Steak and Brew of Merrick

National Labor Relations Board - Board Decisions

Dec 6, 1972

200 N.L.R.B. 783 (N.L.R.B. 1972)

STEAK AND BREW OF MERRICK 783
Longchamps, Inc and its Wholly Owned Subsidiary S
& B Rest of Merrick , Inc, d/b/a Steak and Brew
of Merrick and Kathryn Friedman and Local 650,
Chain Restaurant Employees Union, Hotel and
Restaurant Employees and Bartenders Internation-
al Union, AFL-CIO, Party to the Contract Case
29-CA-2781
December 6, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On July 26, 1972, Administrative Law Judge' Paul
E Weil issued the attached Decision in this proceed-
ing Thereafter, the Respondent filed exceptions and
a supporting brief, and the General Counsel filed a
brief in opposition to the Respondent's exceptions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached 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
Umon, affiliated with Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, hereinaf-
ter called Local 650, at a time when Local 650 did not
represent an uncoerced majority of employees in the unit
covered by the contract Thereafter, Miss Friedman filed
an amended charge containing the same allegations and
including an allegation that the contract contained a union-
security clause, thereby additionally constituting a viola-
tion of Section 8(a)(3) of the Act On May 24, 1972, the
Regional Director of Region 29 of the Board issued a
complaint alleging that Longchamps, Inc and its Wholly
Owned Subsidiary S & B Rest of Merrick, Inc, d/b/a
Steak and Brew of Merrick, hereinafter called Respondent,
violated 8(a)(1), (2), and (3) of the Act by various acts and
conduct as alleged in the charges On June 9, 1972, the said
Regional Director issued an order amending the complaint
by naming Local 650 as a Party to the Contract and a
party to the proceeding On June 19, 1972, the Respondent
answered denying substantially all of the allegations of the
complaint The Party to the Contract filed no pleading On
the issues thus joined the matter came on for hearing
before me on June 26, 1972 All parties appeared or were
represented by counsel All parties had an opportunity to
call witnesses, adduce relevant and material evidence, to
argue on the record, and to file briefs The parties waived
oral argument Briefs have been received from the General
Counsel and from Local 650
Upon the entire record and in consideration of the briefs,
I make the following
FINDINGS OF FACT
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Longchamps, Inc
and its Wholly Owned Subsidiary S & B Rest of
Merrick, Inc, d/b/a Steak and Brew of Merrick,
New York, its agents, successors, and assigns, shall
take the action set forth in the said recommended
Order
i The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E WEIL, Trial Examiner On March 6, 1972,
Kathryn Friedman, an employee, filed a charge with the
Regional Director of Region 29 of the National Labor
Relations Board, hereinafter called the Board, alleging that
Steak and Brew of Merrick violated Section 8(a)(1) and (2)
of the Act by interrogation of employees concerning their
union activities and by recognizing and maintaining a
contract with Local 650, Chain Restaurant Employees
I THE BUSINESS OF RESPONDENT
At the time of the occurrences herein, Longchamps, Inc ,
owned all of the stock of S & B Rest of Merrick, Inc,
which operated a restaurant in Merrick, known as Steak
and Brew of Merrick Longchamps, Inc, at this time, was
admittedly engaged in interstate commerce within the
Board's jurisdictional requirements After the incidents
occurring herein, Longchamps transferred its stock in S &
B Rest of Merrick, Inc, to a corporation known as Steak
and Brew, Inc, of which Longchamps owns approximately
80 percent, and which operates a substantial number of
similar restaurants in New York State and other 'States I
find that at all times relevant hereto the Respondent was
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Local 650 is a labor organization within the meaning of
Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
In April i Arthur Haaker, the director of personnel of
Longchamps, Inc, was in Merrick, New York, interviewing
prospective employees for a restaurant to be known as
Steak and Brew, which was being established by Respon-
i All dates hereinafter are in the year 1971 unless otherwise specified
200 NLRB No 113
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent in a site that had been occupied 3 or 4 months prior
thereto by another restaurant, "The Flaming Pit " Two
unnamed individuals presented themselves to him and
stated that they represented the Union, and that they had a
previous contract with the former owners of the premises,
and would like to represent Respondent 's employees
Haaker answered that he would work out an agreement
with them if they did represent the employees but that he
had no employees at the time 2
Louis J Ippolitto testified that he was assigned to sign up
