Toffenetti Restaurant Company, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1962

136 N.L.R.B. 1156 (N.L.R.B. 1962)

1156- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, guards , and supervisors as defined in the Act, and all other
employees.
(b) All professional employees as defined in the Act,' excluding
guards and supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication.]
CHAIRMAN MCCULLOCH, concurring :
I concur in the result reached. The Petitioner represents the Em-
ployer's production and maintenance employees. It now seeks to rep-
resent all other unrepresented employees in two units. In one, it
would include professional employees. In the second, it would include
technical employees together with the office and plant clericals.
The parties are in agreement as to the separate professional unit.
The Employer does not object to the grouping of plant and office cleri-
cals employees but would exclude the technicals. The technicals are
classified as plant layout draftsmen, laboratory technicians, and stand-
ards clerks. They share substantial interests in common with the office
and plant clericals. For the foregoing reasons and because there is no
persuasive reason for further fragmentizing the groupings of the
Employer's employees with respect to their representation for pur-
poses of collective bargaining, I find that the technical employees, to-
gether with the plant and office clericals, may appropriately comprise
a residual unit.
MEMBERS LEEDOM and FANNING took no part in the consideration of
the above Decision and Direction of Elections.
production and maintenance contract , and may make limited adjustments in a rate at the
first level of the grievance procedure. On some occasions , they also prepare written
answers in later steps of the grievance procedure , but such answers must be approved by
signature of their supervisor . On occasion , they also assist their supervisor in preparing
statistical material for contract negotiations , which he prepares for the negotiators. In
view of their limited participation in the grievance procedure and contract negotiations,
we find that the standards clerks are not confidential . See Chapman Valve Manufactur-
ing Company , 119 NLRB 935, 937.
* The parties agree, and we find, that the nurses , plant layout engineers , plant layout
designers , and welding engineers are professional employees.
Toffenetti Restaurant Company, Inc. and Dining Room Em-
ployees Local 1, Hotel and Restaurant Employees and Bar-
tenders International Union , AFL-CIO. Case No. 2-CA-7874.
April 18, 1962
DECISION AND ORDER
On November 21, 1961, Trial Examiner Samuel Ross issued his
Intermediate Report in the above-entitled proceeding, finding that
136 NLRB No. 106.
TOFFENETTI RESTAURANT COMPANY, INC. 1157
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the General Counsel and the
Respondent filed exceptions to the Intermediate Report together with
supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman Mc-
Culloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner as modified below.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Toffenetti Res-
taurant Company, Inc., its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Unilaterally changing its profit-sharing plan, its customary an-
niversary or Christmas bonuses, or any other conditions of employ-
ment of the employees in the appropriate unit of all full-time and
regular part-time waiters, waitresses, and busboys in its New York
City restaurant, without bargaining with Dining Room Employees
Local 1, Hotel and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO.
(b) Discouraging membership in, representation by, or activities
on behalf of, the above-named Union, or any other labor organization
of its employees, by disqualifying employees from participation in its
profit-sharing plan because of union membership, by applying, ad-
ministering, or distributing the plan in a manner which discriminates
against employees because of membership in or representation by a
union, by denying bonuses or other benefits to employees because of
union representation, or in any other manner discriminating against
employees in regard to their hire or tenure of employment or any term
or condition of employment.
"The Respondent 's request for oral argument is denied inasmuch as the positions of
the parties are adequately set forth in the record , exceptions , and briefs
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Failing and refusing to furnish said Union with a copy of the-
Toffenetti Fifteen Year Profit Plan and all amendments thereto.
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-organization,
to form labor organizations , to join or assist the said Union , or any-
other labor organization , to bargain collectively through representa-
tives of their own choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from engaging in such activities , except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Upon request, make available to Dining Room Employees Local
1, Hotel and Restaurant Employees and Bartenders International
Union, AFL-CIO, a copy of the aforesaid profit-sharing plan and
any amendments thereto.
(b) Amend the profit-sharing plan to eliminate nonunion member-
ship as a requirement for eligibility, and the distribution provision
which discriminates against employees because of membership in a
union.
(c) Restore to the accounts in the profit-sharing plan of the em-
ployees represented by Dining Room Employees Local 1, Hotel and
Restaurant Employees and Bartenders International Union, AFL-
CIO, the amounts which were forfeited pursuant to the amendment
of the plan on November 1, 1960.
(d) Make whole the employees represented by the Union for the,
nonpayment of their 1960 Christmas bonus, by paying to each of their
the sum of money which results from applying the same formula and
earnings base which Respondent customarily used for computing-
bonuses for such employees, and the same percentage figure which
Respondent utilized in paying the 1960 Christmas bonus to the un-
represented employees.
(e) Upon request, bargain collectively with the Union regarding
the distribution or other disposition of the amounts restored to the
accounts in the plan of the employees in the aforestated unit pur-
suant to 2(c), above.
(f) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports,,
profit-sharing plan records , and all other records necessary to analyze
TOFFENETTI RESTAURANT COMPANY, INC. 1159
the amounts to be paid, and to be restored to profit-sharing plan
accounts, under the terms of this Order.
(g) Post at its restaurant at New York, New York, copies of the
notice attached hereto marked "Appendix A." 2 Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted by the Respondent immediately upon receipt
thereof, and be maiiitained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
,or covered by any other material.
(h) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
MEMBER RODGERS, concurring :
I concur in the result.
z In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in or activities on behalf
of Dining Room Employees Local 1, Hotel and Restaurant Em-
ployees and Bartenders International Union, AFL-CIO, or any
other labor organization, by disqualifying employees from par-
ticipation in our profit-sharing plan because of union membership,
by applying, administering, or distributing the plan in a manner
which discriminates against employees who are members of or
represented by a union, by denying bonuses or other benefits to
employees because of union representation, or in any other man-
ner discriminate against employees in regard to their hire, tenure,
or other terms or conditions of employment.
WE WILL NOT unilaterally change our profit-sharing plan, our
customary anniversary or Christmas bonuses, or any other term
or condition of employment of the employees in the following
appropriate unit without bargaining with Dining Room Em-
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees Local 1, Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO. The appropriate unit is :
All full-time and regular part-time waiters, waitresses, and
busboys in our New York City restaurant.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Dining
Room Employees Local 1, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition
of employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL, upon request, furnish Dining Room Employees Local
1, Hotel and Restaurant Employees and Bartenders International
Union, AFL-CIO, a copy of the Toffenetti Fifteen Year Profit
Sharing Plan and all amendments thereto.
WE WILL amend our profit-sharing plan to eliminate nonunion
membership as a requirement for eligibility, and the distribution
provision which discriminates against employees because of union
membership.
WE WILL restore to the account in our profit-sharing plan of
the employees represented by Dining Room Employees Local 1,
Hotel and Restaurant Employees and Bartenders International
Union, AFL-CIO, the amounts which were forfeited pursuant to
the amendment to the plan dated November 1, 1960.
WE WILL make whole the employees represented by Dining
Room Employees Local 1, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, for the nonpayment
of their 1960 Christmas bonus.
WE WILL, upon request, bargain collectively with Dining Room
Employees Local 1, ITotel and Restaurant Employees and Bar-
tenders International Union, AFL-CIO, regarding the distribu-
tion or other disposition of the amounts restored to the accounts
of the employees in the unit described above in our profit-sharing
plan.
All our employees are free to become or remain or to refrain from
becoming or remaining members of Dining Room Employees Local 1,
TOFFENETTI RESTAURANT COMPANY, INC. 1161
Hotel and Restaurant Employees and Bartenders International Un-
ion, AFL-CIO, or any other labor organization, except to the extent
that this right may be affected by an agreement in conformity with
Section 8 (a) (3) of the Act.
