Westbrook Bowl, Valley View Bowl, Verdugo Hills Bowl

National Labor Relations Board - Board Decisions

May 10, 1989

293 N.L.R.B. 1000 (N.L.R.B. 1989)

1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Naftahe Deutsch , Frank DeMascio , Kenneth Childs,
a Partnership d/b/a Westbrook Bowl, Valley
View Bowl, Verdugo Hills Bowl and Hospital
and Service Employees Union , Local 399,
SEIU, AFL-CIO Cases 31-CA-11524-1, 31-
CA-11524-2, and 31-CA-11524-3
May 10, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On December 7, 1987, Administrative Law
Judge Jay R Pollack issued the attached decision
The General Counsel filed exceptions and a sup-
porting brief, the Respondent filed cross-exceptions
and a brief in support of its cross exceptions and in
answer to the General Counsel's exceptions, and
the General Counsel filed an answering brief to the
Respondent's cross-exceptions i
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions only to the extent consistent with this
Decision and Order
The judge found that the Respondent did not
violate Section 8(a)(5) and (1) of the Act by refus-
ing to bargain with the Union in the fall of 1981,
when it withdrew recognition from the Union and
refused to honor a multiemployer agreement He
found that the Respondent was not bound by the
terms of the 1981-1984 collective-bargaining agree
ment negotiated between the Union and the Bowl-
ing Properties Association of Southern California
because the Union had acquiesced in Valley View's
withdrawal from the multiemployer unit 3 The
' The Respondent has requested oral argument The request is denied
as the record exceptions and briefs adequately present the issues and the
positions of the parties
The General Counsel filed a motion to strike the Respondent s brief in
its entirety on the basis that it fails in the main to conform to the format
required by the Board s Rules The Respondent filed a response The
General Counsels motion to strike is denied Although the Respondents
brief does not fully comply with the Board s Rules the brief is not so
deficient as to warrant sinking
2 The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 For purposes of his decision the judge treated the three bowling
alleys-Westbrook Bowl Valley View Bowl and Verdugo Hills Bowl-
as a single business enterprise Thus he treated the Union s acquiescence
in Valley View s withdrawal as effective for all three alleys
judge also found that the Respondent was not obli-
gated to bargain separately with the Union because
the Respondent had a good-faith doubt of the
Union's continued majority, which justified the Re-
spondent's withdrawal of recognition from the
Union We agree with the judge that the Union ac-
quiesced in Valley View's withdrawal from the
multiemployer bargaining unit and that none of the
alleys was bound to the 1981-1984 Association
contract For the reasons set forth below, however,
we do not agree with the judge that the evidence
of objective considerations is sufficient to support
the Respondent's refusal to recognize and bargain
with the Union, following its request to bargain in
August 1981 4
Like the judge, we shall treat the bowling alleys
as a single business enterprise for purposes of this
decision 5 Unlike the judge, however, we do not
find that the employees at all three alleys constitute
a single appropriate unit The Board has held that a
plantwide unit or a single-location unit of a multifa-
cility employer is presumptively appropriate See,
respectively, Marks Oxygen Co of Atlanta, 147
NLRB 228, 230 (1964), and Hegins Corp, 255
NLRB 1236 (1981) The complaint alleges, inter
alia, that a unit of mechanics, alley persons, jam
tors, pinchasers, desk employees, children's rooms
attendants, and concourse attendants at each of the
bowling alleys is appropriate We also note that
this unit description is coextensive with the em-
ployee classifications covered by the 1978-1981 As
sociation contract,6 and that it appears to include
all employees employed at the bowling alleys ex-
clusive of office employees, supervisors, and those
employees represented by the Culinary Workers
Union
In its answer to the complaint, the Respondent
denies the appropriateness of these separate units,
but presents no evidence in support of its denial
Given that the units as described are presumptively
appropriate, and in the absence of evidence to
rebut this presumption, we find that each alley con-
stitutes a separate appropriate unit
The Respondent's asserted good faith doubt of
the Union's continued majority is based on employ-
ee "elections" held at each alley in the summer of
1981 Regarding Valley View, the Respondent
relies on the testimony of the general manager at
Valley View, Mayolett, and an employee, Nalepa
4 The Union in August 1981 when it acquiesced in Valley View s
withdrawal from the multiemployer bargaining unit requested separate
bargaining The Respondent did not reply
