Tasman Sea

National Labor Relations Board - Board Decisions

Jan 2, 1980

247 N.L.R.B. 18 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Tasman Sea, Inc. and Hotel and Restaurant
Employees and Bartenders Union Local 11, AFL-
CIO
Frank & Frank, Inc., d/b/a Tasman Sea and Hotel
and Restaurant Employees and Bartenders Union
Local 11, AFL-CIO. Cases 31-CA-7749 and 31-
CA-8644
January 2, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELI.O AND TRUESDALE
On September 18, 1979, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision in
this proceeding. Thereafter, Respondent Frank &
Frank, Inc., d/b/a Tasman Sea filed exceptions and a
si ,porting brief.
. arsuant 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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Orders.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Orders the recommend-
ed Orders of the Administrative Law Judge and
hereby orders that the Respondents, The Tasman Sea,
Inc., and Frank & Frank, Inc., d/b/a Tasman Sea,
both of San Pedro, California, their officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Orders, except that the
attached Appendix A is substituted for that of the
Administrative Law Judge.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
APPENDIX A
NoTICiE To EMPL.OYEI.ES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act, as amended, and has
ordered us to mail this notice to you.
The Act gives all employees the following rights:
To act together for the purpose of collective
bargaining or other mutual aid or protection
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To refrain front any or all of these things.
WE WILL NOT refuse to bargain collectively in
good faith with Hotel and Restaurant Employees
and Bartenders Union Local 11, AFL-CIO, by
agreeing to enter into a collective-bargaining
contract on the condition that we be permitted to
pay health and welfare benefits on behalf of union
members only, and on the further condition that
the Union not enforce the union-security clause
which makes union membership mandatory as a
condition of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
THE TASMAN SEA, INC.
DECISION
STATE.MENT OF THI: CASE
GERAD A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with respect to this matter was
held before me in Los Angeles, California. on April 17, 1979.
The charge in Case 31-CA-7749 was filed on February 21,
1978, by Hotel and Restaurant Employees and Bartenders
Union Local 11, AFL-CIO (herein called the Union), and a
first amended charge was filed by the Union on April 17,
1978. Thereafter, on April 19, 1978, a complaint and notice
of hearing was issued alleging a violation by The Tasman
Sea, Inc. (herein called Tasman Sea), of Section 8(a)(5) and
(1) of the National Labor Relations Act, as amended (herein
called the Act). Said complaint was amended on June 14,
1978.
The charge in Case 31-CA-8644 was filed by the Union
on January 9, 1979. Thereafter, on February 27, 1979, a
complaint and notice of hearing was issued alleging a
247 NLRB No. 7
18
THE TASMAN SEA. INC.
violation by Frank & Frank, Inc., d/b/a Tasman Sea (herein
called Frank & Frank), of Section 8(a)(5) and (1) of the Act.
Said cases were consolidated for the purpose of hearing by
order dated March 15, 1979. Respondents' respective an-
swers to the complaint deny the commission of any unfair
labor practices.
The parties were afforded a full opportunity to be heard,
to call, examine, and cross-examine witnesses, and to
introduce relevant evidence. Post-hearing briefs have been
received from the General Counsel and counsel for Frank &
Frank.
Upon the entire record and based upon my observation of
the witnesses and consideration of the briefs submitted, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
Tasman Sea is a California corporation formerly engaged
in the operation of a restaurant, coffeeshop, cocktail lounge,
and motel in San Pedro, California. During the period of its
operation, Tasman Sea had annual gross revenues, on a
projected basis, of $500,000 and annually purchased alcohol-
ic beverages valued in excess of $5,000 which originated
outside the State of California. On the basis of the foregoing
I find that Tasman Sea has been at all times material herein
an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act. City Line Open Hearth. Inc., 141 NLRB 799
(1963); Carolina Supplies and Cement Co., 122 NLRB 88
(1958); N.L.R.B. v. Reliance Fuel Oil Corporation, 371 U.S.
224 (1963).