employees at the Merrick Steak and Brew He first went
near the employees in July or August and left cards on the
premises Somewhere around August 8, 9, or 10, he went to
the restaurant and spoke to Manager Mazzarella and asked
for recognition He had approximately 30 cards which he
handed to Mazzarella Mazzarella flipped through the
cards and went into a back room, came out in 5 or 10
minutes and said he had no authority to bargain with a
union and advised Ippolitto to contact Longchamps, Inc,
in New York Ippolitto reported this conversation to the
International Administrator of the Local, Frank Pries, and
had no further contact with the situation
Ippolitto testified that he knew most of the people who
had signed those cards to be persons who were employed
at Merrick Steak and Brew and that to the best of his
knowledge the 30 persons were employed, during the week
he demanded recognition, in the food and beverage area
and in the kitchens
Personnel Director Haaker testified that at some time in
August Mr Pries, whom he thought to be the president of
Local 650, told him by telephone that the Union represent-
ed the employees at Merrick and wanted to bargain for
them Haaker accepted Pries' word that the Union
represented the employees and subsequently entered into
negotiations and signed the contract on November 1 which
contract contains a union-security clause He testified that
he had no doubt of the truth of Pries' claim to representa-
tive status because it is not uncommon in his industry that
"where there is a prior contract on the premises that when
you reopen the premises that that union approach you as a
representative of the employees on that premises ," and that
he had no reason to disbelieve the claim
Haaker testified that he did not hire the same people that
had been employed by the previous restaurant, and that
the premises were closed for 3 or 4 months between the
two However, he thought that it is possible that some of
the employees might have worked for the predecessor
enterprise
A week or two before Thanksgiving, Manager Mazzarel-
la announced that there was going to be a meeting on the
day before Thanksgiving at which all employees in the unit
must be in attendance , and that the employees were to
meet with the Union and were required to join the Union
Mazzarella also stated that failure to attend the meeting
would be cause for discharge The Union did not show up,
although all of the employees were there
At about the same time some of the employees signed
cards with Retail, Wholesale & Department Store Workers'
Union, Local 88
A few days after the abortive meeting announced by
Mazzarella , and after the employees had signed cards with
Local 88 , Haaker came to the restaurant and had a
conversation with the Charging Party He asked what the
problem was and why the employees had joined Local 88
Miss Friedman said that she believed that the contract that
Respondent had signed with Local 650 was invalid because
none of the employees had ever heard about it or seen it
Miss Friedman testified that Hanker answered that he
knew the contract was invalid, but that he would not
recognize Local 88 and if the employees continued to press
the matter, they would find themselves on the picket line
and he would run the place with nonumon people
On April 22, 1972, another employee meeting was held
It was attended by Ippolitto and Pries, and the district
supervisor for Steak and Brew The employees were
required at that time to sign cards and were given an
opportunity to ask questions about the contract which
Respondent had entered into with Local 650 Apparently
neither Pries nor the district supervisor was familiar with
the contract According to Miss Freedman's testimony, the
employees asked various basic questions concerning, for
instance , whether busboys could have a break during the
night for their own meals, and whether the waitresses and
waiters were to get any raise in pay as result of the
contract In each instance the district manager and Pries
had to search through the contract to find answers for the
employees
The alleged contract was placed in evidence and appears
to be a mimeographed form contract with the name of the
employer and its address typed on a different typewriter
Similarly, the date of the agreement and the expiration
date are typed in The rates of the various classifications
are contained on a separate schedule and the specific
figures are typed in The name of the employer is not
entered on the signature page A signature appears in the
place apparently designated for that purpose , which is the
same signature that appears on a rider relating to the
Presidential Executive Order of August 15, 1971 Neither
signature is legible , but it can be seen that it is not that of
Mr Haaker
Local 650 stipulated with the General Counsel that on
November 1, of the 52 employees in the unit , only 10 had
signed cards for Local 650, 42 had not
Discussion and Conclusions
The General Counsel contends that Respondent violated