TOFFENETTI RESTAURANT COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 745 Fifth Avenue, New York 22, New York, Telephone Num-
ber, Plaza 1-5500, if they have any question concerning this notice
or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge of unfair labor practices duly filed against Toffenetti Restaurant
Company, Inc., herein called the Respondent or the Company, the General Counsel
of the National Labor Relations Board issued a complaint dated June 29, 1961,
alleging that the Company had engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a)(1), (3), and ( 5) of the National Labor Rela-
tios Act, as amended (61 Stat . 136, 73 Stat . 519), herein called the Act. In sub-
stance, the complaint alleges that after Dining Room Employees Local 1, Hotel
and Restaurant Employees and Bartenders International Union, AFL-CIO, herein
called the Union , was certified by the Board as the collective -bargaining representa-
tive of the Company's waiters, waitresses , and busboys at its New York City restau-
rant, Respondent , without notice to or consultation with the Union , unilaterally
amended its profit-sharing plan in which said employees were participants , refused
to furnish the Union with a copy of the profit -sharing plan, discriminated against
employees by denying eligibility to participate in the plan to union members, and
by providing for the forfeiture of all or part of union members ' shares therein, and
further discriminated against employees by paying a Christmas bonus to all employees
except those in the unit represented by the Union.
The Respondent filed an answer denying that the Union is a labor organization,
that the unit certified by the Board is appropriate, and the substantive allegations of
the complaint , and affirmatively pleading 10 affirmative defenses.' Pursuant to due
notice, a hearing was held before Samuel Ross, the duly designated Trial Examiner,
in New York, New York, on July 24, 25, 27, and 28, 1961 . All parties were repre-
sented at the hearing by counsel and were afforded full opportunity to be heard, to
introduce evidence , to examine and cross-examine witnesses , to present oral argu-
ment, and to file briefs . On September 11, 1961, a brief was filed by the General
Counsel, which I have carefully considered.
Since the close of the hearing , I have received a motion by Respondent to accept
a "newly discovered" exhibit in evidence , to "invalidate" the Union's petition for
certification as the representative of Respondent 's waiters , waitresses , and busboys
and all proceedings thereunder, including the election , the Board 's certification of
the Union , as well as the collective -bargaining agreement between Respondent and
the Union , to strike some of the General Counsel 's exhibits in evidence , to correct
' On motion of the General Counsel at the hearing , I dismissed and struck the "eighth"
and "ninth " affirmative defenses which alleged that the Union " is guilty of unfair labor
practices ," and that the Act is unconstitutional
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inaccuracies in the transcript ,2 to dismiss the complaint , and for other relief, and
I have also received a supplemental statement of Respondent in support of said
motion, and the General Counsel 's answer to the said motion and supplemental
statement of Respondent . The said motion will be hereinafter considered and deter-
mined in accordance with the findings and conclusions herein.
Upon the entire record in the case, and from my observation of the witnesses
and their demeanor , I make the following:
FINDINGS OF FACT
I. COMMERCE
The Company , an Illinois corporation , is engaged in the city of New York, New
York, and at various places in the State of Illinois , in the operation of restaurants
serving food and beverages , and in providing catering and related services . During
the past year , a representative period, the gross revenue of the Company's New
York City restaurant was in excess of $500,000. During the same period , the Com-
pany purchased and caused to be transported to its New York City restaurant from
places outside the State of New York, food, beverages , and other goods and materials
valued in excess of $ 500,000. On the foregoing admitted facts, I find and conclude
that the Company is engaged in interstate commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The uncontradicted evidence discloses that Dining Room Employees Local 1,
Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO,
is an organization in which employees participate , which exists for the purpose of
dealing with employers concerning grievances , labor disputes , rates of pay, hours
of employment , and other conditions of employment . Accordingly, I find that the
Union is a labor organization within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Respondent's hostility to the organization of its New York City restaurant
On February 29, 1960, the Union filed a petition with the Board for certification as
the collective-bargaining representative of the waiters , waitresses, and busboys at
Respondent 's New York restaurant .3 On March 14 and 17, respectively,4 Bar-
tenders Union of New York City , Local 15, AFL-CIO, a sister local of the Union,
petitioned the Board for certification as the representative of the bartenders, and
Chefs, Cooks , Pastry Cooks and Assistants Union, Local 89, AFL-CIO, petitioned
to represent the kitchen employees in Respondent 's said restaurant . 5 On March 22,
2 Insofar as the motion is addressed to inaccuracies in the transcript, the following
corrections are hereby granted and noted
Page 52 , line 7, "mentioned" coi rected to "merged
Page 64, lines 11-12 "mentioned" corrected to "merged."
Page 165, lines 21 and 23 , "G C Exhibit 2" corrected to "G C Exhibit 2A
Page 279, line 15, " Mr Cobin" corrected to "Miss Teitelbaum "
Page 279, line 17 , " Mr Cobin" corrected to "Miss Teitelbaum "
Page 308, line 22, "Yes, sir" corrected to "No, sir "
Page 313, line 22, "Toffenetti " corrected to "the Union
Page 318, line it, insert "not" between "may" and "be used "
Page 321, line 7, "October 24th " corrected to "October 14th "
Page 325, line 3 , "employer" corrected to "employees
Page 327 , line 4, "Exhibit 4 " corrected to "Exhibit 5
Page 471, lines 5 and 10 , "Mr Toff" corrected to "Mr Toffenetti "
Page 474, line 9 , "Mr Toff" corrected to "Mr Toffenetti "
Page 486, line 5 , " Air Toff" corrected to "Mr Toffenetti "
Page 522, line 21, "constricted" corrected to "convicted "
Page 526, line 19, "April 26" corrected to "May 26
Page 527, line 2, "1960" corrected to "1961 "
Page 527 , line 24, "5 year plan" corrected to "15 year plan."
Other than the foregoing, all other corrections requested by Respondent are denied.
9 Case No 2-RC-10533 ( not published in NLRB volumes)
4Unless otherwise noted , all dates hereinafter refer to the year 1960
e Cases Nos . 2-RC-10594 and 2-RC-10606 ( not published in NLRB volumes).
TOFFENETTI RESTAURANT COMPANY, INC. 1163
Respondent entered into stipulations , signed by D. L . Toffenetti , chairman , for certi-
fication upon consent election in all three cases. In the case of the Charging Union,
the unit which was stipulated by the parties was:
All full-time and regular part-time waiters, waitresses and busboys employed at
its [Respondent 's] New York restaurant.
Respondent conducted a vigorous campaign to defeat the three unions at the elec-
tion . In a series of letters to the employees , some mailed and others distributed
with their ' checks, )Mr. Toffenetti outlined "16 benefits," including twice a year
bonuses and a profit-sharing plan, which the employees received from him without
any union, and exhorted the employees to join "His Crusade and Loyalty Parade,"
by voting "For Toffenetti" and for "No Union." 6
The elections in all three units were conducted on April 29. Notwithstanding Re-
spondent 's efforts to defeat it , the Charging Union received a substantial majority of
the votes cast by the waiters, waitresses , and busboys ,7 and was certified by the Board
on May 9. In the other two units , the respective unions were defeated.8
On May 2, in a letter to his employees , Mr. Toffenetti expressed his disappoint-
ment with the results of the elections , as follows: "I admit to you that my heart is
heavy. It is full of love for those who supported me [by voting against the unions]
and full of sorrow for those who did not feel as I felt." The letter also stated, "To
those of you who supported me and felt as I did I humbly give my thanks for your
loyalty and trust in me."
B. The contract negotiations between Respondent and the Union
Following its certification, on May 19, the Union forwarded to Respondent's then
attorneys , its "demands for a labor agreement ." The demands consisted of a pro-
posed increase in wages for Respondent 's waiters , waitresses , and busboys, and a
copy of the Union's master agreement with other employers , which included a provi-
sion for the continuation of existing benefits and privileges . The Union 's letter
forwarding these demands specified that by this clause, "we include bonuses and the
so-called Profit Sharing Plan ." Negotiations for a contract were conducted at the
offices of Respondent 's counsel during June and July . The negotiations resulted in
the execution on October 14 of a union -shop collective -bargaining contract between
Respondent and the Union.