Frank & Frank, a successor to Tasman Sea, is a California
corporation engaged in the operation of a restaurant,
coffeeshop, cocktail lounge, and motel in San Pedro,
California, with annual gross revenues in excess of $500,000.
In the course and conduct of its business operations it
annually purchases goods and services valued in excess of
$5,000 which originate outside the State of California. It is
admitted, and 1 find, that Respondent is an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE l.AROR ORGANIZATION INVOI.VED
Uncontroverted record evidence affirmatively shows, and
I find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR lABOR PRACTICES
A. Issues
The principal issues raised by the pleadings are:
1. Whether Tasman Sea violated Section 8(a)(5) and (1) of
the Act by insisting during the course of contract negotia-
tions that certain contract provisions be discriminatorily
applied or that they not be enforced.
' In fact. the record shows that the predecessor employer had only been
paying such fringe henefits on behalfof the same It employees. and there is no
indication that the Union did not acquicsce in Ihis practice.
2. Whether Frank & Frank violated Section 8(a)(5) and
(I) of the Act by failing and refusing to execute a collective-
bargaining agreement to which it had agreed.
B. The facts
Tasman Sea purchased the restaurant-motel-coffeeshop-
cocktail lounge operations, collectively known as Tasman
Sea, from a predecessor employer on June 23, 1977, and
continued the business operations of the predecessor without
interruption, providing the same services with the same
equipment and employing the same supervisors and employ-
ees.
The Union had maintained a collective-bargaining rela-
tionship with the predecessor employer since 1960. and at
the time of purchase by Tasman Sea the then current
contract extended through March 15, 1978. Shortly after
June 23, 1977, a union business representative requested that
Megerdoon Manssourian, the owner and president of Tas-
man Sea, enter into a collective-bargaining agreement with
the Union. The record does not disclose what transpired
between that date and October 5, 1977, but on the latter date
Manssourian, accompanied by his attorney, had a meeting
with Business Representative Robert Giesick, who again
asked that a contract be executed. Manssourian agreed to
sign a contract on the condition that he be permitted to
continue the practice of the predecessor employer in paying
contractual health and welfare benefits on behalf of only I I
of the then approximately 40 unit employees.' and receise a
letter to this effect from the Union. Giesick replied that the
Union could not agree to this as it would be illegal. Several
subsequent meetings failed to result in agreement, and at a
meeting on October 21, 1977, Tasman Sea's attorney
reiterated that the Employer's position was unchanged
regarding the aforementioned matter of health and welfare
benefits.
On November 2, 1977, Tasman Sea's attorney sent a letter
to the Union, containing, inter alia, the following language:
It is true that the employer [The Tasman Sea] has
agreed to make health and welfare retirement contribu-
tions on behalf of certain employees, however, this
agreement is conditional upon an agreement from the
Union that it will not enforce Article 3, Section I [union
security] portion of the agreement which was entered
into by the Western-Ho [Rawlins] Agreement. Also. the
payment of health and welfare retirement contributions
is to be made on behalf of employees who are members
of the Union in good standing.
Still another meeting was held on December 16, 1977,
with no agreement being reached. At the final meeting on
ianuary 15, 1978, Giesick advised Manssourian that the
Union would take economic action unless the Employer
agreed to sign a contract, but modified its position that all
employees be covered by the health and welfare provision of
the contract by proposing that the Employer agree to pay
health and welfare benefits on behalf of only 14 of the 40
employees. Manssourian refused, and picketing commenced
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on January 26, 1978. Only one part-time employee refused
to work during the strike however.:
On June 23, 1978, Union Representatives Albert R.