Section 8(a)(2) by entering into a contract with Local 650
at a time when it did not represent a majority of the
employees It is clear that on November 1 Local 650 was
not a majority representative , but rather had fewer than
one-fifth of the employees signed up Local 650, however,
contends that at the time of recognition it represented 30
employees _ out of an employee complement of 45 or 50,
and that under the Board 's rule in Keller Plastics Eastern,
Inc, 157 NLRB 583, the parties had a right to rely on the
continuing representative status of the lawfully recognized
union for a reasonable amount of time while negotiating
2 There are certain unprobabildies in the account of Haaker inasmuch as
Local 650 was first chartered May 1 1971
STEAK AND BREW OF MERRICK 785
their contract Local 650 contends that the 10 weeks that
elapsed herein was a reasonable period of time
The General Counsel advances various arguments why
the Keller Plastics rule is mapplicable to the instant
proceedings In the first place, the General Counsel points
out that in Keller Plastics, as in most of the cases that
follow it, the evidence reveals that the bargaining status
was established as a result of the voluntary recognition of
the majority representative In the instant case it is
undisputed that the voluntary recognition was granted by
Respondent on Local 650's bald assertion that it had a
majority and on Haaker's belief that it had represented a
predecessor employer, which, in fact, could not have been
so since Local 650 apparently did not come into existence
until after the date on which Haaker first claims to have
met with its agents
The testimony of Ippolitto does not suffice to show that
Local 650 at any time represented a majority of the
employees Neither Ippohtto nor Haaker attempted to
testify to any specific dates on which any of the actions
prior to the execution of the contract took place Although
the evidence was clearly within the control of Local 650,
the 30 cards allegedly signed by employees in July or
August were not offered by Local 650 or by Respondent,
nor indeed were they even brought to the hearing
Similarly, Respondent was not prepared to show that Local
650 at any time had a majority It did not supply payroll
lists for any period other than those subpenaed for the
period surrounding November 1 by the General Counsel
Local 650 contends that its lack of majority on
November 1 is attributable to the high turnover of
employees There is no reason to believe that the high
turnover of employees all took place during the period
when the parties were allegedly negotiating a form
contract It is more probable, in my opinion, that the
turnover was higher at the beginning of the enterprise than
later, and a greater amount of the turnover took place in
July and August than in September and October, but this is
mere conjecture The cards were allegedly signed in the last
week in July or the first week of August Recognition was
allegedly granted somewhere in early or mid-August No
party produced Mazzarella, the manager who allegedly
looked at the cards, and thus there is no evidence of what,
if anything, he found or whether he, in fact, checked the
cards against the payroll
The General Counsel points out that the Keller rule is, in
effect, an affirmative defense raised by Respondent and
Local 650, the general rule being that 8(a)(2) is violated by
entering into a contract with a minority union 3 The party
alleging an affirmative defense must support it with
evidence, and it can scarcely be said that the evidence
produced by Local 650 and the Respondent shows
affirmatively that Local 650 ever represented a majority of
the employees Accordingly, there is no evidence that the
recognition was valid, and the Keller rule applicable
Nor is the argument of Respondent that it negotiated in
good- faith reliance on the Union's clarm of majority
sufficient to carry the burden of showing that recognition
was valid The rationale expressed by Haaker, as shown
above, is invalid, and it would appear that a man in his
position dealing with many units , all represented by
unions, would have been aware of the fact that a union
claiming to represent chain restaurant employees was a
newcomer to the field and could not have represented the
predecessor Furthermore, Haaker testified that he had no
reason to believe that he had hired any substantial number
of his predecessor 's employees In fact, this was not a
successorship case , there was a lapse of 3 or 4 months and
a completely new hiring procedure If any employees who
had worked for the Flaming Pit ended up working for
Respondent, it was coincidence
I find under the Bernhard Altmann rule that Respondent
violated Section 8(a)(1) and (2) of the Act by entering into
a contract with Local 650 as the representative of its
employees at a time when Local 650 represented fewer
than one-fifth of its employees in the recognized unit
It follows that as the General Counsel contends, by the