We note that our conclusions below regarding the sufficiency of the
objective considerations would be the same regardless of whether the
alleys are a single enterprise or separate entities
The complaint also alleges that a unit of such employees employed
by employer members of the Association was an appropriate unit
293 NLRB No 119
WESTBROOK BOWL 1001
Mayolett testified that in August 1981, she and De-
Mascio, the general supervisor for all three alleys,
were informed by two employees that the employ-
ees had conducted an election and that the majori-
ty of employees had voted against the Union
Mayolett's testimony indicates that she was ap
proached by two employees (whose names she
could not recall) carrying a ballot box and that
these employees told her "a majority was for not
having the union," that "everybody had voted
against the Union," and that "there was one that
voted for the Union " These employees did not
show Mayolett the ballots Mayolett also testified
that since about 1979, approximately 7 to 10 em
ployees had complained about the Union's poor
handling of benefit claims Nalepa testified that she
participated in an election in 1981 at Valley View
in which approximately 20 employees voted, with
all but 1 voting against the Union
The Respondent's evidence regarding the elec-
tion at Verdugo Hills is the testimony of employee
Longnecker that he participated in an election held
during an employee meeting I According to Long
necker, all but one employee voted against the
Union, and he and another employee, Sanderson,
reported the election results to their supervisor,
Parell s
Finally, the Respondent's evidence regarding the
election at Westbrook is the testimony of Deutsch,
an owner of Westbrook, who stated that he had
been told by DeMascio, Mayolett, and Morse, the
general manager of Verdugo Hills, that elections
had been held at each of the bowling alleys and
that the majority of the employees had voted and
"refused to be organized and to belong to the
Union", and an offer of proof that DeMascio was
told that "all but one or two of the employees at
Westbrook Bowl had voted against union represen-
tation "9
It is well established that an employer that seeks
to end its collective bargaining relationship with an
incumbent union by withdrawing recognition from
the union must overcome the presumption of the
union's continued majority status "with a `clear,
cogent, and convincing' showing of either actual
loss of majority status or of objective factors suffi-
cient to support a reasonable and good-faith doubt
of the union's majority " Hutchinson-Hayes Interna-
7 Longnecker testified that approximately 10-12 employees attended
the meeting at which the election was held He did not testify regarding
the actual ballot tally
8 Longnecker testified that Parell told Morse the general manager of
Verdugo Hills about the election results The context of his testimony
does not indicate however whether it was based on direct or indirect
knowledge of the conversation
8 The judge acknowledged that there was no direct testimony regard
ing the Westbrook election
tional, 264 NLRB 1300, 1304 (1982) (citations omit-
ted)
Our review of the record convinces us that the
evidence offered in support of the Respondent's
good-faith doubt is insufficient to rebut the pre-
sumption that the Union continued to enjoy majori-
ty support at each of the alleys Overall, this evi-
dence is vague and lacks specifics, particularly re-
garding the number of employees who were repre-
sented by the Union, i 0 the number of employees
who participated in the election, and the actual
election results There is no evidence that any of
the Respondent's supervisors received direct re-
ports from individual employees regarding a desire
not to be represented by the Union Rather, the su-
pervisors appear to have relied solely on the state-
ments of several employees reporting the views of
other employees 11 Mayolett's testimony that she
was told by two employees that all but one of the
employees voted against the Union offers little of
significance in assessing employee sentiment as it is
an indirect report on the feelings or activities of
fellow employees Further, we find that the com-
plaints made by 7 to 10 employees to Mayolett
about the Union do not necessarily express a desire
not to be represented by the Union and, thus,
either considered separately or in conjunction with
the purported majority vote, fail to provide a basis
for withdrawing recognition from the Union at
Valley View
We reach a similar conclusion regarding Nale-
pa's testimony, insofar as it may serve to corrobo-
rate Mayolett's 12 Nalepa testified that approxi-
mately 20 employees voted in the election This
figure, however, was based not on Nalepa's direct
knowledge of the number of employees actually
participating in the election, but rather on her own
estimate of the number of employees at Valley