Loffredi, director of negotiations, and Fred Felix, director of
organization, met with representatives Frank Accetta and
Jerry Sutton of Frank & Frank, who were at that time
engaged in finalizing the purchase of the Tasman Sea from
Manssourian. Sutton, stating that he was a partner and
general manager of Frank & Frank, requested that the picket
line be removed and agreed that Frank & Frank would enter
into a contract with the Union. After further discussion it
was agreed that the picket line would be removed immedi-
ately and that Frank & Frank would sign a contract with the
Union which would be effective 6 months after the close of
escrow. Loffredi handed four copies of the area contract and
supplemental agreement to Sutton. Sutton asked what the
contract contained, and Loffredi stated in general terms that
it was the standard local area contract, containing the
salaries, conditions of work, and health and welfare benefits
to which the employees would be entitled. Sutton said that
Frank & Frank would have no problem with the contract
provided that it not become effective until 6 months after the
close of escrow, and provided further that the picket line be
removed immediately. Loffredi agreed. Sutton stated that he
would review the contract, and that they had a deal. He
further stated that Frank & Frank would be taking posses-
sion on July 1, 1978, and he would get the contract back to
the Union within a week thereafter.
On or about July 17, 1978, Loffredi phoned Sutton and
inquired about the contract. Sutton said that a new partner,
Frank Colletto, had become involved in Frank & Frank and
that he would arrange a meeting between the Union and
Colletto. Several days later this meeting took place. Those
present were Loffredi and Felix for the Union and Sutton
and Colletto for Frank & Frank. Colletto said that he was
very busy and would like time to review the contract.
Thereafter another meeting was held between the same
four individuals. Colletto wanted to know more about the
contract and it was discussed. At this time Loffredi stated
that he did not believe all this was necessary as it had been
agreed that Frank & Frank would sign the contract.
Apparently at this meeting, although the record is somewhat
confusing on this point, Colletto stated that Sutton had no
authority to enter into a contract as he was not a partner,
but merely a general manager, that Colletto and Accetta
were the owners, and that Colletto was not going to be
shotgunned into signing an agreement.
In late September 1978, during the course of a phone
conversation, Loffredi told Sutton that he had given his
word about signing a contract and that was the reason the
picket line had been removed in June. Sutton said only
Colletto could resolve the matter, and another meeting was
scheduled for October 3, 1978.
The meeting was held on October 3, as scheduled, with
the same four individuals being present. Loffredi presented
Colletto with four copies of the same contract. Sutton
reiterated that the signing of a contract was up to Colletto
' Apparently, although the record is unclear, some 26 employees reinstated
their membership in the Union immediately prior to the strike.
' No copy was made of the cover letter due to inadvertence. However.
Colletto did not deny that he received the letter.
and, after a heated exchange, it was again agreed that Frank
& Frank would receive a 6-month extension from the close
of escrow, which apparently was scheduled for sometime in
December. Colletto insisted upon seeing the signed "Prin-
cess Louise" contract, that of a restaurant operation in
competition with Frank & Frank, which was represented by
the Union as being identical with the contract which had
been submitted to Frank & Frank. This was also agreed.
Finally, Colletto said he wanted a cover letter acknowledg-
ing the parties' agreement that the contract would be
effective 6 months after the close of escrow. Thereupon the
parties shook hands as they left, acknowledging that they
had an agreement.
Loffredi testified that a business agent, John Garcia,
delivered the Princess Louise contract to Colletto and that
Loffredi personally handed the aforementioned cover letter
to Colletto,' who said he was going to show it to Accetta,
sign it, and return it to the Union.'
Frank Accetta testified that, at the June 23, 1978,
meeting, Sutton introduced himself only as general manager
and did not agree to the signing of a contract. Rather,
according to Accetta, Sutton stated that, if the Union
removed the picket line, the Employer would negotiate when
escrow closed in about 6 months, and the Union agreed that
the Employer would receive what was embodied in the
"Ports O'Call" contract, then being negotiated by the
Union.
Colletto testified that at the July meeting he told the union
representatives "to relax, that they had taken the pickets off,
and that we would end up getting together with the idea, you
know, that sooner or later we would get a chance to
negotiate the thing." Colletto further testified that he did not
agree to sign the contract, as he had not had a chance to
review it. However, he acknowledged that the contract had
previously been given to him by Sutton.