By the terms of the contract executed by the parties , Respondent recognized the
Union as the exclusive representative of the waiters , waitresses , and busboys at its
New York City restaurant for a period of 3 years. The employees in the unit received
a $3 per week increase retroactive to June 7, and additional wage increases of $1.50
per week in June 1961 and June 1962 . The contract granted the unit employees four
paid holidays during the first 2 years of the contract , and five during the last year .9
Commencing with December 1, 1961, Respondent undertook to contribute to the
Union's welfare fund to provide death, surgical , hospital, and other benefits for the
unit employees . 10 Respondent also agreed that on and after July 1, 1961, it would
commence paying the total cost of disability benefits,ii and commencing with Janu-
ary 1, 1962 , Respondent would contribute to the Union 's industrywide pension fund.
The written agreement of the parties made no mention as to whether bonuses for
the employees in the unit would be continued or discontinued , no provision for the
continuation of existing benefits and privileges such as that proposed in the
Union's "master agreement," and no reference to the Company 's profit-sharing plan.
6 Since I regard these letters, and Mr Toffenetti 's later postelection letter , as relevant,
material , and admissible to show Respondent ' s hostility to the unions , Respondent 's post-
hearing motion to strike them on the ground that they are protected free speech within
the meaning of Section 8(c) of the Act is denied See N L.R R. v. Chicago Apparatus
Company, 116 F 2d 753, 757 (CA 7), where the court said* "It may have been an exer-
cise of [Respondent ' s] Constitutional right of free speech and yet illuminative as evidence
of motive , intent , and attitude toward the labor union activities of the employees
7 The vote was 84 for the Union , 36 against , and 2 ballots were challenged
8 The vote in the bartenders ' unit was 0 for the Union , and 3 against , in the kitchen
employees ' unit, 35 for the Union , 56 against , and 21 challenged ballots, insufficient to,
affect the results of the election.
b Prior to the agreement , Respondent ' s employees received three paid holidays
10 Prior to the agreement , the employees were covered by Blue Cross-Blue Shield insur-
ance , the cost of which was borne principally by Respondent and partly by the employees
11 Before the contract , Respondent 's employees contributed to the cost of such benefits.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record of the negotiations concerning these matters will be reported and con-
sidered hereinafter.
C. The Christmas bonus paid in 1960 to all employees except those represented
by the Union
For the past 19 years, Respondent has regularly given bonuses to all its New York
City restaurant employees. Prior to 1952 or 1953, the bonuses were paid quarterly,
but since then and until the advent of the Union, the number of such bonuses were
two each year, an anniversary bonus in August, and a Christmas bonus in December.
In recent years, the bonuses were generally 3 percent of their earnings for the general
help, and 5 percent for the waiters and waitresses.12 However, on occasions, the
percentage would vary dependent upon the total amount which Respondent allo-
cated for bonus payments.
As noted above, the Union's initial demands included the continuation of bonuses.
During the contract negotiations , the Respondent offered a wage increase of first $1
and later $2 per week. The union representatives inquired whether the Company's
offer was in addition to bonuses. Respondent's counsel replied that bonuses were a
gift from the Company to its employees and not subject to negotiation. The Union's
representatives replied that the employees had received bonuses for 20 years and
had come to expect them as part of wages, that the bonuses were calculated on a
percentage of the employees' wages, that the bonuses had approximated $2 per week
on an annual basis, and that unless bonuses were continued, the Company's offer of a
$2 per week wage increase was, in fact, no increase over the wages previously
received by the employees. Respondent's Counsel Carb then replied that even before
the advent of the Union, the Company had received a report from the firm of
Horvath and Horvath 13 which had recommended the elimination of bonuses,
and that, therefore, there would be no bonuses for any employees that year. Carb
further stated, "Of course, in the future, should business warrant it, bonuses would
be given again to all employees." 14 There was no further discussion of bonuses
during the contract negotiations.
Notwithstanding the foregoing statements of Respondent's counsel in December,
Respondent gave a bonus amounting to 2 percent of their earnings to all its New
York City restaurant employees except those in the unit represented by the Union.
Normally, when Respondent gave a bonus to its employees, Mr. Toffenetti an-
nounced it in a speech to the employees. On this occasion, Toffenetti assembled the
employees as usual and delivered a speech. According to the uncontradicted and
credited testimony of Respondent's waiters Kemper and Dagger, Toffenetti told the
employees that during the past year, the Respondent had encountered "trouble,"
a reference to the Board's elections, but that now he wanted "peace and harmony";
he was "sorry in his heart" for those who voted against him, and he would be
everlastingly grateful to those who voted for him; he did not wish to discriminate
against anyone, but wanted everyone to feel as if they were in one big house, his
home; he announced that he was giving all the employees a wallet for Christmas, and
expressed the hope that they would all enjoy the holiday with their families. During
the speech, Mr. Toffenetti made no reference to any bonus payment. Immediately
following the speech, however, when the employees lined up and were given wallets
and their regular paychecks, the employees not in the unit represented by the Union
were also given bonus checks, but those in the Union's unit received no bonus.
Within a short time, Dagger, who was shop steward for the Union, learned of
Respondent's disparate treatment of the represented employees, and protested to Mr.
Toffenetti "about [the] discrimination" in "issuing bonus checks to the general
help and omitting the union help " Toffenetti replied, "Well, if you had come to
me in the first place, you wouldn't have this trouble." Then he added, "Well, after
all, it is more or less to equalize the pay." Dagger responded, "Mr. Toffenetti, for
every raise that Local 1 was given, every day off, all overtime, you have gone along
1a The higher percentage figure for waiters and waitresses was intended to more or less
equalize their bonuses with that of the general help, since the latter's salaries were higher.
1S The record is not clear as to whether Horvath and Horvath are accountants or
efficiency experts
14 The foregoing findings are based on the credited testimony of General Counsel's wit-
nesses, David Kemper and E Sarni Zucca Respondent's General Manager Coscette testi-
fied that the discussion regarding the elimination of bonuses was limited to the repre-
sented employees only, and did not refer to the other employees in the restaurant I do
not credit Coscette's testimony in this respect, since I regard his testimony generally as
evasive, self-contradictory, and unreliable
TOFFENETTI RESTAURANT COMPANY, INC. 1165
with the general help and gave them the same thing." Mr. Toffenetti then answered,
"I have always given bonuses to my loyal employees." 15
In January 1961 , the Union 's Business Agent Jordan Pola and Dagger met with
Mr. Toffenetti and again protested the "discriminatory act" of Respondent in giving
a bonus "to the kitchen department and nothing . to the dining room depart-
ment." On this occasion , Mr. Toffenetti repeated the assertion that the bonus was
a "wage equalizer."