View Thus, Nalepa's testimony likewise fails to
provide specific evidence regarding the election
vote Additionally, Nalepa's testimony regarding
the election results is not based on her direct
knowledge of or participation in tabulating votes,
but rather on information provided to her by
fellow employees As hearsay, we accord it little
weight in assessing objective considerations
10 The j udge found that there were approximately 30 employees at
each alley and used this figure in assessing objective considerations The
record shows however that this figure includes employees who were
represented by another union as well as supervisory and office employ
ees
11 The Board has stated that testimony concerning conversations di
rectly with the employees involved is much more reliable than tests
mony concerning merely a few employees ostensibly conveying the senti
ments of their fellows Sofco Inc 268 NLRB 159 160 fn 10 (1983)
12 There is no evidence that Nalepa informed any management repre
sentative about the election or its results
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Longnecker's testimony regarding the election at
Verdugo Hills also lacks specificity regarding the
election vote Further, this testimony does not con-
tain any details regarding what he or Sanderson
told their supervisor about the election or what in-
formation regarding the election was, in turn, com-
municated to Verdugo Hills' general manager,
Morse There is also no evidence indicating that
Morse sought to confirm the reports of the election
with other employees or that any other Verdugo
Hills' supervisor received direct reports of employ-
ee sentiment regarding this matter Thus, we infer
that at the time the Respondent asserted a basis for
refusing to bargain with the Union at Verdugo
Hills, it was relying solely on a manager's report
that, in turn, was based on the reports of two em-
ployees We find this evidence insufficient to estab-
lish a reasonably grounded basis for withdrawing
recognition from the Union See generally Golden
State Habilitation Convalescent Center, 224 NLRB
1618 (1976)
Finally, we accord no weight to the proffered
evidence regarding the asserted doubt of the
Union's majority support at Westbrook This evi-
dence, described above, provides no particulars re-
garding the election, and is otherwise incapable of
being tested objectively
In light of all the above, we find that the evi-
dence presented in support of the Respondent's
good faith doubt of the Union's status does not
serve to rebut the presumption of the Union's con-
tinued majority at each of the three bowling alleys
Rather, the evidence falls markedly short of the re-
quired clear and cogent showing of objective fac-
tors Accordingly, we find that the Respondent
violated Section 8(a)(5) and (1) by refusing to rec
ognize or bargain with the Union We shall remedy
this unlawful conduct by ordering the Respondent
to bargain with the Union as the exclusive repre-
sentative of the employees in the separate units
found appropriate here
CONCLUSION OF LAW
By refusing since August 1981 to recognize and
bargain with the Union as the exclusive bargaining
representative of its employees in the appropriate
units, the Respondent has violated Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act
REMEDY
Having found that the Respondent violated Sec-
tion 8(a)(5) and (1) by refusing to bargain with the
Union as the exclusive representative of its employ-
ees in the appropriate units, we shall order it to
cease and desist and, on request, bargain with the
Union as the exclusive representative of its employ-
ees in the appropriate units
ORDER
The National Labor Relations Board orders that
the Respondent , Westbrook Bowl, Valley View
Bowl, and Verdugo Hills Bowl , Los Angeles, Cali-
fornia, its officers, agents, successors , and assigns,
shall
1 Cease and desist from
(a) Failing and refusing to bargain with Hospital
and Service Employees Union , Local 399, SEIU,
AFL-CIO as the exclusive representative of the
employees in the following units
All mechanics , alley persons , janitors, pin-
chasers, desk employees , children's rooms at-
tendants , concourse attendants employed by
Respondent at Westbrook Bowl
All mechanics , alley persons, janitors, pin-
chasers , desk employees , children's rooms at-
tendants, concourse attendants employed by
Respondent at Valley View Bowl
All mechanics , alley persons , .janitors, pin-
chasers , desk employees , children 's rooms at-
tendants , concourse attendants employed by
Respondent at Verdugo Hills Bowl
(b) In any like or related manner interfering
with , restraining , or coercing employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces
sary to effectuate the policies of the Act
(a) On request , bargain with the Union as the ex-
clusive representative of the employees in the
above units concerning rates of pay , wages, hours,