Colletto testified that, at the October 3, 1978, meeting,
Loffredi insisted that Colletto sign the agreement. Colletto
refused and said he was there only to negotiate and again
stated. "[W]e will end up getting together on this thing." He
asked for the Ports O'Call contract, and the union represen-
tatives agreed to send one to him.' At the end of the meeting
they shook hands, and Colletto repeated that they should
not worry and that negotiations would take place in the
future.
Sutton did not testify in this proceeding, and Frank &
Frank did not offer any explanation for Sutton's absence.
Felix, on rebuttal, testified that the Union, at all times
material herein, did not represent a unit of Ports O'Call
employees and had no contract negotiations with that
employer. Loffredi corroborated this testimony and denied
that a Ports O'Call contract was mentioned during negotia-
tions.
C. Analysis and Conclusions
When Tasman Sea took over the operations of the
predecessor employer and commenced bargaining with the
' The testimony of Felix corroborated that of Loffredi in all material
respects.
' A few days later, according to Colletto. the Union sent him the Princess
Louise contract, rather than the Ports O'Call contract.
20
THE TASMAN SEA, INC.
Union, apparently only 11 of the 40 unit employees were
members of the Union despite a contractual union-security
clause making union membership, including the "payment
of initiation fees and regular monthly dues," mandatory.
Further, the predecessor employer was making health and
welfare payments on behalf of only 11 employees, whereas
the contract provided that payments would be made on
behalf of "each and all employees covered by this agree-
ment." Despite the foregoing, in January 1978 a majority of
the unit employees apparently reinstated their membership
in the Union or at least indicated, by signing certain
documents, that they desired continued union representa-
tion. Thereupon, a strike commenced, with only one part-
time employee withholding her services during the course of
the strike.
The foregoing considerations do not show that the Union,
at any time material herein, no longer enjoyed "majority
representative status." such language being defined as
meaning "that a majority of employees in the unit wish to
have the union as their representative for collective-bargain-
ing purposes." Bartenders. Hotel. Motel and Restaurant
Employers Bargaining Association of Pocatello. Idalro. 213
NLRB 651 (1974). Thus. the employees' failure to become
members of the Union. their apparent acceptance of the
Employer's failure to abide fully by the terms of the
contract, and the Union's failure to enfoirce the contractual
union-security clause do not sufficiently substantiate a good-
faith doubt of majority representative status as those terms
are defined above. See Bartenders. Hotel. Motel and Restau-
rant Amplovee'; Bargaining Association of Pocatello. Idaho,
supra: Cut ad Curl. Inc.. 227 NLRB 1869 (1977); and
Sambo's Restaurants, Inc.: and Sambo% Riverside. 212
NLRB 788 (1974). Nor does the fact that employees
refrained from engaging in strike activities signify that they
no longer desired union representation. particularly where,
as here. a majority of employees signed union membership
cards immediately prior to the strike. See Strange and
Lindsay Beverage. Inc.. et al., d/b/a Pp.si-Cola-Dr. Pepper
Bottling Co.. 219 NLRB 12(X) (1975): Allied Industrial
Workers, .4FL-CIO Local Urion No. 289 lCavalier Div. o'
Seeburg Corp. and Cavalier Corp.] v. N.L. R. B., 476 F.2d 868
(D.C. Cir. 1973), and cases cited therein at 881; and Idaho
Fresh Pac-Inc., 215 NLRB 676 (1974). Moreover, and of
primary importance, is the fact that at no time did Tasman
Sea question the Union's majority status. Rather, it contin-
ued to meet with the Union and attempted to negotiate
concessions from the Union throughout the period extending
from October 5, 1977, through January 1978. Such conduct
on the part of Tasman Sea belies its now untimely assertion
that it believed the Union no longer represented a majority
of unit employees.