imposition of the union-security clause on the employees,
and the requirement that they join Local 650 , Respondent
violated Section 8(a)(3) and (2) of the Act Respondent's
actions in this regard , as the Board stated in Keller Plastics,
would be valid if the contract were valid , but having found
that the contract was not valid, I must find that the actions
violate Section 8(a)(3) and (2) Similarly , I find that
Respondent violated Section 8(a)(1) by the actions of its
supervisor, Mazzarella, in requiring employees under
threat of discharge , to attend a union meeting on
November 24, even though the union meeting did not take
place That no employee was able to testify that the
meeting was supposed to be with Local 650 is immaterial
It is clear and stipulated that the employees were required
to attend the meeting, and it is undemed that the manager
informed them that their failure to do so would be cause
for discharge Inasmuch as no union at that time was party
to a valid contract with Respondent requiring union
membership, Respondent' s actions in this regard violated
Section 8(a)(2) and (1) of the Act, and I so find
Finally, the General Counsel contends that various of
Respondent's officers , including Hanker, threatened em-
ployees if they became or remained members of Local 88,
and if they gave any assistance and support to it The
evidence in support of this allegation was the language
attributed to Haaker by Miss Friedman in his conversation
shortly after Thanksgiving Haaker denied any threats to
Miss Friedman on this occasion Haaker stated that Miss
Friedman told him that Local 650 was not the representa-
tive of the employees, but that Local 88 was, and that he
asked her what Local 88 was He then told her that he had
a contract with Local 650 and understood that it
represented the employees He did not specifically deny the
language attributed to him by Miss Friedman, to the effect
that he warned her that if the employees followed Local 88
out on strike for recognition , they would be replaced but I
do not believe that he stated that he would run the
restaurant nonunion as she testified I believe his testimony
that it is no part of Longchamps' policy to attempt to fight
unions among its employees , and that all but one of the
restaurants over which he exercised his supervision had
3 International Ladies Garment Workers Union AFL-CIO [Bernhard
Altmann l v NLRB 366 U S 731
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union contracts I do not find this statement by Haaker is
coercive, in the manner which gave rise to the decision in
Kellwood Company, 4 relied on by the General Counsel I
believe that Respondent's attitude in this proceeding is as
near to neutrality as its contractual status with Local 650
permits, and that Haaker did not imply or mean to imply
that adherence to Local 88 would be detrimental to the
employees' interests 5 Accordingly, I recommend that this
allegation of Section 8(a)(1) be dismissed
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 com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof
V THE REMEDY
Having found that Respondent entered into a contract
with Local 650 at a time when Local 650 did not represent
a majority of its employees, and thereafter continued in
effect and enforced the union-security provisions of the
contract by requiring employees to join Local 650,
Respondent has violated Section 8(a)(3), (2), and (1) of the
Act In order to effectuate the policies of the Act, I shall
recommend that Respondent withdraw and withhold
recognition of Local 650 as the collective-bargaining
representative of its employees, and cease giving effect to
said collective-bargaining agreement I recommend that
Respondent reimburse all of its employees for moneys paid
by or withheld from them after November 1, 1971, for
initiation fees, dues, or other obligations of membership in
Local 650 In accordance with the Board's decision in Isis
Plumbing & Heating Co, 138 NLRB 716, interest should be
included in such reimbursements, such interest should be
computed in the manner set forth in Seafarers' Internation-
al Union, 138 NLRB 1142
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 Local 650, Chain Restaurant Employees' Union,
Hotel and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act
3 By continuing since November 1, 1971, to recognize
Local 650 and by continuing to give effect to a collective-
bargaining agreement with that union, which contained,
inter aba, provisions for union-security and dues checkoff,
Respondent has assisted and supported a labor organiza-
tion and thereby has engaged in and is engaging in unfair
4 Kellwood Company Ottenheimer Division, 178 NLRB 20
5 It may be noted that Local 88 on November 29 filed a petition for an
election among Respondents employees The petition was thereafter
withdrawn by Local 88 after the intervention of the AFL-CIO s no-raid
apparatus
6 In the event no exceptions are filed as provided by Sec 102 46 of the
