upon request, it sign
said collective-bargaining agreement forthwith. H. J.
Heinz Conympany v. N.LR.B., 311 U.S. 514 (1941). In addi-
tion, it will be recommended that Respondent give effect to
the terms of said agreement retroactive to October 1, 1977,
and make employees whole for any losses they may have
suffered by reason of its failure to execute and sign the
aforesaid agreement," with interest thereon to be comput-
ed in the manner presceibed in Florida Steel Corporation,
231 NLRB 651 (1977),2
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to the
provisions of Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER '3
The Respondent, Singalong, Inc., Detroit, Michigan, its
officers, agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Refusing to sign a written contract embodying terms
of an oral agreement reached on or about September 27,
1977, with Hotel, Motel, Restaurant Employees, Cooks
and Bartenders Union, Local 24.
(b) Failing and refusing to give effect to the terms and
provisions of the contract described in paragraph I(a),
above, from the date on which it was agreed that the con-
tract take effect.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Upon request, sign the collective-bargaining agree-
ment described in paragraph I(a), above.
(b) Give effect to the terms of the contract described in
paragraph I(a), above, retroactive to October 1, 1977, and
make the employees whole for any losses they may have
suffered as a consequence of its failure to execute and sign
said contract, with interest, as set forth in the section
herein entitled "The Remedy."
(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, contracts,
timecards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due un-
der the terms of this Order.
(d) Post at its place of business at Detroit, Michigan,
copies of the attached notice marked "Appendix." 14 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 7, after being duly signed by Respon-
dent's representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
' See. e.g.- Penasquiaos Gardens, Inc., et al., 236 NLRB 994 (1978).
' See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
! In the event no exctptions 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.
$ In the event that this Order is enforced by a judgment of a United
States Court of Appeals, the woids in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United S ates Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collective regarding
wages, hours, and other terms and conditions of em-
ployment with Hotel, Motel, Restaurant Employees,
Cooks and Bartenders Union, Local 24, as the exclu-
sive representative of the employees in the following
appropriate unit:
All employees of Singalong, Inc., including chefs,
cooks, pantry employees, utility employees, bar-
tenders, waiters, waitresses, bus help, hosts, host-
esses, porters, and checkroom attendants, but ex-
cluding guards and supervisors as defined in the
Act.
WE WILL NOT refuse to execute the contract with the
Union which was agreed upon on or about September
27, 1977, and was effective as of October 1, 1977.
WE WILL NOT fail and refuse to give effect to the
terms and provisions of the agreed-upon contract with
the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, execute the contract agreed
upon on or about September 27, 1977, and WE WILL.
upon request, give effect to the terms of that contract
from its effective date of October 1, 1977.
WE WILL reimburse our employees covered by the
contract for any monetary losses they may have suf-
fered by our past refusal to sign the contract, with
interest.
SINGALONG. INC.
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