The unrebutted record testimony conclusively shows that
throughout negotiations Tasman Sea steadfastly refused to
enter into a contract with the Union absent the Union's
written guarantee that Respondent be permitted to deviate
from the plain wording and intent of the contract by making
health and welfare payments on behalf of only 11 or 14 of
' The appropriate unit is described as follows:
All employees of Frank & Frank. Inc. d/b/a Tasman Sea at its San
Pablo, California facility, including waiters and waitresses, busboys,
dishwashers, bartenders, cocktail waitresses, cooks, chef, hostesses. motel
the 40 unit employees, providing no justifiable reason
therefor. Such insistence on the part of Tasman Sea is clearly
violative of the Act, having the effect of causing the Union to
breach its statutory obligation to fairly represent all unit
employees, not merely a selected few. See Southwestern Pipe,
Inc., 179 NLRB 364, 375-376, 384 (1969); International
Union of United Brewery. Flour, Cereal. Soft Drink and
Distillery Workers of America. AFL-CIO (Miller Brewing
Company), 195 NLRB 772 (1972); International Union,
Limited Automobile. Aerospace & Agricultural Implement
Workers of America. UA W. and its Local No. 1303 (Jervis
Corp., Bolivar Division), 192 NLRB 966, 970-971 (1971).
Neither the fact that the Union previously acquiesced in
such unlawful conduct nor the fact that the Union reluctant-
ly agreed to such an unlawful scheme as a result of
Respondent's insistence absolves Respondent from its statu-
tory bargaining obligations. B. Brown Associates Inc., 224
NLRB 929, 937-938 (1976).
It is an unfair labor practice, under certain circumstances,
for an employer to refuse to accede to a union's demand that
employees be discharged pursuant to the provision of a
lawful union-security agreement. See California Blowpipe &
Steel Company Inc., 218 NLRB 736 (1975); House of
Fabrics, Inc., 234 NLRB 1024 (1978); Montgomery Ward &
Co., Incorporated, 162 NLRB 369 (1966). A fortiori, to
require the Union's agreement as a condition precedent to
entering into a contract that it not seek to enforce such a
clause nullifies and renders illusory the plain meaning of the
contract, undermines the Union as the collective-bargaining
representative of employees, and is incompatible with good-
faith bargaining. By such conduct I find that Respondent
has violated Section 8(a)(5) of the Act, as alleged.
Frank & Frank has not questioned the status of the Union
as representative of the employees in the unit admitted to be
appropriate herein,' nor has it questioned its successor status
or its obligation to bargain with the Union.'
I credit the testimony of Union Representatives Loffredi
and Felix, who appeared to be forthright witnesses with a
clear recollection of the meetings and events in question.
Their testimony is bolstered by the fact that, subsequent to
the October 3, 1978, meeting, the Princess Louise contract
and covering letter, demanded by Colletto as conditions
precedent to executing the agreed-upon contract with the
Union, were delivered to him as promised. Moreover, it is
significant that Sutton, a principal party to the meetings, was
not called upon by Respondent to testify in this proceeding,
nor was his absence explained. Under these circumstances I
draw the inference that Sutton's testimony would have been
unfavorable to Frank & Frank. Bricklayers Local Union No.
I of Missouri, Bricklayers, Masons and Plasterers Interna-
tional Union, AFL-CIO (St. Louis Home Insulators, Inc.).
209 NLRB 1072, 1075 (1974); Wal-Lite Division of United
States Gypsum Co.. 200 NLRB 1098, 1100-1101, fn. 8
(1972); Goodyear Tire & Rubber Company Highway Trans-
portation Department, 190 NLRB 84, fn. 3 (1971), enfd. 456
F.2d 465 (5th Cir. 1972); Woodville Plant, Industrial
Products Division of Levingston Shipbuilding
maids, and motel clerks, but excluding guards and supervisors as defined
in the Act.
' N.L.R.B. v Burns International Security Services, Inc., 406 U.S 272
(1972); Virginia Sportswear. Incorporated. 226 NLRB 1296 (1976)
21
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, a Delaware Corporation, 224 NLRB 119, fn. I
(1979).