and other terms and conditions of employment and
embody any understandings reached in a signed
agreement
(b) Post at its Westbrook Bowl, Valley View
Bowl, and Verdugo Hills Bowl facilities , Los An-
geles, California , copies of the attached notice
marked "Appendix " 13 Copies of the notice, on
forms provided by the Regional Director for
Region 31 , after being signed by the Respondent's
authorized representative , shall be posted by the
Respondent immediately upon receipt and main
tamed for 60 consecutive days in conspicuous
places including all places where notices to em
ployees are customarily posted Reasonable steps
13 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 Nation
all 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
WESTBROOK BOWL
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
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 orderea us to post and abide by this notice
WE WILL NOT refuse to bargain with Hospital
and Service Employees Union, Local 399, SEIU,
AFL-CIO as the exclusive representative of the
employees in the following bargaining units
All mechanics, alley persons, janitors, pin
chasers, desk employees, children's rooms at
tendants, concourse attendants employed by
the Employer at Westbrook Bowl
All mechanics, alley persons, janitors, pin-
chasers, desk employees, children's rooms at-
tendants, concourse attendants employed by
the Employer at Valley View Bowl
All mechanics, alley persons, janitors, pin-
chasers, desk employees, children's rooms at-
tendants, concourse attendants employed by
the Employer at Verdugo Hills Bowl
WE WILL NOT in any like or related manner
interfere with, restrain or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
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 above-described bargaining unit
WESTBROOK BOWL , VALLEY VIEW
BOWL , AND VERDUGO HILLS BOWL
Ann Reid Cronin Esq for the General Counsel
Michael K Schmier Esq (Schmier & Schmier), of Los
Angeles California, for the Respondent
DECISION
STATEMENT OF THE CASE
JAY R POLLACK, Administrative Law Judge On
March 19 1985 the National Labor Relations Board
1003
issued a Decision and Order in this proceeding,' adopt
ing my Order of March 27, 1984, dismissing the com
plaint for failure to meet the service requirements of Sec
tion 10(b) of the Act On August 29, 1986 the United
States Court of Appeals for the Ninth Circuit reversed
the Boards Order and remanded the case to the Board
for further proceedings 2
In an unpublished Order dated March 30, 1987, the
Board found that the unfair labor practice charges under
lying the complaint were not barred by Section 10(b)
Accordingly, the Board remanded the case to me for the
purpose of conducting further hearing and issuing a deci
sion on the merits of the complaint
The initial hearing in this matter closed on February 9,
1984 On July 20 and 21, 1987, I heard the remainder of
the case in trial at Los Angeles California
The consolidated complaint alleges that Respondent
Naftalie Deutsch, Frank DeMascio, Kenneth Childs, a
Partnership d/b/a Westbrook Bowl, Valley View Bowl,
Verdugo Hills Bowl,3 violated Section 8(a)(5) and (1) by
refusing to bargain with the Union, Hospital and Service
Employees Union, Local 399, SEIU, AFL-CIO by with
drawing recognition from the Union and refusing to
honor a multiemployer bargaining agreement with the
Union, allegedly covering the employees of the three
bowling alleys, Verdugo Hills Bowl, Westbrook Bowl,
and Valley View Bowl
All parties have been afforded full opportunity to par
ticipate, to introduce evidence, to examine and cross ex
amine witnesses, and to file briefs Based on the entire
record, on the briefs filed on behalf of the parties, and on
my observation of the demeanor of the witnesses, I make
the following
FINDINGS OF FACT AND CONCLUSIONS
I JURISDICTION
At the times material , Frank DeMascio was the gener
al supervisor of all three bowling alleys 4 Naftalie
Deutsch was the managing partner for all three alleys
and had a partnership interest in both Westbrook Bowl
and Valley View Bowl Verdugo Hills Bowl was owned
by a partnership consisting of DeMascio Kenneth
Childs and Lazben Investment Co Deutsch was the
general partner in Lazben Investment Co a limited part
nership
At the times material, each bowling alley received
annual gross revenues in excess of $500,000 and pur
chased and received more than a de minimis amount of
goods that originated outside the State of California Ac
cordingly, I find that each alley is an employer engaged
in commerce and in a business affecting commerce
1 274 NLRB 1009 (1985)
2 Service Employees Local 399 v NLRB 798 F 2d 1245 (9th Cir 1986)
s The partnerships that own the bowling alleys are incorrectly named
However Naftalte Deutsch the managing partner for each partnership
was properly served For purposes of this case the three bowling alleys