D. Concluding findings in respect to the 1960 Christmas bonus
The complaint alleges that Respondent's disparate bonus treatment of the em-
ployees represented by the Union was discriminatorily motivated and a violation of
Section 8(a)(1), (3), and (5) of the Act. The uncontradicted record persuasively
supports the conclusion, which I make, that the denial of the bonus to the employees
represented by the Union was motivated by antiunion considerations. I base this
conclusion on the following:
For at least 19 years, Respondent had maintained an unbroken record of giving
Christmas bonuses to all his employees. In his vigorous opposition to the unions dur-
ing the election campaign, Toffenetti had referred, inter alia, to the Christmas bonus
as one of the "guaranteed" benefits which employees enjoyed without the necessity
,of a union. After the election, Toffenetti expressed to the employees his disappoint-
ment with the results, his thanks for the "loyalty and trust" of those who "supported"
him, and his "sorrow" for those who did not. During the bargaining negotiations,
Respondent had opposed the inclusion of a clause contractually requiring the Com-
pany to continue the "guaranteed" bonuses for the represented employees, stated
there would be no bonuses for any employees that year because of an adverse report,
but assured the Union that if business warranted, bonuses would again be paid to all
employees. Notwithstanding this assurance, about 1 month after the contract was
executed, Toffenetti instructed his bookkeeper to compute bonuses for only the non-
represented employees. In the speech to the employees which immediately preceded
the disparate bonus payments, Toffenetti disclosed that the disappointed election re-
sults still rankled him, by his reference to the "trouble" which Respondent had en-
countered that year, and by his reiteration of gratitude to those who "voted for him"
and "sorrow" for those who voted "against him [for the Union]." Contrary to his
usual practice, Toffenetti made no reference to the bonus which he was about to
distribute to the unrepresented employees. That he was evidently aware that the
disparate bonus payments would be regarded as discriminatory, is evident from his
statement during the speech that he did not want to discriminate against anyone.
Directly after the speech, when the Union's shop steward protested the discriminatory
bonus payments, Toffenetti clearly disclosed his antiunion motivation therefor. His
first response, "Well, if you had come to me in the first place, you wouldn't have this
trouble," obivously meant that the represented employees would not have been
disparately treated if they had aired their grievances to Toffenetti instead of electing
to be represented by the Union. Toffenetti's further statement to the union shop
steward, "I have always given bonuses to my loyal employees," viewed in the context
of Toffenetti's prior use of the term "loyal" as denoting employees who voted against
the petitioning unions, further emphasizes that Toffenetti regarded the represented em-
ployees as not loyal, since none of them, including those who voted against the Union,
received the bonus, whereas the loyal employees were those who collectively rejected
union representation, notwithstanding that some of them had voted for the unions
which lost their elections. The foregoing considerations, without more, adequately
support my conclusion that Respondent's disparate bonus payment was motivated
by antiunion considerations.
This conclusion is, moreover, buttressed by the complete absence of any factual
basis for Toffenetti's further statement to the union shop steward, that the bonus for
the unrepresented was intended "to equalize [their] pay" with that of the employees
represented by the Union. The record in this respect discloses that: (1) coincident
with the $3 per week raise given to the employees covered by the Union 's contract
with Respondent, the latter voluntarily gave raises of $2 per week to some and $3
per week to the balance of the unrepresented employees; (2) the unrepresented em-
ployees were given a further raise of $1.50 per week in 1961 at the same time that
the represented employees were given a like raise pursuant to the contract; (3) many
of the employees not represented by the Union also received other increases in wages,
some because of changes in duties, and others for reasons not disclosed by the record;
15 The foregoing is based upon the uncontradicted and credited testimony of Dagger,
corroborated by Kemper, who overheard part of the conversation. Mr Toffenetti, although
present at the hearing, was not called to testify.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) that coincident with Respondent's contributions to the Union's welfare fund on
behalf of the represented employees as required by the contract, Respondent expanded
the Blue Cross-Blue Shield coverage of the unrepresented employees and absorbed
all of the increase in premiums for such expanded coverage; 16 (5) the monthly con-
tribution of Respondent to the Union's welfare fund and the Company's share of the
premiums for the Blue Cross-Blue Shield insurance for the unrepresented employees
are substantially the same; (6) the Respondent has, since the execution of the union
contract, given its unrepresented employees the same paid holidays which it has given
to the employees represented by the Union pursuant to the contract, and (7) finally,
the total amount which Respondent made available for the bonus given to the unrep-
resented employees was an arbitrary figure, supplied by Toffenetti to his bookkeeper,
without any consideration of the comparative cost to Respondent of the benefits se-
cured by the represented employees under the contract, and the cost of the like
benefits which Respondent had voluntarily granted to its unrepresented employees.17
All of the foregoing considerations persuade me, and I accordingly find, that contrary
to Toffenetti's statement to the Union's shop steward, the bonus to the unrepresented
employees was not given to equalize their pay with those of the represented
employees.
In view of my conclusion that the discrimination in respect to the bonus payments
was motivated solely by the union representation of Respondent's waiters, waitresses,
and busboys, it is clear that Respondent thereby violated Section 8(a)(3) and (1) of
the Act. Moreover, it is uncontradicted that the Respondent did not consult with the
Union when it unilaterally determined not to pay the Christmas bonus to the em-
ployees represented by the Union. Such unilateral action by the Respondent in re-
spect to the wages and working conditions of the represented employees also clearly
violated Section 8(a)(5) and (1) of the Act,18 unless there be merit to Respondent's
defenses, which I shall now consider.
1. The defense of inappropriate unit
As noted above, the unit for which the Union was certified by the Board was
stipulated in the representation case. Thereafter, Respondent raised no question
regarding the appropriateness of the stipulated unit, either before the Board or dur-
ing the contract negotiations. Moreover, Respondent recognized the Union as the
representative of its employees in the certified unit in the collective-bargaining con-
tract between the parties. Respondent's present assertion regarding inappropriate-
ness of the unit, raised for first time in its answer herein, is that the unit should
have included hosts, hostesses, and cashiers. Respondent has not and does not now
assert that there has been any change of duties or of organization in the restaurant
which makes the certified unit no longer appropriate. It bases its contention of
inappropriateness on the fact that the Union's charter authorizes the latter to rep-
resent hosts, hostesses, etc., and that the Union's master agreement discloses that the
Union generally represents employees in such classifications It is quite apparent
that even assuming their materiality, these facts were ascertainable by Respondent
at the time of the representation proceeding and thus are not newly discovered
evidence. It is well settled that absent a change of facts affecting a prior unit deter-
mination, or the discovery of evidence not available to Respondent in the representa-
tion proceeding, the Board will not permit relitigation or redetermination of the
unit issue in unfair labor practice proceedings.19 This rule applies equally where
the unit determination was based upon the consent of the employer.20 Accord-
ingly, I conclude that the contention of Respondent regarding the inappropriateness
of the unit certified by the Board is without merit, and I find that the unit, herein-
before described under section III, A, of this report, is an appropriate unit for the
purpose of collective bargaining.21
18 See footnote 10, supra
17 The foregoing is based on the testimony which I credit of Helen Dandurand, Respond-
ent's bookkeeper She later gave contradictory testimony that some comparative cost
figures were computed, but her latter testimony was vague and confused and I do not
credit it
18 May Department Stores d/b/a Famous-Barr Company v N.L R B , 326 U S 376, 384
>s National Carbon Company, a Division of Union Carbide and Carbon Corporation
(Edgewater Works), 110 NLRB 2184
20 The Baker and Taylor Co, 109 NLRB 245
21 For the same reasons, I also deny the motion of Respondent, made after the close of
the hearing, to accept into evidence as Respondent's Exhibit A, a copy of the Union's
"master agreement," and its motion to invalidate the "petition for certification" in Case
No. 2-RC-10533 (not published in NLRB volumes), the "consent election" held on Apiil 29,
TOFFENETTI RESTAURANT COMPANY, INC. 1167
2. The defense of waiver
Respondent's answer affirmatively alleges "that [the] events leading up to the
signing of the collective-bargaining agreement constituted a waiver and acquiescence
by the Union of the elimination of said bonuses . . . for said employees, members
of [the Union] .. In support of this contention, Respondent relies on the case
of N.L.R.B. v. Nash-Finch Company, 211 F. 2d 622, 626, 627 (C.A. 8) .22
In the Nash-Finch case, during negotiations for a contract, the union had proposed
a "maintenance of standards" clause (substantially similar to the "existing benefits
and privileges" clause proposed by the Union herein), which the employer rejected.
The employer later discontinued insurance and bonuses for the employees covered
by the union contract, but continued these benefits for the unrepresented employees.
