Wagon Wheel Bowl, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1993

310 N.L.R.B. 915 (N.L.R.B. 1993)

915
310 NLRB No. 144
WAGON WHEEL BOWL, INC.
Wagon Wheel Bowl, Inc. and Culinary Alliance &
Bartenders Union, Local 498, affiliated with
Hotel Employees & Restaurant Employees
International Union, AFL–CIO. Case 31–CA–
18747
March 31, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
Upon a charge filed by the Union on March 28,
1991, and an amended charge filed on May 28, the
General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on
May 29, alleging that the Respondent violated Section
8(a)(5) and (1) of the Act by polling unit employees
as to their support for the Union at a time when the
Respondent lacked sufficient objective evidence to
support a reasonable doubt of the Union’s majority
support; by refusing to recognize and bargain with the
Union based on the results of this poll; and by unilat-
erally implementing a new health insurance plan and
discontinuing contributions to the Restaurant Em-
ployer-Employee Union Welfare Fund without bar-
gaining with the Union.
On September 4, 1991, the General Counsel, the
Union, and the Respondent filed with the Board a stip-
ulation of facts and motion to transfer the case to the
Board. The parties stated that the original charge,
amended charge, complaint, stipulation of facts, and at-
tached exhibits constitute the entire record in this case
and that they waive a hearing before an administrative
law judge. On November 13 the Board approved the
stipulation and transferred the proceeding to itself for
issuance of a Decision and Order.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record and briefs, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a California corporation with an
office and place of business in Oxnard, California, is
engaged in the operation of a bowling alley and bar.
The Respondent annually receives gross revenues in
excess of $500,000 and purchases goods or receives
services valued in excess of $50,000 directly from sup-
pliers located outside the State of California.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Since at least 1970, the Union has been the collec-
tive-bargaining representative of the employees in the
following appropriate unit:
Included: All bartenders, waiters and waitresses
employed by the Employer at its Oxnard, Cali-
fornia facility.
Excluded: All other employees, guards and super-
visors as defined in the Act.
The Respondent recognized the Union as the collec-
tive-bargaining representative until January 29, 1991.
The most recent collective-bargaining agreement was
in effect from May 1, 1986, to May 1, 1990. Under
that contract, unit employees received a 5-percent
wage increase annually on September 1 from 1985 to
1989.
By letters dated February 27 and May 3, 1990, the
Union requested bargaining for a new collective-bar-
gaining agreement. By a letter dated June 15, 1990, the
Respondent replied, requesting proposals for dates and
locations for negotiations.
On July 13, 1990, the parties met, and the Respond-
ent presented a proposal for a new collective-bar-
gaining agreement containing provisions for a new em-
ployee health insurance plan, which the Respondent
also intended to offer to nonunit employees, and for no
wage increase for the term of the proposed agreement.
The Respondent wrote to the Union on July 30, indi-
cating that it was expecting additional medical insur-
ance information and proposing further negotiations.
Later that month, the parties exchanged bargaining
proposals by mail. Correspondence regarding those and
later counterproposals continued by mail through No-
vember 7, 1990. There have been no further negoti-
ating sessions scheduled, nor has an agreement been
reached.
On or about September 1, 1990, the Respondent uni-
laterally implemented a 5-percent wage increase for all
unit employees. By an undated facsimile letter sent
January 23, 1991, the Respondent notified the Union
of its intention to conduct a poll among unit employees
measuring their support for the Union. On January 25,
Robert Roy, general counsel for the Ventura County
Agricultural Association, conducted the poll. There
were, at that time, 10 employees in the unit. Employ-
ees were polled by secret ballot and were given assur-
ances against reprisals. The Respondent did not di-
rectly participate in the poll, nor was the Respondent
present during the poll or at the tabulation of results.
To conduct the poll, the Respondent relied on the
following considerations:
(1) At an unspecified time, an unknown number of
unit employees in the bar department of the Respond-
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Only the General Counsel and the Respondent have filed briefs.
ent’s facility complained to the Respondent’s president
and owner, Edwin Boyd, that the health insurance plan
provided for in the collective-bargaining agreement
was inadequate and that employees had not been vis-
ited by a Union representative in many years.
(2) At an unspecified time, J. Ezell, a unit em-
ployee, exhausted the limits of the insurance coverage
provided under the collective-bargaining agreement.
Ezell then asked Boyd why the employees could not
get a better health insurance plan. Boyd responded that
the reason was that unit employees were represented
by the Union, which was providing their current health
insurance coverage.