are treated as a single business enterprise As will be seen below whether
the bowling alleys are treated as a single enterprise or three separate bust
nesses the conclusions herein are the same
4 DeMascio died sometime between the initial hearing in 1984 and the
resumption in 1987
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 2(2), (6) and (7) of the
Act
Further, I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act
II THE UNFAIR LABOR PRACTICES
The Union represents employees employed by bowling
alleys in the Los Angeles California area Since at least
1972, the Union has been party to a bowling center
agreement with the Bowling Properties Association of
Southern California Inc covering the employees of the
employer member bowling alleys of the Association
Verdugo Hills became party to the 1972-1975 Associa
tion Union agreement in November 1972 DeMascio
signed an agreement making Valley View Bowl a party
to the 1972-1975 agreement in October 1974 In October
1975, DeMascio signed an agreement with the Union
binding Westbrook Bowl to the 1972-1975 agreement be
tween the Union and the Association 5
To the extent DeMascio could not recall signing the
agreements or to the extent he denied that the signatures
were his own, DeMascio is not credited DeMascio was
a difficult and uncooperative witness who delighted in
the vague or argumentative response Further the signa
tures on the contracts in question bear a striking resem
blance to signatures on documents that admittedly be
longed to DeMascio
DeMascio signed an agreement in the fall of 1975 ret
roactive to August 1 1975, agreeing to the 1972-1975
agreement as amended by the `Bowling Agreement Im
provements effective August 1, 1975 through July 1,
1978 Although this agreement does not mention any of
the three Respondent bowling alleys by name, the wages
and benefit provisions were applied to employees of all
three bowling alleys during the period from 1975 until
1978
At the time of the 1978- 1981 Bowling Properties
Agreement only Valley View Bowl was a member of
the Association However, the terms of the agreement
were placed in effect at all three of the alleys managed
by DeMascio Dick Davis, the Union s executive vice
president, credibly testified that both the Union s and the
Associations representatives treated the three bowling
alleys run by DeMascio as one and the same during the
1978 negotiations The Association and the Union re
ferred to the three bowling alleys as DeMascio s bowl
ing alleys
In February 1980, DeMascio wrote the Association
canceling Valley View s membership in the Association
However, no notice of this cancellation was sent to the
Union On August 10 1981,6 the Union wrote DeMascio
a separate letter with respect to each of the bowling
alleys, indicating that it had been informed that the alleys
were no longer represented by the Association and that
the Union would meet and bargain separately with the
bowling alleys if the alleys did not authorize the Associa
5 DeMascio became general manager of Westbrook Bowl on August 1
1975
tion to represent them The Union requested a meeting
on August 18, 1981, for separate negotiations Neither
DeMascio nor any other agent of Respondent responded
to the Union s letters
During the 1981 negotiations between the Union and
the Association for an agreement to succeed the 1978-
1981 agreement, the Union was informed that DeMas
cio s bowling alleys were no longer interested in being
represented by the Association Thus all three bowling
alleys were sent the letter described above requesting a
meeting on August 18, 1981 As mentioned earlier, Re
spondent never responded to this letter Further Re
spondent never notified the Union that it had withdrawn
from the Association nor did Respondent ever request
separate bargaining
On August 10, 1981 the Respondent filed a representa
tion petition with the Board in Case 31-RM-902 on
behalf of Verdugo Hills/Valley View/Westbrook
Bowl Deutsch directed that the petitions be filed be
cause DeMascio had informed him that the employees
had voted against representation by the Union and be
cause there had been acts of vandalism' shortly after the
employees had held their elections Deutsch sought a
Government conducted election as a peaceful means of
settling that dispute Deutsch was not aware of the
Union s correspondence with DeMascio Further,
Deutsch was unaware that DeMascio had previously
given the Association authority to bargain on behalf of
the bowling alleys, had signed Association agreements
on behalf of the bowling alleys, and had applied the
agreements to all three bowling alleys
On September 10, 1981 the Union filed three charges,
one against each bowling alley alleging a failure to bar
gain within the last two months' by refusing to com
mence renewal negotiations with the Union
The General Counsel contends that Respondent
became bound by the terms of the 1981-1984 Associa
tion Union agreement On October 13 1981 Davis sent