In rejecting the Board's findings of violation of Section 8(a)(1), (3), and (5) of
the Act, the court, relying on the fact that the unrepresented employees had not re-
ceived the wage increases provided by the union contract, concluded that without
more, the disparate treatment of the represented employees in respect to insurance
and bonuses, was insufficient to establish antiunion motivation for the discontinu-
ance of these benefits for the represented employees. In effect, the court further held
that by the bargaining negotiations, including the proposed "maintenance of stand-
ards" clause, its rejection by the employer, and the absence of any provision requir-
ing continuance of insurance and bonuses in the contract, the union had waived its
right to bargain as to these matters for the duration of the contract. The court said:
Where parties to a contract have deliberately and voluntarily put their en-
gagement in writing in such terms as import a legal obligation without uncer-
tainty as to the object or extent of such engagement, it is conclusively pre-
sumed that the entire engagement of the parties and the extent and manner of
their undertaking have been reduced to writing.
The respondent, we think, may not be convicted of an unfair labor practice
for doing no more and no less for its union employees than its collective bar-
gaining agreement with them called for.
It seems to us that what the Board has done, under the guise of remedying
unfair labor practices, is to attempt to bestow upon the respondent's union em-
ployees the benefits which it believes the Union should have obtained but failed
to obtain for them as a result of its collective bargaining with the respondent on
their behalf.
This language of the Nash-Finch case was cited with approval by the Court of
Appeals for the Ninth Circuit in Intermountain Equipment Company, supra, where
the court rejected the Board's findings of 8(a)(1) and (3) violations based on an
employer's discontinuance of sick leave and bonuses for represented employees, while
continuing such benefits for his unrepresented employees. In Intermountain as in
Nash-Finch, the court stressed the absence of any evidence of discriminatory moti-
vation for the employer's action, and the fact that the represented employees had
received substantial benefits under the union contract which the unrepresented em-
ployees had not received.
The Speidel case, supra, also involved a charge of violation of Section 8(a)(1),
(3), and (5) of the Act, based on bonuses paid to unrepresented employees which
were denied to employees represented by a union. The record in the Speidel case dis-
closed that the employer paid the bonus to unrepresented employees because of his
concern, explained to the union, of the imbalance created by the "gap in salary
structure" between the represented and unrepresented employees. Based on this
record, the Board concluded that such disparate payment, in cases where the union
is not the exclusive bargaining agent of all the employees, was not, in itself, sufficient
to establish discriminatory motivation. The Board, reaffirming its like decision in
Anheuser-Busch, Inc.,23 noted that this question had not been passed upon, but had
been expressly reserved by the Supreme Court in The Radio Officers' Union of the
Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company) v.
N.L.R.B.24 The Board also concluded that the record of the negotiations regarding a
1960, the stipulation of the parties in that proceeding, the Board's certification, and "all
other acts ensuing therefrom including the collective-bargaining contract dated October
14, 1960."
22 For similar holdings, see also Intermountain Equipment Company v. N L R B , 239
F. 2d 480 (CA 9) ; and Speidel Corporation, 120 NLRB 733
w 112 NLRB 686.
24 347 U.S. 17.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposed "maintenance of privileges" clause disclosed a "clear understanding between
the parties that the subject of bonuses would remain a'management prerogative,' " and
that under the circumstances, "the Union had `bargained away' or waived, its interest
in the matter of bonuses."
Notwithstanding their many similarities, I regard all three of the foregoing hold-
ings inapposite to the facts in this case. In all three of the above cases, in arriving
at their conclusions, that the disparate treatment of the represented employees in
respect to bonuses and other benefits was not discriminatory within the meaning of
the Act, the courts and the Board relied principally on: (1) the absence of any inde-
pendent evidence of discriminatory motivation, and (2) on the existence of a wage or
salary imbalance in favor of the represented employees as the result of benefits
secured by the union contracts. Neither of these factors on which the above cases
were bottomed is present in this case. As found above, the record herein clearly
discloses Respondent's antiunion motivation for the disparate bonus payments by
substantial evidence independent of the bonus payments alone. Moreover, as also
found above, there was, here, no imbalance between the represented and unrepre-
sented employees which made a bonus to the latter alone necessary to equalize their
pay and other benefits, because Respondent had voluntarily given comparable wage
increases and other benefits to the unrepresented employees coincident with the bene-
fits secured by the Union through its contract. The foregoing considerations per-
suade me that the holdings in Nash-Finch, Intermountain, and Speidel are inapplicable
to the facts in this case.
Moreover, the record in this case does not support the Respondent's contention
that the Union, by the course of the negotiations, waived its right to bargain over
bonuses for the represented employees. Although it is true that the Union had
suggested and proposed a clause in the contract for the continuation of "existing
benefits and privileges" which clearly included bonuses, and that clause was not
accepted by Respondent and is not part of the contract, this resulted not from any
waiver on the part of the Union regarding continuation of bonuses. On the con-
trary, the record shows that the Union did not desist from pressing for the continu-
ation of bonuses for the represented employees until Respondent's counsel advised
the Union that there would be no bonuses for any of the employees, whether repre-
sented by the Union or not, because of the Horvath and Horvath report, and assured
the union representatives that bonuses would again be paid to all employees with-
out discrimination when business conditions warranted. Although the Board has
"held repeatedly that statutory rights may be waived by collective bargaining, it has
also held that such a waiver `will not readily be inferred' and that there must be
`a clear and unmistakable showing' that the waiver occurred " 25 Under the cir-
cumstances here, the only waiver, if indeed any can be inferred from the negotiations,
was merely that Respondent was free of any contractual obligation to maintain
bonuses for the duration of the contract. The assurance given by Respondent to the
Union that when business warranted, bonuses would again be paid to all employees,
negates any possible inference that the Union either waived bonuses, or its right to
bargain with Respondent regarding bonuses for the represented employees when the
latter resumed its prior practice of giving bonuses.
Moreover, even assuming, arguendo, that the Union waived its right to bargain
about bonuses for the duration of the contract, Respondent was not thereby free to
deny bonuses to the represented employees because of antiunion motivation. Al-
though the Union could waive its right to bargain about bonuses and thus leave Re-
spondent free to act unilaterally in this respect without violating Section 8(a)(5) of
the Act,26 it would be clearly contrary to the public policy expressed in Section
8(a)(1) and (3) of the Act, to hold that because of such waiver, Respondent could
with impunity engage in proscribed interference and discrimination in derogation of
the basic rights of the represented employees.
For all the foregoing reasons, I conclude that Respondent's affirmative defense,
of waiver is without merit. Accordingly, I conclude that by unilaterally discon-
tinuing bonus payments to the represented employees because of antiunion con-
siderations, Respondent thereby engaged in unfair labor practices within the mean-
ing of Section 8(a) (1), (3), and (5) of the Act.
E. The Company's profit-sharing plan
In September 1948, Respondent instituted an informal plan to share the profits of
its New York City restaurant with its employees. On July 16, 1956, Respondent
sr Beacon Piece Dyeing and Finishing Co , Inc., 121 NLRB 953, 956 ; cf. Mastro Plastics
Corp, and French-American Reeds Mfg Co, Inc v. N.L.R B, 350 U S 270, 279-284
m Beacon Piece Dyeing and Finishing Co., Inc., supra.