It is admitted that for approximately 3 months Frank &
Frank had in its possession the proposed contract submitted
by the Union. The fact that there may have been no give-
and-take bargaining between the parties does not mandate
the conclusion, as Respondent contepds, that there was no
meeting of the minds regarding the finalizing of an agree-
ment. Rather, the record clearly shows that Respondent
possessed and was aware of the specific provisions of the
contract proposed by the Union, and willingly accepted this
contract without modification upon receiving assurances
that a competitor was bound by the same collective-bargain-
ing agreement and, further, upon receiving a letter from the
Union setting forth that the contract would become effective
6 months after the close of escrow. Upon receiving the
requested documents, Respondent made no contention that
they were unacceptable or otherwise insufficient and was
thereupon obligated to execute the contract. Having failed to
do so, I find that Frank & Frank has violated Section 8(a)(5)
of the Act, as alleged. See N.L.R.B. v. Joseph T. Strong
d/b/a Strong Roofing and Insulating Co., 393 U.S. 357, 359
(1969); H. J. Heinz Co. v. N.L.R.B., 311 U.S. 514, 525-526
(1941); Deluxe Poster Co., Inc.. d/b/a Johnson Printers, 238
NLRB 335 (1978).
CONCLUSIONS OF LAW
I. The Tasman Sea, Inc., was, at all times herein, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Frank & Frank, Inc., d/b/a Tasman Sea, has been, at
all times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
4. The following units constitute appropriate units for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act:
All employees of The Tasman Sea, Inc. [or Frank &
Frank, Inc., d/b/a Tasman Sea], at its San Pedro,
California facility, including waiters and waitresses,
busboys, diswashers, bartenders, cocktail waitresses,
cooks, chef, hostesses, motel maids, and motel clerks,
but excluding guards and supervisors as defined in the
Act.
5. At all times material herein the Union has been the
recognized exclusive representative of the employees of both
named Respondents in the respective units found to be
appropriate herein.
6. By conditioning execution of a proposed collective-
bargaining agreement upon selective application of certain
lawful provisions thereof, The Tasman Sea, Inc., has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
7. By failing and refusing to execute a written contract
embodying the terms and conditions reached with the
I te event no exceptions are filed as provided by Sec. 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings,
conclusionls. and recommended Order herein shall, as provided i Sec. 102.48
Union, and by failing to abide by the terms of said contract,
Frank & Frank, Inc., d/b/a Tasman Sea, has engaged in
unfair labor practices in violation of Section 8(a)(5) and (1)
of the Act.
8. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
It is recommended that The Tasman Sea, Inc., its officers,
agents, successors, and assigns shall cease and desist from
conditioning execution of a proposed collective-bargaining
agreement upon the selective application of certain lawful
provisions thereof. As said Respondent is no longer engaged
in the business operations involved herein, it is recommend-
ed that it mail a copy of an appropriate notice to each unit
employee who was employed at the facility at any time
during the period between October 5, 1977, and the date it
discontinued its business operations. See Community Medi-
cal Services of Clearfield, Inc.. d/b/a Clear Haven Nursing
Home. 236 NLRB 853 (1978); and Sturgis-Newport Business
Forms, Inc., a Division of Litton Business Systems, Inc., et al.,
227 NLRB 1426, 1427, 1435 (1977), enfd. 563 F.2d 1252
(5th Cir. 1977).
It is recommended that Frank & Frank, Inc., d/b/a
Tasman Sea, cease and desist from its unfair labor practices
and take certain affirmative action designed to effectuate the
purposes of the Act. It is further recommended that it sign
the collective-bargaining agreement reached between it and
the Union, as described above, and give it retroactive effect,
that it make whole its employees for any loss of wages or
other employee benefits they may have suffered as a result of
its failure to sign the contract, and that it post an
appropriate notice. The loss of earnings together with
interest under the Order shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation. 231 NLRB 651 (1977) (see,
generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962)).
Upon the basis of the foregoing findings of fact, conclu-
sions of law and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER (Case 31-CA-7749)
The Respondent, The Tasman Sea, Inc., San Pedro,
California, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Hotel and Restaurant Employees and Bartenders Union
Local 11, AFL-CIO, by agreeing to enter into a collective-
bargaining contract only on the condition that the Union not
seek to enforce or selectively enforce certain provisions
thereof.
of the Rules and Regulations, he adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waised for all purposs.