(3) At an unspecified time, either Ezell or H. Frees,
also a unit employee, asked Boyd how they could get
out of the Union so they could get a health insurance
plan similar to the plan being provided to the Re-
spondent’s nonunit employees. At that time, Frees stat-
ed to Boyd that, because he (Frees) was a part-time
employee, he could not obtain enough work hours to
qualify for the collective-bargaining agreement’s health
insurance plan. Frees stated that, in his 15 years of em-
ployment with the Respondent, he had never seen a
Union representative visit the premises.
(4) At an unspecified time, Boyd overheard unit em-
ployees talking among themselves, asking why they
were paying dues if a Union representative was never
around, and asking what the Union was doing for the
employees. Specifically, Boyd overheard unit em-
ployee Thompson state her dissatisfaction with the
Union to other employees, asked what the Union was
doing for the employees, and complained that the
Union was never around. On another unspecified date,
Boyd heard Hunt, a unit employee, tell employee Ezell
about Hunt’s dissatisfaction with the Union.
(5) At unspecified times, Boyd overheard unnamed
unit employees generally complaining about the Union,
particularly about the health insurance plan.
(6) About January 1991, Boyd overheard unnamed
unit employees complaining about an increase in
Union dues and complain generally that Union agents
were not around and that ‘‘the Union was not doing
anything for them, so why should their dues in-
crease?’’
The ballots distributed to employees read as follows:
The company has received information that the
Bartenders and Waitresses/Waiters no longer wish
to be represented by Local 498. The company is
conducting a secret ballott [sic] poll to determine
whether or not the majority of the employees de-
sire to be represented by Local 498. You do not
have to vote, and there will be no actions taken
against anybody based upon the way in which a
person does vote.
Each employee is asked to fill out the ballot
and drop it in the ballot box. Please do not sign
the ballot. The employer does not desire to know
how individuals vote.
Ballot
I desire to be represented by Local 498, Culinary
Alliance and Bartenders Local, for purposes of
collective bargaining.
Employees indicated their desire whether to continue
to be represented by the Union by voting ‘‘yes’’ or
‘‘no.’’ Two unit employees voted yes; five voted
‘‘no’’; and three did not vote.
In a January 29, 1991 letter, the Respondent notified
the Union that it was withdrawing recognition and has
failed and refused since that time to recognize or bar-
gain with the Union as the employees’ exclusive col-
lective-bargaining representative. The withdrawal of
recognition was based on the considerations enumer-
ated above on which the Respondent relied to conduct
the poll and on the results of the poll itself.
B. The Parties’ Contentions1
At issue is whether the Respondent had sufficient
objective evidence to support a reasonable doubt of the
Union’s continued majority status and thus warrant the
polling of the employees. The Respondent contends
that it had this evidence before it conducted its em-
ployee poll and that the poll confirmed its doubt.
Under Texas Petrochemicals Corp., 296 NLRB 1057
(1989), enfd. on other grounds 922 F.2d 398 (5th Cir.
1991), the same ‘‘reasonable doubt’’ standard applies
to the justification for either a poll of employee union
support or withdrawal of recognition. The Respondent
asserts that the objective evidence set forth above is
sufficient to justify both actions. Alternatively, the Re-
spondent urges the Board to reconsider the Texas Pe-
trochemicals ‘‘reasonable doubt’’ polling standard and
adopt the standard applied by the Ninth Circuit Court
of Appeals in Forbidden City Restaurant v. NLRB, 736
F.2d 1295 (1984)—‘‘substantial, objective evidence of
a loss of union support’’—or the standard of 30-per-
cent employee support for withdrawal of recognition
advocated by Chairman Stephens in his concurring
opinion in Texas Petrochemicals.
The General Counsel contends that the Respondent’s
poll violated Section 8(a)(5) because the Respondent
had insufficient objective considerations on which to
base a reasonable doubt of the Union’s majority status.
Under the ‘‘reasonable doubt’’ standard, the General
Counsel contends, the Respondent’s evidence fails. Ac-
cording to the General Counsel, the oral reports of dis-
satisfaction with the Union cited by the Respondent
were unreliable because Company President Boyd did
not relate the number or identity of employees alleged
to have made statements, nor the time or location of
917WAGON WHEEL BOWL, INC.
2 Cornell of California, 222 NLRB 303, 306 (1976), enfd. 577
F.2d 513 (9th Cir. 1978).