TOFFENETTI RESTAURANT COMPANY, INC. 1169
formalized its profit-sharing plan by an agreement and declaration of trust entitled the
"Toffenetti Fifteen Year Profit Sharing Plan." In connection with the new trust
agreement, the Respondent made a contribution of $70,000 out of its profits for the
fiscal year ending July 31, 1956,27 and agreed to contribute 15 percent of its profits
for each fiscal year thereafter, but not more than was allowable as a deduction from
its Federal income tax under the provisions of the Internal Revenue Code relating
to qualified profit-sharing plans. The trust agreement (General Counsel's Exhibit
No. 3-A), a comprehensive document, contains provisions for eligibility to par-
ticipate in the plan, for setting up separate accounts for each participant, and for
computing and recording in each participant's account, his share of the Company's
contributions and of the gains or losses of the plan. The trust agreement also sets
forth the circumstances under which, and the times when, distribution and payment
of the participant's shares are to be made. In brief, the plan provides that: (1) all
employees of the restaurant who had 2 years of continuous employment wtih Re-
spondent on August 1, 1955, and all other employees, upon completion of 2 fiscal
years of such employment, are "eligible to become participants in the plan"; (2) the
"normal distribution date" of the participant's share in the plan shall be upon com-
pletion of 15 years of participation, or upon arrival at age 65, whichever is sooner;
(3) earlier distribution of the participant's share will be made to him, or his bene-
ficiary or estate as the case may be, in the event of permanent disability, death, or
dismissal from the Company's employ through no fault of his own; (4) an employee
who is discharged for "aggravated misconduct" forfeits his share in the plan; and
(5) the shares of participants in the plan who quit Respondent's employ, or who are
discharged for misconduct other than "aggravated misconduct," shall be recomputed
or "restated" at a percentage of the amounts credited to their accounts in accordance
with a schedule based on the number of years which such employees were participants
in the plan at the time of such resignation or dismissal, as follows; less than 5 years
of participation, 0; 5 years but less than 6 years of participation, 50 percent; and an
additional 5 percent for each year of participation, up to 100 percent if the employee
had 15 or more years of participation. However, such restated amount would not
be paid until either the participant's normal distribution date, or his earlier death or
permanent disability.
F. The negotiations between Respondent and the Union in respect to the profit-
sharing plan
The record of the negotiations in respect to the profit-sharing plan, for the most
part uncontradicted, discloses and I find the following:
The Union proposed that in addition to continuing the profit-sharing plan, Re-
spondent should also contribute to the Union's pension fund for the represented
employees. Respondent objected to contributing to both. The Union insisted that
contribution by the Company to its pension fund was a "must." The parties then
agreed that commencing with January 1, 1962, Respondent would commence con-
tributing to the Union's pension fund on behalf of the employees in the unit, and, in
consideration therefor, the Respondent would eliminate the employees in the unit
from its profit-sharing plan and would promptly distribute to them, subject to
Treasury Department approval, their "vested accounts" or "vested interests" in the
said plan in accordance with its terms.28 However, the plan as then constituted,
contained no provision creating "vested" accounts or interests for any participants
except for those who remained in the plan after age 65 or 15 years of participation,
whichever was sooner'29 and the only provisions in the plan relating to distribution
and fixing the amounts to be distributed, applied to participants who reached their
"normal distribution date," were discharged without fault, died, or became per-
manently disabled.
On a number of occasions during the negotiations, the union representatives asked
to see the plan in order to ascertain its terms, but they were told by Respondent's
counsel that the plan was in Chicago (the home office of Respondent), and that a
copy would be made available to the Union as soon as he received and studied it.
The plan was never furnished to the Union.
27 The Company's fiscal year was then from August 1 to July 31.
's The term "vested accounts" appears in paragraph 3 of the Company's counter-
proposal to the Union dated June 27 (General Counsel's Exhibit No 5) The term
"vested interest" was used by the Union in paragraph 6 of its summary of the terms
of the agreement distributed to employees at the union meeting at which they voted to
approve the contract
-General Counsel's Exhibit No. 3-A, article VII, section 1
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Sarni Zucca, the Union 's secretary , credibly testified that the parties also agreed
during the negotiations that the Union would have the right to verify that the amounts
paid to the represented employees in distribution of their interest in the Company's
profit-sharing plan were correct and in conformity with its terms 3°
G. Respondent 's unilateral amendment of the profit-sharing plan
To implement its agreement with the Union to pay off the shares in the plan of
the represented employees , Respondent , on November 1, without notice to or con-
sultation with the Union , unilaterally amended the profit-sharing plan as follows:
RESOLVED , That effective August 1, 1960 , the Toffenetti Fifteen Year
Profit Sharing Plan, as heretofore amended , is further amended by adding the
following new Article at the end thereof :
"ARTICLE XVII
"Section 1. Ineligibility of Union Employees . Notwithstanding anything
to the contrary contained in this Plan, each Employee who now is, or
hereafter becomes, a member of a Labor Union with which the Company
has a collective bargaining agreement directly or through an employer's
association under the terms of which the Company is required to contribute
to a Union welfare, disability , or pension plan is, or shall become, ineligible
to be a Participant under the Plan as of the date he became , or becomes, a
member of such Union.
"Section 2. Distribution of Shares in Trust Fund to Employees Becom-
ing Ineligible Under This Article. As of the last day of the Fiscal Year
immediately following the date when any Participant heretofore became,
or hereafter becomes, ineligible to participate in the Plan under the pro-
visions of Section 1 of this Article , the share of such Participant shall be
computed in conformity with Section 5 of Article VII and shall then be
restated in the amount of the percentage of such share set opposite the
number of such Participant 's completed years of participation in the Plan
as set forth in the schedule contained in Section 4(c) of the Article VII
"The restated share of each such Participant shall be promptly distributed
to him and the forfeited portion of such share shall be allocated among
and credited to the accounts of the remaining Participants in the same
manner as is provided in respect of other Remainders in Section 4 of
Article VI. The payment of such restated share shall be in full satisfaction
of any and all interested in the Plan and fund of the Participant receiving it."
According to the minutes of the directors ' meeting at which the foregoing amend-
ment was adopted , Chairman Toffenetti stated that the Union had agreed during the
negotiation of the contract that since the employees represented by it "would be
covered by the Local 's pension and welfare fund, they should no longei be eligible
to participate in the Company 's Fifteen Year Profit Sharing Plan." The minutes
further stated that Mr Toffenetti also said ,that the Union had agreed that the em-
ployees it represented should be paid by the plan the amount which he would have
received "if he had voluntarily left the employment of the Company on the date he
became a member of the Union ." Respondent adduced no testimony regarding any
such agreement on the part of the Union , either in respect to eligibility to participate
in the Company 's plan, or in respect to the method of computing the amount which
the represented employees would receive from the plan , and I have found above that
the agreement was different from that reported by Mr. Toffenetti to the directors
so Patrick Coscette , the general manager of Respondent's New York City restaurant, at
first denied that anything was said during the negotiations regarding the Union ' s right
to verify the accuracy of the amounts distributed to the unit employees from the profit-
sharing plan Later . he testified that he did not remember whether there was any such
agreement or conversation , and that he only attended four out of the six or seven negotia-
tion sessions In view of Coseette 's lack of certainty , and since the agreement to which
Sarni testified could likely have occurred when Coscette was not present , I credit Sarni's
testimony above Moreover, this conclusion is buttressed by the Union's summary of the
terms of the agreement with Respondent which was prepared and submitted for the
approval of the Union 's members before any dispute arose in respect to the amounts which
were paid . That summary ( General Counsel ' s Exhibit No G, paragraph 6) states that
the "Union has right to verify correctness of payments " in distribution of the profit-
sharing plan.
TOFFENETTI RESTAURANT COMPANY, INC. 1171
In January 1961, Business Agent Pola and Union Steward Dagger inquired of
Mr. Toffenetti when the represented employees would receive payment for their
interest in the Company's plan. Toffenetti replied that the checks were ready for
distribution but were being held pending approval by the Treasury Department
which had not yet been received. Dagger's check was then shown to the union
representatives. The check was for $463.30, and on its face showed that Dagger's
"Total Share" in the plan was $579.13, that he had been in the plan 11 years, and
that he was receiving 80 percent of his "share" Miss Helen Dandurand testified
that she explained to Pola and Dagger that the checks for the represented employees
had been computed, by using the percentages applicable to employees who quit their
employment with the Company. She testified further that the amounts forfeited
by the employees represented by the Union would be reallocated to the accounts of
the remaining participants in the plan. Neither Pola nor Dagger then voiced any
objection to the proposed payment to the represented employees of less than their
full share in the plan.