22
THE TASMAN SEA. INC.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act:
(a) Mail a copy of the attached notice marked "Appendix
A"' to each employee who was employed at the facility at
any time during the period between October 5. 1977 and the
date it discontinued its business operations. Copies of said
notice, on forms provided by the Regional Director for
Region 31, shall be duly signed by an authorized representa-
tive.
(b) Make available to the Board or its agents, upon
request, all payroll or other records necessary to ascertain
the names and addresses of the aforementioned employees.
(c) Notify the Regional Director for Region 31, in writing,
Within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
ORDER (Case 31-CA-8644)'"'
The Respondent, Frank & Frank, Inc., d/b/a Tasman
Sea, San Pedro. California, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Hotel and Restaurant Employees and Bartenders Union
Local 11, AFL-CIO, by refusing to sign the collective-
bargaining agreement embodying the terms and conditions
of employment on which the parties had reached agreement
and by refusing to abide by the terms thereof.
(b) In any other like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act:
(a) Forthwith, upon request, sign the written contract
embodying the terms and conditions of employment on
which the parties had reached agreement.
(b) Upon execution of the aforesaid agreement, give
retroactive effect to the provisions thereof and make whole
its employees for any losses they may have suffered by
reason of Respondent's failure to sign the agreement. The
loss of earnings together with interest shall be computed in
the manner set forth in the section of this Decision entitled
"The Remedy."
(c) Make available to the Board or its agents, upon
request, all payroll or other records necessary to ascertain
the amounts of wages or fringe benefits to which the unit
employees may be entitled.
(d) Post at its place of business at San Pedro, California,
copies of the attached notice marked "Appendix B."'
Copies of said notice, on forms provided by the Regional
Director for Region 31, after being duly signed by Respon-
dent's authorized representative, shall be posted by it
immediately upon receipt thereof. and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced. or
covered by any other material.
(e) Notify the Regional Director fr Region 31. in writing.
within 20 days from the date of this ()rder. what steps
Respondent has taken to comply herewith.
'In the .cnt that thi, ()rdcr is Cnfirced hy a Judlgililn l ' ilitcd Staile,
Colurt of Appecals. the ,, ords in he Ilolice reading "'11,lcd h ()rdlcr I,' he
Nat;linal I.alhor Relation toard" hall read "lP(tced Purualntll 1o Jutegimelit
of the United Staltes Coulrt of Appeals Enforcing ;11 ()rder i'o Ih Nltlloial
Laibor Relation, l.ard
"' See fil X
S e il. t1)
APPENDIX B
NO-rICI To EMPI.OYITS
l'osrTu) HY ORDER O THE
NATIONAI. LAHOR Rl:ATIONS BOARI)
An Agency of the United States Government
After a hearing at which all parties had an opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, as amended. and has ordered us to post this notice.
The Act gives all employees the following rights:
To act together fr collective bargaining or mutual
aid or protection
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
their own choosing
To refrain from any or all of these things.
Wi; Wll . NOT refuse to bargain collectively in good
faith with Hotel and Restaurant Employees and Bar-
tenders Union Local 11. AFL-CIO. in the appropriate
unit set forth below. by refusing to sign the collective-
bargaining agreement embodying the terms and condi-
tions of employment on which it has been found we and
the Union had reached agreement.
Wl Wil.l. 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.
WI wll,. sign the aforementioned contract, upon
request, with Hotel and Restaurant Employees and
Bartenders Union Local I , AFL-CIO.
W wit ll give retroactive effect to terms and
conditions of the contract, and WE WILL make whole
our employees for any losses they suffered, including
loss of wages and benefits, by reason of our failure to
sign the contract. The appropriate unit is:
All employees of Frank & Frank, Inc., d/b/a
Tasman Sea, at its San Pedro, California facility,
including waiters and waitresses, busboys, dishwash-
ers, bartenders, cocktail waitresses, cooks, chef,
hostesses, motel maids, and motel clerks, but exclud-
ing guards and supervisors as defined in the Act.
FRANK & FRANK, INC., I)/B/A TASMAN SLA
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