the three bowling alleys copies of the 1981-1984 Asso
ciation Union agreement and requested that two signed
copies be returned to the Union The 1981-1984 agree
ment between the Association and the Union lists the
bowling alleys covered by the agreement but does not
mention any of the DeMascio alleys Respondent did not
respond to the October 13 1981 letter
Respondent s Defense
DeMascio denied knowing that the Union claimed to
represent Respondents employees That testimony is in
herently incredible and is not worthy of belief DeMas
cio further testified that Respondent made trust fund
payments to the Union, had deducted union dues and
had entertained a number of employee grievances but
only for union members However the evidence does
not establish a members only agreement Rather, the evi
dence establishes that all employees received the cost of
living increases requested by the Union in 1980 Virtual
6 That same date the Board s Regional office mailed the Union a copy 7 There is no objective evidence to connect the Union with the vandal
of the representation petition filed by the Respondent covering all three ism Moreover the vandalism is irrelevant to the determination of this
bowling alleys case
WESTBROOK BOWL 1005
ly all employees received the wage rates provided for in
the agreements and received their wage raises as provid
ed for in the agreements No witness with knowledge
corroborated DeMascio s contention that the agreements
applied to members of the Union only While Deutsch, a
credible witness, testified that he believed trust fund pay
ments were made only for those employees that request
ed the Union s coverage because of past or present mem
bership, Deutsch s knowledge was based on information
given him by DeMascio The record reveals that, in this
regard and others, DeMascio did not relay accurate in
formation to Deutsch For example, DeMascio told
Deutsch that the bowling alleys were members of the
Association for purposes of receiving group discounts
but were not represented for purposes of bargaining by
the Association Deutsch had no knowledge that DeMas
cio had given written authorization for the Association
to represent Valley View in bargaining and had applied
Valley View s agreement to the other two alleys
In the spring or summer of 1981, Bill Gibson, a busi
ness agent for the Union, went to Verdugo Hills Bowl to
obtain a signed copy of the 1978-1981 agreement The
Health and Welfare Benefit Trusts had notified the
Union that payments were being received from Verdugo
Hills Bowl but the trust fund had no signed copy of an
agreement for that Employer Gibson spoke with Red
Morse, manager of that alley, in an attempt to obtain a
signed copy from DeMascio After several visits, Gibson
finally got to see DeMascio and asked him to sign a con
tract DeMascio said he would not sign a contract be
cause Max Stone, another union business agent, had in
sulted DeMascio and DeMascio s secretary DeMascio
claimed that he and Morse were going to start their own
union and get nd of the Union DeMascio then told
Gibson that if the Union fired Gibson, he (DeMascio)
would give Gibson a job A couple of weeks later
Gibson and Davis went to Verdugo Hills Bowl in an at
tempt to obtain a signed agreement from that alley
Gibson met with the employees while Davis went to see
DeMascio DeMascio refused to sign anything
Virginia Scotty Mayolett general manager of
Valley View Bowl testified that in approximately
August 1981 she and DeMascio were informed by two
employees that the employees had conducted an election
and that the majority of employees had voted against
representation by the Union Valley View had approxi
mately 30 employees and only one employee had voted
for union representation Mayolett testified 7 to 10 em
ployees had complained about the Union since at least
1979 citing poor handling of benefit claims The employ
ees received no advance notice of this election Further,
DeMascio had a video monitor in his office from which
he could view the front desk area where the election
took place 8
Darryl Longnecker an employee at Verdugo Hills
Bowl, testified that he was told by an employee, Keith
Sanderson9 that Sanderson was unhappy with the Union
8 There is no evidence that DeMascio did in fact view the employee
conducted election
8 At the time of the hearing Sanderson was no longer employed by
Respondent and did not testify
and that Sanderson was going to contact employees of
Valley View and Westbrook Shortly thereafter, Long
necker attended the meeting held by Davis and Gibson
of the Union Davis told the employees that if DeMascio
did not sign a union contract the employee benefits
would be discontinued in a month Shortly thereafter,
Sanderson conducted an election among the employees
at Verdugo Hills Bowl Sanderson gave the employees
slips of paper to mark yes or no The slips were used as