In the latter part of February 1961, however, when Pola was notified that the
checks to the represented employees in payment of their interest of the plan were
about to be distributed, he notified Mr Toffenetti that the Union objected to the
payment of less than 100 percent of the employees' interest, and requested that he
defer the proposed distribution until the Union and Respondent could iron out their
differences at a meeting. Toffenetti replied that he preferred that the employees
receive the checks "now" and that they could have a meeting "later on." Pola
thereupon agreed to the distribution of the checks to the employees "without preju-
dice," and the two fixed the date for a meeting. During this conversation, Pola
requested a copy of the plan and Mr. Toffenetti agreed to "have the plan at the
conference."
On March 3, 1961, out of the "total shares" of the represented employees in the
plan in the sum of $38,958 48, checks totaling $27,933 83 were distributed to them.
The highest percentage of his account received by any employee was 80 percent.
Employees with less than 5 years of participation in the plan received nothing
The balance of $11,024 65, "forfeited" by the represented employees, was there-
after reallocated to the remaining participants in the plan, that is, to Respondent's
unrepresented employees.
On March 17, 1961, the conference which had previously been arranged between
Business Agent Pola and Mr. Toffenetti was held at the Union's office. At this
meeting, which was also attended, inter alia, by the Union's counsel, Benjamin
Stein, and Respondent's new counsel, Pauline Teitelbaum, the latter refused to dis-
cuss with the Union the amounts which had been paid by the plan to the dining
room employees in liquidation of their interest therein, and also refused, although
requested, to furnish a copy of the plan or its amendment to the Union Accord-
ing to the uncontradicted testimony, her reasons for such refusals were that the
plan was a "private affair, solely between Mr. Toffenetti and his employees," and,
therefore, not "within their [the Union's] jurisdiction." Although Miss Teitelbaum
was willing to let Respondent's employees Kemper and Dagger look at the plan,
she would not permit them to show it to Union Counsel Stein, and refused also to
permit a copy to be made on the Union's duplicating equipment. As a result, the
meeting ended without resolution of the question of the propriety of the payments
made by the plan to the represented employees in liquidation of their interest
therein.
H. Concluding findings in respect to the amendment of the profit-sharing plan
The General Counsel contends that by unilaterally amending the profit-sharing
plan, and by failing and refusing to furnish the Union with a copy of the plan,
Respondent violated its duty to bargain in good faith with the Union, that the "plan,
as amended, is unlawful on its face," that the payments by the plan to the employees
represented by the Union "were discriminatory and unlawful," and that by the fore-
going conduct Respondent engaged in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the Act. I shall consider these contentions
seriatim.
1. The unilateral amendment of the profit-sharing plan
It is settled law that pension or profit-sharing plans such as that involved in this
case are embraced within the term "wages or other conditions of employment"
in Section 9(a) of the Act, and thus are subjects concerning which an employer
641795-63-vol. 136-75
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must bargain with the majority representative of his employees 31 It is equally well
established that an employer fails to bargain in good faith with the representative
of his employees, if, absent a contractual provision permitting it, he takes unilateral
action in respect to any term or condition of employment without affording the
Union an opportunity to negotiate concerning such matters.32
Respondent contends that having agreed to the elimination from the profit-sharing
plan of the employees represented by it, the Union thereby waived or acquiesced in
the unilateral action taken by Respondent. The record does not support this con-
tention. All that the Union waived by its agreement with Respondent was the right
to have the employees continue as participants in the profit-sharing plan. The agree-
ment of the parties was that the employees in question would be paid according to
the terms of the plan, not that the plan could be changed so as to adversely affect
the rights of the employees represented by the Union. Whenever Respondent ascer-
tained that the plan contained no specific provision covering the amount which
should be paid to these employees, it was incumbent upon it to notify the Union
and to negotiate with it concerning such changes as affected their rights 33 Accord-
ingly, I find that by failing to do so, and by unilaterally amending the plan in a
manner affecting the rights of the represented employees, the Respondent failed and
refused to bargain with the Union regarding wages and other conditions of employ-
ment, and thereby engaged in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.34
2. The refusal to furnish a copy of the plan to the Union
As found above, the Respondent had agreed during the negotiations that the
Union would have the right to verify that the amounts distributed to the employees
in liquidation of their interest in the Company's plan were correct and in con-
formity with the terms of the plan. Accordingly, it is quite apparent that the Union
needed a copy of the plan to carry out its bargaining responsibility to the employees
it represented, and its request for the plan was reasonable. Moreover, Respondent
had agreed to furnish the Union with a copy of the plan, but later refused to do
so. Respondent now contends that no violation of the Act resulted because a de-
scription of the plan, in question and answer form, hung on the wall of its office,
and because at the meeting of March 17, 1961, its counsel offered to read any por-
tion of the plan which the union representatives desired, and to show the plan to
employees. Respondent further asserts that the question and answer description of
the plan on its office wall is all that the law regarding the establishment and mainte.
nance of such plans requires.
It is well settled that an employer's failure or refusal to furnish information reason-
able and necessary for a union to carry out its bargaining responsibilities constitutes a
refusal to bargain in good faith within the meaning of Section 8(a) (5) of the Act.35
The description of the plan which hung on Respondent's office wall states that "the
trust agreement is a complicated legal document almost thirty pages long." Obviously
therefore, such a description of the plan is not a substitute for the precise language
of the plan itself. Accordingly, even assuming that such description of the plan was
adequate to comply with the provisions of law applicable to the establishment and
maintenance of such plans, the presence of such description on Respondent's office
wall did not, in my opinion, constitute compliance with the bargaining requirements
of the Act. Moreover, in view of the length and complicated nature of the plan, I
regard neither the offer of Respondent's counsel to show the plan to the Company's
lay employees (but not to the Union's counsel), nor its offer to read any portion of the
plan, as a sufficient compliance with Respondent's bargaining obligation to the Union.
I, therefore, conclude that by refusing to furnish the Union with a copy of the plan
n Inland Steel Company v. N.L R.B., 170 F. 2d 247 (CA. 7) , The Black-Clawson Com-
pany, 103 NLRB 928
= Cf. May Department Stores d/ b/a Famous-Barr Company v NLRB., 326 U.S. 376,
384, N.L R.B. v. Crompton-Highland Mills, Inc., 337 U.S 217, 223-225
^ The Black-Clawson Company, supra, 931.
as The Respondent's refusal, on March 17, 1961, to discuss with the Union the amounts
paid to the represented employees by the plan, because it was a private plan between
Respondent and its employees and not within the Union's cognizance, appears also to be
a refusal to bargain in violation of Section 8(a) (5) and (1) of the Act, but since the
complaint does not allege this conduct as a violation of the Act, I shall make no finding
in respect thereto
35 N.L.R B v. Truitt Mfg. Co , 351 U S. 149 ; N.L.R.B. v. F. W. Woolworth Co , 352
U.S. 938.
I
TOFFENETTI RESTAURANT COMPANY, INC. 1173
and its amendment, Respondent failed and refused to bargain with the Union in good
faith, and thereby engaged in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
3. The discriminatory nature of the amendment to the plan
As shown above, the plan, as amended, denies eligibility to become or to remain a
participant to any employee as of the date on which he becomes a member of any
union to whose pension, welfare, or disability plan "the Company is required to con-
tribute" by reason of a collective-bargaining agreement. 'It is clear that Respondent
adopted this amendment for the purpose of implementing its agreement with the
Union, that the employees represented by the Union would be paid off their interest in
the plan, and would be eliminated from further participation therein, because th.