labor practices within the meaning of Section 8(a)(1), (2),
and (3) of the Act
4 By requiring its employees to attend union meetings
and to join the Union under the threat of discharge, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(2) and (1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act On the basis of the
foregoing findings of fact and conclusions of law and on
the entire record in this case and pursuant to Section 10(b)
of the Act, I hereby issue the following recommended 6
ORDER
Respondent, Longchamps, Inc, and its Wholly Owned
Subsidiary S & B Rest of Memck, Inc, d/b/a Steak and
Brew of Merrick, its officers, agents, successors, and
assigns, shall
1 Cease and desist from
(a) Giving effect to its contract dated November 1, 1971,
or any modifications , extensions or renewals thereof or any
other contract, agreement, or understanding entered into
with Local 650, Chain Restaurant Employees Union, Hotel
and Restaurant Employees and Bartenders International
Union, AFL-CIO, or any other successor thereto relating
to grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless
and until such labor organization shall be certified by the
National Labor Relations Board as the exclusive represent-
ative of Respondent's employees, provided, however, that
nothing in this order shall be construed to require the
Respondent to vary or abandon any wages, hours,
seniority, or other substantive features of its relations with
its employees which Respondent has established in the
performance of said contract or to prejudice the assertion
by employees of any rights they may have thereunder
(b) Recognizing Local 650 or any successor thereto as
representative of any of its employees for the purpose of
collective bargaining unless or until said labor organization
shall have been certified by the National Labor Relations
Board as the exclusive bargaining representative of such
employees
(c) Forcing or requiring its employees to attend meetings
of or to join Local 650 or take part in any activities thereof,
or permitting its supervisors and agents to attend or
participate in meetings of Local 650
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act
2 Take the following affirmative action which will
effectuate the policies of the Act
(a) Reimburse all of its employees, former and present,
for moneys paid by or withheld from them on or after
November 1, 1971, for initiation fees, dues, or other
obligations of membership in Local 650, Chain Restaurant
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
STEAK AND BREW OF MERRICK
Employees Union, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, together with
interest thereon at the rate of 6 percent per annum in the
manner set forth in the section of this Decision entitled
"The Remedy "
(b) Withdraw or withhold recognition from said Local
650 or any successor labor organization as the representa-
tive of Respondent's employees for the purpose of
collective bargaining unless and until said labor organiza-
tion shall have been certified by the National Labor
Relations Board as the exclusive representative of such
employees
(c) Post at its restaurant in Merrick, New York, copies of
the attached notice marked "Appendix " 7 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by an authorized
representative of the Respondent, shall be posted immedi-
ately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted Reasonable steps shall be taken to ensure that said
notices are not altered, defaced, or covered by any other
material
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith 8
I In the event that the Board s Order is enforced by a Judgment of the
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
8 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read
Notify the Regional Director for Region 29 in writing within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
787
ordered us to post this notice and we intend to carry out
the Order of the Board and abide by the following
The Act gives all employees these rights
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all these things
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to these
rights
WE WILL cease giving effect to our contract with
Local 650, Chain Restaurant Employees Union, Hotel
and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO
WE WILL cease recognizing Local 650 and withdraw
and withhold recognition from it as your representative
for collective bargaining
WE WILL reimburse all our employees, former and
present, for all initiation fees, dues, or other obligations
of membership paid by them to Local 650, together
with interest at 6 percent per annum
Dated By
LONGCHAMPS, INC AND ITS
WHOLLY OWNED
SUBSIDIARY S & B REST
OF MERRICK , INC D/B/A
STEAK AND BREW OF
MERRICK
(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 concern-
mg this notice or compliance with its provisions may be
directed to the Board's Office, 16 Court Street-Fourth
Floor, Brooklyn, New York 11201, Telephone
212-596-3535