3 Cf. Sofco, Inc., 268 NLRB 159, 160 (1983).
4 Member Raudabaugh would find that an employee’s question
concerning how to ‘‘get out of the Union’’ is an indication that the
employee does not wish to be represented by the Union. In addition,
even if the employer cannot recall specific employee X or Y, the
employer can rely on it as an indication that at least one employee
has indicated that he/she does not wish to be represented. However,
Member Raudabaugh notes that, in the instant case, only one em-
ployee has so indicated, and the Respondent has not established
when this occurred.
5 NLRB v. A. W. Thompson, Inc., 651 F.2d 1141 (5th Cir. 1981);
Thomas Industries v. NLRB, 687 F.2d 863 (6th Cir. 1982); Forbid-
den City Restaurant v. NLRB, 736 F.2d 1295 (9th Cir. 1984). See
also the concurring opinion of Chief Justice Rehnquist in NLRB v.
Curtin Matheson Scientific Corp., 494 U.S. 775, 797 (1990).
6 Chairman Stephens stated that he did ‘‘not necessarily subscribe
to all the Sixth Circuit’s reasons for concluding that its standard was
met there,’’ but found the one-third figure to be ‘‘a significant one.’’
296 NLRB at 1065. As none of the employee statements relied on
by the Respondent establishes rejection of the Union by even one
unit employee, much less one-third of the unit, the evidence fails to
pass muster under Chairman Stephens’ view as well.
7 In so holding, we do not pass on the continued validity of Texas
Petrochemicals.
the statements. The General Counsel argues that the
statements did not pertain to employee desires with re-
spect to union representation but reflected a range of
complaints about the quality of representation. The
General Counsel asserts that the Respondent’s evi-
dence is insufficient to justify its poll even under the
alternative standards advanced by the Respondent.
C. Discussion
We agree with the General Counsel that, under
Board law or any of the standards that the Respondent
urges the Board to adopt, the Respondent’s evidence
falls short of substantiating the claim that it had ade-
quate objective considerations on which to justify its
poll of employees’ continued union support. The Re-
spondent relies principally on statements by employees
complaining about union dues increases, how few vis-
its union representatives made to the Respondent’s
premises, or contractual employee benefits such as
health insurance coverage. In addition, the Respondent
relies on evidence that either employee Ezell or em-
ployee Frees asked Company President Boyd how to
‘‘get out of the Union’’ to qualify for an insurance
plan other than that provided under the union contract.
In Destileria Serralles, Inc., 289 NLRB 51 (1988),
the Board held that general statements that employees
are ‘‘dissatisfied’’ with their union and disenchanted
with its past performance do not amount to the expres-
sion of a ‘‘current desire to be rid of Union representa-
tion.’’ Here, all but one of the employee statements ad-
vanced to support the poll are mere expressions of dis-
satisfaction with the quality of representation by the
Union, not ‘‘the claimed desire of these employees to
be rid of the union.’’2 Further, only one of these state-
ments is placed within any time frame whatsoever in
relation to the Respondent’s poll. As to the statement
of the one employee who asked how to ‘‘get out of
the Union,’’ the Respondent neither specifically identi-
fied which employee made the statement nor when it
was made. These statements are not ‘‘‘objective, iden-
tifiable acts’ [that] . . . can form the basis for an em-
ployer’s doubts’’3 like those the Board has found may
qualitatively satisfy withdrawal of recognition.4
In short, the probative evidence relied on by the Re-
spondent does not on its face show sufficient objective
considerations to support the Respondent’s asserted
doubt of the Union’s majority status and is insufficient
to support its claim that polling employees was justi-
fied under Texas Petrochemicals. As the Respondent
further notes, however, three circuit courts of appeals
have held that the objective evidence necessary to jus-
tify conducting a poll, although it must be substantial,
need not meet the high standard necessary for with-
drawal of recognition.5 Without addressing the merits
of this ‘‘substantial loss of support’’ standard favored
by these circuits, we find that the Respondent’s evi-
dence fails also under this less-rigorous test because it
does not manifest the requisite ‘‘substantial’’ showing
of loss of support. Thus, as noted by Chairman Ste-
phens in his Petrochemicals concurring opinion, of the
three circuits applying separate standards for polling
and for withdrawal of recognition, only the Sixth Cir-
cuit has actually found evidence sufficient to meet its
test, and there a full one-third of the employees had
made statements manifesting lack of support for the
union.6
Having rejected the Respondent’s contention that its
poll was objectively justified, we find, as alleged in the
complaint, that the Respondent unlawfully polled em-
ployees as to their union support at a time when the
Respondent had insufficient objective evidence of lack
of support;7 that it unlawfully refused to recognize and
bargain with the Union as the exclusive collective-bar-
gaining representative of employees in the unit; that it
unilaterally implemented a new health insurance plan
for unit employees and ceased making contributions to
the Restaurant Employer-Employee Union Welfare
Fund and that it made these changes without affording
the Union notice and an opportunity to bargain.
CONCLUSIONS OF LAW
1. By polling unit employees as to their union sup-
port at a time when the Respondent had insufficient
objective evidence of lack of union support, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
2. By refusing to recognize and bargain with the
Union as exclusive collective-bargaining representative
for unit employees, the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act.
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Any additional amounts due the fund shall be computed in ac-
cordance with Merryweather Optical Co., 240 NLRB 1213 (1979).
9 See Stone Boat Yard, 264 NLRB 981, 983 fn. 7 (1982).
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
3. By unilaterally implementing a new health insur-
ance plan for unit employees without affording the
Union notice and an opportunity to bargain, the Re-
spondent has violated Section 8(a)(5) and (1) of the
Act.
4. By unilaterally ceasing contributions to the Res-
taurant Employer-Employee Union Welfare Fund, the
Respondent has violated Section 8(a)(5) and (1) of the
Act.
5. These violations are unfair labor practices affect-
ing commerce within the meaning of Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in
unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, we shall order the Respondent to recog-
nize and bargain with the Union as the exclusive col-
lective-bargaining representative of unit employees.
We shall order the Respondent to make its employees
whole by paying all contributions to the Restaurant
Employer-Employee Union Welfare Fund, as provided
in the expired collective-bargaining agreement between
the Union and the Respondent, which have not been
paid and which would have been paid in the absence
of the Respondent’s unilateral discontinuance of the
payments8 and to make unit employees whole for any
losses they have incurred as a result of the Respond-
ent’s unilateral discontinuance of the payments as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn.
2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), the
amounts to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970). All
payments to employees shall be made with interest as
computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Nothing, however, in this Order
shall be construed as requiring the Respondent to re-
scind the health insurance plan benefits which it unilat-
erally established in violation of the Act.9
ORDER
The National Labor Relations Board orders that the
Respondent, Wagon Wheel Bowl, Inc., Oxnard, Cali-
fornia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Polling employees as to their union support with-
out sufficient objective evidence of lack of union sup-
port.
(b) Refusing to recognize and bargain with Culinary
Alliance & Bartenders Union, Local 498, affiliated
with Hotel Employees & Restaurant Employees Inter-
national Union, AFL–CIO, as the exclusive bargaining
representative of the employees in the appropriate unit.
(c) Unilaterally implementing a new health insur-
ance plan for unit employees and unilaterally ceasing
to make contributions to the Restaurant Employer-Em-
ployee Union Welfare Fund on behalf of unit employ-
ees.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit concerning terms and conditions of
employment, and if an understanding is reached, em-
body the understanding in a signed agreement:
Included: All bartenders, waiters and waitresses
employed by the Employer at its Oxnard, Cali-
fornia facility.
Excluded: All other employees, guards and super-
visors as defined in the Act.
(b) Tender the contributions to the Restaurant Em-
ployer-Employee Union Welfare Fund and make any
bargaining unit employees adversely affected by its un-
lawful conduct whole for any loss suffered as a result
of that conduct in the manner set forth in the remedy
section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facility in Oxnard, California, copies
of the attached notice marked ‘‘Appendix.’’10 Copies
of the notice, on forms provided by the Regional Di-
rector for Region 31, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
919WAGON WHEEL BOWL, INC.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT poll our employees as to their union
support without sufficient objective evidence of the
lack of union support.
WE WILL NOT refuse to recognize and bargain with
Culinary Alliance & Bartenders Union, Local 498, af-
filiated with Hotel Employees & Restaurant Employees
International Union, AFL–CIO, as the exclusive bar-
gaining representative of the employees in bargaining
unit.
WE WILL NOT unilaterally implement a new health
insurance plan for unit employees.
WE WILL NOT unilaterally cease to make contribu-
tions to the Restaurant Employer-Employee Union
Welfare Fund on behalf of unit employees.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
Included: All bartenders, waiters and waitresses
employed by the Employer at is Oxnard, Cali-
fornia facility.
Excluded: All other employees, guards and super-
visors as defined in the Act.
WE WILL tender all delinquent contributions to the
Restaurant Employer-Employee Union Welfare Fund
and reimburse our unit employees for any expenses en-
suing from the failure to make those payments with in-
terest.
WAGON WHEEL BOWL, INC.