Company had undertaken to contribute on their behalf to the Union's pension fund.
Whatever its motivation, however, the amendment which the Company adopted went
far beyond the agreement of the parties. Instead of limiting the elimination from the
plan only to the represented employees on the basis of the agreement with the Union,
the amendment set up rules of ineligibility which denied participation in the plan on
the basis of membership in any union without conditioning such ineligibility on the
agreement of such other unions thereto. Moreover, such ineligibility was made retro-
active to the date when the employee became a member of such unions. The
effect of the amendment is that members of the Charging Union, who are employed
by Respondent in units not covered by the contract and thus do not receive the benefit
of coverage by the Union's pension fund, are ineligible to remain as participants in
Respondent's plan. Conversely, employees of Respondent who are in the unit for
which the Union is the certified representative, and who thus are receiving the benefits
provided by the contract, are still eligible to participate in the Company's profit-
sharing plan if they are not members of the Union.36 In addition, the amendment
treats employees who become ineligible to participate because of union membership
less favorably than employees who are not union members but are discharged without
fault; the former are paid only a percentage of their interest in the plan; whereas the
latter receive 100 percent. From the foregoing, it is quite apparent that the amend-
ment of the plan on its face inherently discourages union membership and discrimi-
nates against union employees 37 Accordingly, I conclude that by adopting the said
amendment to the profit-sharing plan, Respondent discriminated against employees on
the basis of union membership, and thereby also violated Section 8(a) (3) and (1) of
the Act.
4. The discriminatory distribution of the Company' s plan to the employees
represented by the Union
As more fully described above, pursuant to the amendment to the plan, the interest
of the represented employees in the plan was terminated by the distribution to some of
them of checks for less than the sums credited to their accounts, and by giving em-
ployees with less than 5 years of participation nothing. The money thus forfeited was
reallocated to the accounts of Respondent's unrepresented employees who remained
in the plan. Respondent adduced no testimony regarding its reason for treating the
employees represented by the Union as if they had voluntarily left the employment
of the Company, and none that the Union had agreed to such disposition of the
employees' interest in the plan.
In view of the absence of any explanation for treating the union employees as
having quit, Respondent's hostility to the union representation of its employees both
before and after the election, its antiunion motivation for denying bonuses to the rep-
resented employees, and its other unfair labor practices found above, I am impelled
to the conclusion that Respondent was motivated by hostility to the Union in paying
off the interest of the represented employees in the plan in this manner , and accord-
ingly I conclude that by so doing it engaged in unfair labor practices within the
meaning of Section 8 ( a) (3) and (1) of the Act. 38
se As a practical matter, there does not presently appear to be any such in view of the
union-shop clause in the contract.
a' Jinx O'Donnell, Inc, 123 NLRB 1639; General Motors Corporation, 59 NLRB 1143;
Crosby Chemicals, Inc., 121 NLRB 412.
118 To the extent that I have not heretofore disposed of the posthearing motions of Re-
spondent described in the section of this report entitled "Statement of the Case," the
motion is denied as without merit.
On November 3, 1961, Respondent filed an additional motion, in effect to reopen the
hearing to receive further testimony and exhibits. Respondent has made no adequate
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate and substantial relation to trade, traffic , and commerce 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 the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily denied the 1960 Christmas bonuses
to the employees represented by the Union because they were members of or repre-
sented by the Union , I will recommend that the Respondent make whole such
employees by paying them a bonus, computed according to the customary formula
which it used for the represented employees and the same percentage of earnings
which it applied to those to whom it gave the bonus.
Having further found that Respondent discriminated against employees by amend-
ing its profit-sharing plan in a manner which disqualified participation therein to
employees on the basis of union membership , and which likewise discriminated
against union members in respect to distribution of the plan, I will recommend that
Respondent be ordered to amend the plan to eliminate nonmembership in a union
as a requirement for eligibility to participate , and the discriminatory provision in
respect to distribution of the plan.
Having also found that the Respondent and the Union agreed that the employees
represented by the latter would be paid their interest in Respondent 's profit-sharing
plan in accordance with its terms , that the terms of the plan contained no provisions
which specified the amounts or the formula by which such employees would be paid,
that the Respondent thereafter discriminated against the employees represented by
the Union by unilaterally amending the plan, by paying them less than the amounts
credited to their accounts in the plan, and by reallocating the amounts thus forfeited
to the accounts of the remaining unrepresented employees , I will recommend that
the Respondent be ordered to reallocate to the accounts of the employees represented
by the Union, the amounts which were so forfeited , and to bargain with the Union in
good faith in respect to the further disposition or distribution of the accounts of the
represented employees.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Dining Room Employees Local 1, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, is a labor organization within the
meaning of Section 2 ( 5) of the Act.
2. All full-time and regular part-time waiters , waitresses , and busboys employed
by Respondent at its New York City restaurant , constitute a unit appropriate for the
purposes of collective bargaining.
3. Since May 9, 1960, and at all times thereafter the Union has been the ex-
clusive collective -bargaining representative of the employees in the aforestated unit.
4. By unilaterally , and without notice to or consultation with the Union , denying
a bonus to the employees in the said unit because of their membership in or rep-
resentation by the Union, by unilaterally, and without notice to or con-
sultation with the Union , amending its profit-sharing plan in a manner which makes
eligibility to participate in its profit-sharing plan dependent upon nonmembership in
a union, and which treats employees who are thus disqualified for eligibility in the
plan less favorably than other employees , and by paying to the employees in the
unit described above less than the amounts credited to their accounts in the plan
because of their membership in or representation by the Union , thereby discouraging
showing that the testimony it now seeks to adduce, or the exhibits it proposes to offer,
constitute newly discovered evidence which eras not available to it, by subpena or other-
wise, at the hearing On the face of the motion, some of the exhibits which Respondent
now seeks leave to introduce are immaterial to the issues herein Moreover, the various
posthearing motions of Respondent disclose that all the testimony and material which it
now proposes to introduce has been in its possession since on or before August 1, 1961,
yet no explanation has been offered for the delay in making this motion . For all of the
foregoing reasons , the motion to reopen the hearing is denied
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1175
membership in labor organizations, and interfering with, restraining, and coercing
employees in their rights guaranteed by the Act, the Respondent has engaged in un-
fair labor practices affecting commerce within the meaning of Section 8(a)(3),
(5), and (1) and Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Local 28, International Organization of Masters , Mates and
Pilots, AFL-CIO; and its agents, E. A. Adams and Harry
Rutan and Ingram Barge Company
Local 28, International Organization of Masters, Mates and
Pilots, Inc., AFL-CIO; Associated Maritime Workers, Local
No. 3, International Organization of Masters , Mates and Pilots,
Inc., AFL-CIO; and Harry Rutan, their agent and The Texas
Company
Local 28, International Organization of Masters , Mates and
Pilots, Inc., AFL-CIO; Associated Maritime Workers, Local
No. 3, International Organization of Masters , Mates and Pilots,
Inc., AFL-CIO; and Harry Rutan , their agent and Ingram
Barge Company
Local 28, International Organization of Masters , Mates and
Pilots , Inc., AFL-CIO; Associated Maritime Workers, Local
No. 3, International Organization of Masters , Mates and Pilots,
Inc., AFL-CIO; and Harry Rutan, their agent and Ingram
Barge Company. Cases Nos. 14-CC-125, 14-CC-126, 14-CC-127,
13-CC-182, 13-CC-184, and 13-CB-679. April 18, 1962
DECISION AND ORDER
On December 30, 1960, Trial Examiner Thomas N. Kessel issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondents had not engaged in certain other unfair labor practices
as alleged in the complaints and recommended that these allegations
of the complaints be dismissed. Thereafter, the Respondents, the
Charging Party, and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record. The Board hereby affirms the Trial
136 NLRB No. 112.