ballots and put into a shoe box Longnecker and Sander
son counted the ballots All the employees except one
voted against union representation No advance notice of
this election was given to employees Sanderson told the
employees that a similar election was being conducted at
Westbrook and Valley View Sanderson and Longnecker
then informed Red Morse, general manager and Lou
Parell, bowling manager, of the results of the election
Tammy Nalepa, a bookkeeper at Valley View Bowl,
testified that she voted in the election at Valley View in
the summer of 1981 A secret ballot election was held
After the ballots were counted, the results were an
nounced Approximately 20 employees had voted against
union representation and only 1 had voted in favor of
representation Valley View had approximately 30 em
ployees at the time of the election
There was no direct testimony regarding the election
at Westbrook Bowl DeMascio was told that a majority
of employees at Westbrook Bowl had voted against
union representation DeMascio reported this information
to employees, managers and to Naftalie Deutsch
Naftalie Deutsch testified that he was told by DeMas
cio that the employees had held their own elections at
each bowling alley and had voted against union repre
sentation Deutsch checked this information by calling
the managers of the bowling alleys The managers con
firmed that the employees had in fact voted against
union representation Thereafter Deutsch learned of ma
licious damage to cars and property at the bowling
alleys Deutsch connected this sabotage to the union rep
resentation question and directed his attorney to file a
petition with the Board so that the representation ques
tion could be settled peacefully
Discussion and Conclusions
The Board recognizes the appropriateness of multiem
ployer bargaining units where the parties have voluntari
ly consented to such an agreement See Tennessee Con
solidated Coal Co, 187 NLRB 821 (1971) Once there is
an established multiemployer bargaining unit the Board
will not permit the withdrawal of an employer or a
union from a duly established multiemployer unit, except
on adequate written notice given prior to the date set by the
contract for modification or to the agreed upon date to
begin the multiemployer negotiations Emphasis added
Retail Associates, 120 NLRB 388 395 (1958) Once nego
tiations for a new contract have commenced however,
withdrawal is permitted only if there is mutual consent
or unusual circumstances exist Id In Charles D Bon
anno Linen Services v NLRB, 454 U S 404 (1982), the
Supreme Court adopted the Board s Retail Associates rule
and held that a bargaining impasse is not an unusual cir
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cumstance justifying untimely withdrawal from multiem
ployer bargaining
In the instant case , Respondent gave timely written
notice of withdrawal to the Association but not to the
Union However, the Union received timely notice from
the Association Upon receipt of notice from the Asso
ciation, the Union wrote all three bowling alleys giving
them the option of bargaining as part of the Association
or bargaining separately Respondent did not reply to the
Union but filed a representation petition with the Board's
Regional Office After receiving Respondent's represen
tation petition, the Union filed charges against all three
bowling alleys for refusing to commence renewal nego
tiations There was no contention that the alleys had
unlawfully withdrawn from the Association bargaining
Thereafter, the Union bargained with the Association
and reached a multiemployer agreement that specifically
listed the Employers covered by the agreement None of
the DeMascio bowling alleys were listed
Under these circumstances, it appears that the Union
acquiesced in Respondents timely withdrawal from the
multiemployer unit The Union gave Respondent the
option to withdraw from the multiemployer group and
to bargain separately It reached a separate agreement
with the Association Only after the Association had
reached agreement on a collective bargaining contract
did the Union take the position that Respondent was
bound by the multiemployer bargaining The Union
never took such a position during the bargaining Ac
cordingly, I find that Respondent did not become bound
by the multiemployer contract reached by the Union and
the Association
In the alternative, the General Counsel argues that the
bowling alleys were obligated to bargain separately with
the Union in August 1981 and that they unlawfully with
drew recognition from the Union The starting point for
analysis is the applicable law regarding a union s pre
sumption of majority stemming from its collective bar
gaining agreement
It is well settled that the existence of a prior con
tract, lawful on its face, raises a dual presumption of
majonty-a presumption that the Union was the
majority representative at the time the contract was
