Walts Broiler

National Labor Relations Board - Board Decisions

May 14, 1984

270 N.L.R.B. 556 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walt's Broiler and Gladys S. Shaffer, Petitioner and
Culinary Alliance and Bartenders Union, Local
No. 791, Hotel Employees and Restaurant Em-
ployees International Union, AFL-CIO
Nordic Inn, Inc. and Tony Parker, Petitioner and
Culinary Alliance and Bartenders Union, Local
No. 791, Hotel Employees and Restaurant Em-
ployees International Union, AFL-CIO. Cases
19-RD-2048 and 19-RD-2068
14 May 1984
DECISION ON REVIEW AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 25 October 1983 the Acting Regional Direc-
tor for Region 19 issued a Decision and Order dis-
missing the instant petitions, finding that Walt's
Broiler and Nordic Inn, Inc. (the Employers) had
not clearly and unequivocally withdrawn from the
multiemployer bargaining unit represented by the
Union. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board
Rules and Regulations and Statements of Proce-
dures, the Employers filed a timely request for
review of the Acting Regional Director's Decision.
The Employers contended that the Acting Region-
al Director erred on substantial factual issues and
departed from officially reported Board precedent.
Specifically, the Employers argued that they had
clearly and unequivocally withdrawn from the
multiemployer bargaining unit in a timely fashion,
and that the petitions therefore raised a real ques-
tion concerning representation. By telegraphic
order dated 16 December 1983, the National Labor
Relations Board granted the Employers' request
for review.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Having considered the entire record in this case
with respect to the issues under review, the Board
makes the following.
Walt's Broiler, a sole proprietorship engaged in
the operation of a restaurant in Montesaro, Wash-
ington, and the Nordic Inn, Inc., a corporation en-
gaged in the operation of a restaurant and hotel in
Aberdeen, Washington, were at all material times
and are members of the Gray's Harbor Restaurant
Association (the Association). The Employers were
bound to a contract between the Association and
the Union effective from 1 June 1980 to I June
1983. The contract applied to various job classifica-
tions typical of the restaurant industry and covered
approximately 280-300 employees who worked for
the 10 member-employers of the Association. In
270 NLRB No. 99
February 1983,1 at the direction of John Cornyn, a
management consultant representing the Associa-
tion, the member-employers sent identical form let-
ters to the Union which stated in part:
With reference to the forthcoming negotiations
for a new collective bargaining agreement
with your union, I wish to inform you that
(name and location of Employer) will be a
part of the Grays Harbor Restaurant Associa-
tion which will be represented by John
Cornyn and Associates of Portland, Oregon.
It should be expressly understood that (name
of Employer) retains the right to accept or
reject any part of the contract negotiated.
(Name of Employer) will not be bound in any
way to follow agreements by the group, but
will negotiate any differences separately.
On 24 February the Union sent a response to the
member-employers (with a copy to Cornyn) which
stated in part:
You can hire a firm to do your negotiating for
you as a group, or you can each negotiate in-
dividually, but you cannot have it both ways.
On 2 March Cornyn wrote the Union that "[A]s a
simple matter of time economy, it would appear to
your advantage to bargain with the group in a not
fully bound posture rather than each restaurant
separately." Further, he reiterated that his firm had
been authorized to represent the members of the
Association "as a group and individual members."
The Union did not respond to Cornyn's letter. The
parties first met on 7 April to begin negotiations.
At that meeting, Cornyn indicated he was repre-
senting the member-employers of the Association
as well certain other employers. The sign-in sheet
for that meeting shows that in addition to two
union officials, representatives of other restaurants
also were in attendance. Cornyn testified that
during the 7 April meeting, he gave the union rep-
resentatives two proposals-one for the Associa-
tion and one for the other employers he represent-
ed.
Cornyn's undisputed testimony2 shows that he
stated repeatedly that he was attempting to negoti-
ate a base contract for the member-employers of
the Association, and that after agreement on the
base contract the individual member-employers
could "go back and work on points of particular
concern to them." He also testified that at the 10
May meeting the Union rejected the Association's
proposal and the concept that individual member-
All dates are in 1983 unless otherwise noted.
2 Cornyn was the only witness at the hearing.
556
WALT'S BROILER
employers could address their concerns on an indi-
vidual basis if necessary. The Union further stated
that it saw no reason for any discussion and only
wanted the Association to sign a 1-year extension
of the current contract.
Negotiations continued with proposals from both
parties being exchanged. Some of the proposals
were applicable to all members of the Association
while others were applicable only to named
member-employers. At all times, however, it was
understood that "there was a number of issues ...
that would have to be treated separately for indi-
vidual restaurants." Cornyn explained that "on any
number of occasions" he told the Union's negotia-
tors that some issues were "of particular concern to
one or more employers." On 16 August four
member-employers separately agreed with the
Union to execute compliance letters in which they
assented to be bound to whatever contract terms
were arrived at between the Association and the
Union. Negotiations involving all other member-
employers were continuing at the time of the hear-
ing in this proceeding.
Based on the foregoing, the Acting Regional Di-
rector concluded that the Employers' attempted
withdrawal from the multiemployer bargaining unit
was not clear and unequivocal, finding that the ex-
change of letters in February and March may have
"understandably" confused the Union, that all writ-
ten proposals were group proposals, and that no in-
dividual written proposals were made. We disagree
with the Acting Regional Director's conclusion.
Rather, we find that the withdrawals of the Em-
ployers were clearly and unequivocally stated to
the Union, initially by separate letters from each
member-employer and thereafter by Cornyn's reit-
eration of the member-employers' positions. Al-
though the Union objected to the "individual con-
cern approach" at the 10 May meeting, it contin-
ued to negotiate with the Association while
Cornyn repeatedly reminded the Union of the
member-employers' position. We find no evidence
that the member-employers or Cornyn engaged in
any inconsistent actions subsequent to the time the
member-employers sent their notices of withdrawal
to the Union. Indeed, the evidence shows that
during negotiations the parties recognized the with-
drawals by discussing concerns of individual
member-employers. We further find that the fact
that four of the member-employers separately
agreed with the Union to sign compliance letters
supports the Employer's argument that the Union
recognized that the member-employers were nego-
tiating in a not fully bound posture.
It is well established that a party's withdrawal
from multiemployer bargaining must be timely and
unequivocal in order to be effective. Retail Associ-
ates, 120 NLRB 388 (1958). In the instant case,
there is no question that the Employers' February
letters to the Union were sent over 3 months prior
to the expiration of the existing contract and, there-
fore, were timely. Moreover, the language of those
letters clearly informed the Union of the Employ-
ers' intent not to be bound to a multiemployer
agreement, but to "retain the right to accept or
reject [individually] any part of the contract nego-
tiated." The fact that these Employers had bar-
gained in the past as one unit and had been parties
to a contract covering the multiemployer associa-
tion as a whole, does not, of itself, preclude the
Employers from electing not to be bound to group
bargaining in future negotiations, particularly when
they announced their intention from the outset of
negotiations for a renewal of the collective-bargain-
ing agreement. Cf. Kroger Co., 148 NLRB 569
(1964). Rather, the Employers' individual letters,
the reiteration of their positions by Cornyn after
the Union's response, and the statements by
Cornyn at the outset of negotiations and during
subsequent bargaining sessions all show the un-
equivocal desire of all the member-employers to
negotiate their individual concerns through Cornyn
and to retain the right not to be bound to any
agreement as a group. The fact that the Employers
did not resign from the multiemployer association
does not negate the clear and unequivocal intent
expressed by each and every member of the Asso-
ciation.
We find that the facts of this case are in all mate-
rial respects identical to the facts in Santa Barbara
Distributing Co., 172 NLRB 1665 (1968). There, as
here, each member-employer of a multiemployer
bargaining unit sent the union an individual letter
stating that the member-employer would not be
bound by the actions of other member-employers,
but would be represented individually by a named
representative. There, as here, all member-employ-
ers elected as their representative one individual.
The Board held in Santa Barbara that each of the
employers involved therein had retained the same
representative solely for its own individual conven-
ience and for the added efficiency and probable re-
duced cost that having one representative was able
to offer, and did not thereby intend to participate
in any multiemployer bargaining unit. That holding
is in all respects applicable to the instant case and
controls the disposition of this case. We find that
the Employers involved herein clearly and un-
equivocally withdrew from the multiemployer bar-
gaining unit in a timely fashion and that neither
their continued membership in the Association nor
their decision to retain the same negotiator to rep-
557
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resent them on a individual basis was inconsistent
with that withdrawal. As there is no other evi-
dence in the record which would show that the
Employers engaged in any postwithdrawal incon-
sistent conduct, we conclude that the Employers
effectively withdrew from the preexisting multiem-
ployer unit and, therefore, that the Acting Region-
al Director erred in dismissing the instant peti-
tions. 3
Accordingly, we shall reinstate the instant peti-
tions and remand the captioned cases to the Re-
gional Director for further appropriate action. 4
I The situation here is distinguishable from that in Dependable Tile Co.,
268 NLRB 1147 (1984). There, after the employer gave timely notice of
its intention to withdraw from a multiemployer bargaining unit, the em-
ployer's president continued to represent the multiemployer unit in nego-
tiations with the union. The Board majority found that the employer's
active participation in negotiations on behalf of the multiemployer unit
was inconsistent with its stated intent to abandon group bargaining. No
such inconsistent action is present in the instant case.
Chairman Dotson adheres to his dissenting opinion in Dependable. As
he would not have found that the employer engaged in any action incon-
sistent with its notice of withdrawal, he finds it unnecessary to distinguish
that case. Member Dennis did not participate in Dependable and does not
express an opinion on its holding.
4 Although the Regional Director's Decision and Order finds that
Walt's Broiler does not meet the Board's discretionary standards for as-
sertion of jurisdiction if not part of the multiemployer unit, we note that
ORDER
It is ordered that the petition in Case 19-RD-
2068 be reinstated and remanded to the Regional
Director for appropriate action.
IT IS FURTHER ORDERED that the petition in Case
19-RD-2048 be reinstated and remanded for addi-
tional findings regarding the Board's assertion of
jurisdiction over that Employer, and for further
action as is appropriate.
the record contains contradictory statements as to this issue. The parties
stipulated that Walt's Broiler purchased goods, services, and supplies
valued at S4,000 from out-of-state suppliers, and the Employer's counsel
was willing to stipulate that Walt's Broiler had purchased goods, serv-
ices, and materials valued at $50,000 or more from in-state suppliers who
had purchased such goods directly outside the State, but Petitioner's at-
torney would not so stipulate. However, a few pages later, the record
shows that the Employer's counsel stated, "[W]ith respect to jurisdiction,
that has already been covered from our point of view, as to how we
would stipulate, that Walt's is probably not within the current standards
used by the National Labor Relations Board and The Nordic Inn is in
commerce and within the jurisdiction of the National Labor Relations
Board." Under these circumstances, we shall remand Case 19-RD-2048
to the Regional Director for further findings as to the Board's jurisdic-
tion over Walt's Broiler.
558