executed and a presumption that its majority con
tinued at least through the life of the contract Fol
lowing the expiration of the contract, the presume
tion continues and, though rebuttable the burden of
rebutting it rests on the party who would do so To
withdraw recognition lawfully either this presump
tion must be overcome by competent evidence that
the Union in fact did not represent a majority at the
time of the withdrawal, or the Employer must es
tablish on the basis of objective facts that it had a
reasonable doubt as to the Union s continuing ma
jonty status This latter test, which Respondent
claims it meets , requires more than mere evidence
of the Employer s subjective state of mind For the
test to be met, the assertion must be supported by
objective considerations, that is, some reasonable
ground for believing that the Union has lost its ma
jonty status [Citations omitted ]
Sahara Tahoe Hotel, 241 NLRB 106, 107-108 (1979),
enfd 648 F 2d 553 (9th Cir 1980) The Union s presump
tion of majority survives the Employers withdrawal
from the multiemployer bargaining unit NLRB v Tahoe
Nugget Inc, 584 F 2d 293 (9th Cir 1978) Thus, after the
withdrawal from the multiemployer bargaining unit,
there was a presumption of continuing union majority
status within the single employer unit
In the instant case , the three bowling alleys were con
sidered by all parties, Respondent, the Union and the
Association, as a single entity When that entity with
drew from the multiemployer unit, the appropriate bar
gaining unit became a unit consisting of the employees at
all three alleys Cf Miles & Sons Trucking 269 NLRB 7
(1984) As discussed above after the expiration of the
1981 agreement, the Union enjoyed a presumption of
continuing majority support in the unit consisting of em
ployees at all three locations Respondent could over
come the presumption by showing that the Union did
not represent a majority of the employees in August
1981 or that Respondent had a good faith doubt, based
on objective facts, as to the Union s continuing majority
status Bartenders Assn of Pocatello 213 NLRB 651
(1974), Pioneer Inn Associates v NLRB, 578 F 2d 835 (9th
Cir 1978)
In the summer of 1981, Respondent received informa
tion that their employees at all three bowling alleys had
held secret ballot elections and had voted against union
representation Respondent was told that only four em
ployees had voted for union representation and that a
large majority had voted against representation I find
that this constitutes adequate evidence to support Re
spondent s contention of a good faith belief sufficient to
rebut the presumption of the Union s continued majority
See Carolina American Textiles 219 NLRB 457 (1975)
The General Counsel argues that the employees elec
tions are not the equivalent of a Board conducted repre
sentation election However the question presented here
is whether the employees elections are sufficient to raise
a good faith doubt I find that the election results indicat
ing that a vast majority had voted against representation
and only a handful of employees had voted for represen
tation establishes a good faith doubt based on objective
evidence Moreover Respondent sought to have the
Board conduct a proper representation election, but its
petition was blocked by the instant unfair labor practice
charges
The General Counsel correctly argues that the defense
that the Union no longer enjoys majority status can only
be raised in a context free of unfair labor practices Engi
neered Control Systems, 274 NLRB 1308 (1985), Western
Truck Services, 252 NLRB 688, 691 (1980) The theory
being that the employers misconduct may well have in
duced the union's loss of majority Frank Bros Co v
NLRB, 321 U S 702 705-706 (1944) However, as dis
cussed above, I have found that Respondent's timely
withdrawal from the multiemployer group had not been
unlawful Further while the General Counsel correctly
argues that DeMascio was strongly opposed to the
Union, there is no evidence that DeMascio unlawfully
induced the Unions loss of majority Nor is there any
WESTBROOK BOWL 1007
evidence of independent violations of Section 8(a)(1) of
the Act DeMascio s union animus alone is insufficient to
establish unfair labor practices or to rebut Respondent s
objective basis for its good faith doubt
CONCLUSIONS OF LAW
3 The General Counsel has failed to establish that Re
spondent violated Section 8(a)(5) and (1) of the Act as
alleged
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
edio
I Westbrook Bowl, Valley View Bowl, and Verdugo
Hills Bowl are employers engaged in commerce and in
businesses affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act
2 The Union, Hospital and Service Employees Union,
Local 399, SEIU, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act
ORDER
The complaint is dismissed in its entirety
'0 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses