White Castle System Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1976

224 N.L.R.B. 1089 (N.L.R.B. 1976)

WHITE CASTLE SYSTEM 1089
White Castle System, Inc and Hotel, Motel, Restau-
rant Employees, Cooks and Bartenders Union, Lo-
cal 24 of the Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO Case
7-CA-12263
June 17, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS PENELLO
AND WALTHER
On February 12, 1976, Administrative Law Judge
Henry L Jalette issued the attached Decision in this
proceeding Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed a brief in opposition to the exceptions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety
' The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board s established policy not to
overrule an Administrative Law Judge s resolutions with respect to credibili
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products Inc 91
NLRB 544 ( 1950) enfd 188 F 2d 362 (CA 3 1951 ) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
HENRY L JALETTE, Administrative Law Judge This pro-
ceeding was initiated by a charge filed by the above-cap-
tioned Union on August 20, 1975' Pursuant thereto, com-
plaint issued on October 20 alleging that the
above captioned Respondent had violated Section 8(a)(1)
and (5) of the Act by polling its employees about their
' Unless indicated all dates hereinafter are in 1975
union sentiments and desires and by withdrawing recogni-
tion from and refusing to negotiate and bargain with the
Union as the collective-bargaining representative of its em-
ployees On December 10, a hearing was held in Detroit,
Michigan
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs filed by the
parties, I hereby issue the following
FINDINGS OF FACT
I THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
Respondent is engaged in the operation of a chain of fast
food restaurants in several States of the United States in-
cluding Detroit, Michigan, the location of the only facility
involved in this proceeding 2 Those facilities consist of 10
units or restaurants, plus an office and warehouse Since at
least 1942, Respondent has recognized and has been in
contractual relationship with Local 24, the Charging Union
herein, or its predecessor 3 The last collective-bargaining
agreement between the parties expired on April 30 Negoti-
ations for a new collective-bargaining agreement were held
on April 29 and 30, at which it was agreed to extend the
expiring agreement for the period of negotiations Principal
negotiator for Respondent was its assistant general coun-
sel, Robert Hays, and principal negotiator for the Union
was Dinah Alexander, an employee of the Union in the
position of coordinator of administrative activities Alex-
ander was assisted by another official of the Union No
employee of Respondent was on the Union's bargaining
committee
The record does not indicate how many negotiation
meetings were held, but, according to Hays, by the latter
part of May they were in agreement on some important
points and far apart on issues of benefits, arbitration and
grievance, a no-strike clause, and checkoff Hays did not
describe what was included in the term benefits, but, under
section 4 of the prior contract, matters such as life insur-
ance, sick leave, savings, and bonus were deemed gratuities
and voluntary additions to be granted or withheld at the
sole discretion of Respondent Whether the Union was
seeking to restrict such a broad discretion affecting matters
of substantial significance to employees is not shown in the
record The prior contract contained a grievance and arbi-
tration provision of sorts, a no-strike clause, and provided
for union security and checkoff The record does not indi-
cate what either party was proposing on these issues
After the May meeting, the parties adjourned with the
understanding that Hays would draft contract language on
these issues Hays testified that by early June he had made
three or four submissions by letter to the Union, but he did
not receive a proposed contract from the Union reflecting
Z Jurisdiction is not in issue The complaint alleges the answer admits
and I find that Respondent meets the Board s standard for the assertion of
jurisdiction over retail enterprises
3 The parties stipulated that Local 24 is a successor of Local 234 Interna
tional Restaurant Employees and Bartenders International Union
224 NLRB No 153
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his submissions until July 31 Hays neglected to mention,
however, that on June 20 Alexander had advised him by
letter that his proposed contract revisions were at variance
with earlier discussions and agreements and that she was
preparing a complete agreement which she believed would
accurately reflect such agreements reached
About the third week of July, Hays conferred with offi-
cials of Respondent to report expressions of discontent
among employees and his doubts of the Union's majority
status On July 23, counsel was consulted and it was decid
ed to conduct a poll of employees to determine whether or
not they desired to be represented by the Union The poll
was conducted between August 18 and 25 At the time of
the poll there were approximately 165 employees in the
unit The poll was by secret ballot and the results were 65
votes for union representation, 83 against, with 2 invalid
ballots Based on these results, Respondent notified the
Union it would no longer recognize and bargain with it
B Analysis and Conclusions
General Counsel and Respondent are agreed on the legal
principle which governs this case, namely, that an incum-
bent union enjoys a rebuttable presumption of majority
status and that any assertion of a good-faith doubt of such
majority status must be supported by objective consider-
ations They are further agreed that a similar rule applies to
any poll on which the employer relies for his good-faith
doubt, that is, before he may undertake a poll he must
have a good-faith doubt based on objective considerations
Montgomery Ward & Co, Incorporated, 210 NLRB 717
(1974), Jackson Sportswear Corporation, 211 NLRB 891
(1974) Whether or not the objective considerations re-
quired to justify a poll are qualitatively or quantitatively
different from those required to support a withdrawal of
recognition is not clear, but it is not necessary to make a
distinction here In my judgment, the record indicates suf-
ficient objective considerations to support Respondent s
polling of its employees and its withdrawal of recognition
In support of its position, Respondent adduced testimo-
ny on a number of factors which it contends meet the ob-
jective considerations test General Counsel disagrees and
in his brief he has undertaken to analyze most of them My
analysis follows
1 There had neve- been an election in the unit
The Union had been the representative of Respondent s
employees for over 20 years and the basis of the initial
recognition was not really known, but Respondent be-
lieved that there had never been an election I agree with
General Counsel that the fact that no election had ever
been held is not a valid consideration on which to predi
cate a doubt of majority status It must be presumed that
when recognition was granted Respondent acted lawfully
and recognized a majority union Shamrock Dairy, Inc 119
NLRB 998, 1002 (1957), and 124 NLRB 494, 495-496
(1959), enfd 280 F 2d 665 (C A D C , 1960), cert denied
364 U S 892 (1960)
2 There had been no arbitration and only one
substantial grievance in 20 years
Hays testified to the foregoing General Counsel does
not appear to argue that this would not be a valid objective
consideration, rather, he questions the weight of Hays' tes
timony, contending, insofar as grievances were concerned,
that Hays did not really know whether or not grievances
had been settled between the Union and lower-level man-
agement in accordance with contract provisions I am not
persuaded by General Counsel's argument Hays testified
that "Any grievance of any consequence that couldn't be
resolved between the, say the supervisor and the employ-
ees, that would come to the attention of the manager and
would involve dealings with union representatives, I'm
quite confident the manager would have brought to my
attention' I share that confidence There were no stewards
or other union representatives with whom lower-level man-
agement could resolve grievances Moreover, if Hays' testi
mony is not the most weighty, it stands nevertheless un
challenged by any evidence from the General Counsel In
my judgment, the absence of grievance processing by the
Union was a valid factor for consideration in doubting the
Union's majority status
3 There were no union stewards
Hays testified that he had never known of any union
stewards representing the employees in the unit General
Counsel contends such testimony is insufficient to consti-
tute a valid objective consideration for two reasons He
contends that it would be rare for a high corporate execu-
tive to deal with stewards and, accordingly, his testimony
"I've never known of any union stewards" does not consti-
tute proof there were none I disagree Hays' testimony was
corroborated by Area Manager Reynolds (for his period of
supervision of the unit) and it stands uncontradicted If
there were any stewards, it should have been an easy mat-
ter for General Counsel to prove it I find there were none
General Counsel contends that the lack of stewards is
immaterial to the issue of majority status, that how a union
functions, whether by steward or paid staff representative,
is not Respondent's concern Whether by steward or paid
staff representative may not be of concern, but when it is
neither, it is reasonable to ask whether the Union repre-
sents anyone On the record before me, there is no showing
that anyone acted on behalf of the employees In my judg-
ment, the absence of a union representative to handle any
of the day-to day problems of employees was a valid factor
for consideration in questioning the Union's majority sta-
tus
WHITE CASTLE SYSTEM
4 None of the Respondent's employees was seated at the
Union's side of the table during bargaining
5 The union bargaining committee never mentioned to
management that it would report back to its membership
6 The Union's statement that procuring its standard
form contract was a major union goal in bargaining
The three items above were adverted to by Hays as cir-
cumstances which created a doubt in his mind concerning
the Union's majority status As noted earlier, the Union
was represented in bargaining by two paid union represen-
tatives Hays testified that at the first meeting he had ex-
plained to the union representatives that his committee did
not have final authority to reach a final agreement, that
such authority was vested in a management committee
The union representatives responded by stating that they
understood this because they likewise did not have final
authority They said they would have to report to their
superiors, but they made no mention of reporting to the
employees in the unit At one point in the negotiations,
Hays asked Alexander what the employees wanted and her
reply was that she did not know what they wanted and was
not interested in what they wanted, that her concern was
that the principles of the Local and the International as set
forth in their so-called "street contract" were upheld
General Counsel contends that none of the foregoing
circumstances constitutes objective considerations on
which to predicate good-faith doubt of a union's majority
status Thus, as he points out, the makeup of a union's
bargaining team is a union prerogative and Respondent
produced no evidence of employee dissatisfaction with the
Union's exercise of that prerogative As to the Union's
statement that it also lacked final authority and had to
report back to its superiors, General Counsel points out
that this did not negate the Union's also reporting bargain-
ing progress to unit members and that there is no evidence
the Union was not reporting back to its membership As to
the Union's expression of a desire for the Union's standard
contract, General Counsel asserts that Respondent pre-
sented no evidence that the employees were dissatisfied
with this approach
In other, perhaps most, circumstances, one might agree
that none of the foregoing circumstances could afford any
basis for doubting that a union enjoyed majority support
Taken in combination with all of the circumstances of this
case, it appears to me that these circumstances are entitled
to some weight, because all of them in one way or another
were indicative of a union which did not enjoy employee
support
7 The Union's request for details of all current
Respondent employee benefit plans
According to Hays, the Union's request for information
about employee benefit plans betrayed an ignorance of
employee be'iefits which he attributed to a lack of contact
between the Union and the employees In my judgment,
the request for information afforded no basis for question-
ing the Union s majority status The information in ques-
1091
tion is information which is commonly sought in negotia-
tions It was of particular importance in this case in view of
the fact that theretofore the Union, despite 20 years of
bargaining, had relinquished sole discretion to Respondent
in the matter of life insurance, sick leave, savings, bonuses,
and the like
8 The failure of Union Coordinator of Administrative
Services Alexander to have been inside a White Castle
since she was 10 years old
In agreement with the General Counsel, I find that the
foregoing fact was not a valid consideration for doubting
the Union's majority status Apart from other consider-
ations, Alexander's duties were not such as to require her
to enter any of Respondent's restaurants in the bargaining
unit
9 The failure of the Union to respond to Hays early
June 1975 contract proposals until late July 1975
Although Hays testified about the delay in the Union's
submission of a proposed contract, and appeared to have
based his doubt of the Union's majority status in part on
such delay, I see nothing in the delay to justify such a
doubt
10 The Union's failure to join management in a joint
communique to the Respondent's employees to the effect
that the Respondent did not own the Union
Area Manager Reynolds testified that in a period pre-
ceding the negotiations an employee had asked him wheth
er or not the Company owned the Union Hays testified
that he was concerned about this inquiry and that at a
negotiation meeting he suggested to the union representa
tives that the Company issue a statement on that question
to clarify the matter for its employees and to post it on a
bulletin board The Union was opposed to this and Hays
proposed a joint statement to like effect to which the
Union also objected I am not persuaded that the Union's
objection constituted a valid consideration on which to
predicate a doubt of the Union's majority status
11 Detroit Area Manager Reynolds' conversations with
employees in respect to the Union
In addition to the foregoing, Respondent asserted that it
based its good-faith doubt of the Union s majority status
on the statements of employees to supervisors Thus, Area
Manager Reynolds testified that in the period from the first
part of 1975 to the middle of 1975, at least 100, maybe 120,
employees had made remarks to him such as follows Why
do we have a union, why do we have to belong to the
Union, what does the Union do for us, how can we get rid
of the Union, how come we have to pay dues, how come
they took out this much, does the Company own the
Union
General Counsel challenges the validity of Reynolds'
testimony to support a good-faith doubt on two grounds
First, he questions the credibility of Reynolds because,
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while professing to have been approached by about 100
employees and professing to know many by name, he
could idertify only 13 employees among those speaking to
him
While General Counsel's observations are accurate, I
deem them insufficient to warrant a rejection of Reynolds'
testimony Reynolds appeared to me to be a truthful wit
ness He is not in daily contact with unit employees, he
made no notes, and he was describing conversations over a
period of several months In the circumstances, it is under-
standable that he could not name more employees I credit
him and find that about 100 to 120 employees had made
remarks to him such as described above
General Counsel contends that in any event the testimo-
ny of Reynolds is insufficient to establish the objective
considerations required by Board decisional law General
Counsel contends that supervisors' reports of employee
dissatisfaction with the Union do not constitute objective
considerations supportive of good-faith doubt In support
of this contention, he adverts to the following language in
Massey-Ferguson, Inc, 184 NLRB 640, 641 (1970)
[S]upervisory reports of employee discontent do not
support the Respondent's assertion, to be of any sig-
nificance, the evidence of dissatisfaction with a validly
recognized incumbent union must come from the em-
ployees themselves, and not from the employer on
their behalf
Of like tenor is the following statement from Terrell Ma
chine Company, 173 NLRB 1480, 1482 (1969)
To be of any significance, the evidence of dissatisfac-
tion with a validly recognized incumbent Union must
come from the employees themselves, not from the
employer on their behalf
If I understand General Counsel correctly, he is con-
tending, in effect, that where the evidence of employee dis-
satisfaction consists of oral expression by the employees
only the employees can attest thereto I do not believe that
the language cited above stands for such a proposition
While it is not entirely clear from a reading of Massey
Ferguson and Terrell Machine Company in what form those
employers sought to adduce evidence of employee dissatis-
faction, I am persuaded that it was not in the form of
Reynolds' testimony, rather, it appears that it was in the
form of supervisor A testifying he entertained good-faith
doubts because supervisor B told him employees were dis-
satisfied There is an element of that form of proof here in
the case of Hays' testimony about what Reynolds told him
I am not relying on that testimony, but on Reynolds' testi-
mony of statements made to him In my judgment, this was
evidence of dissatisfaction which came from the employees
themselves
It is true, as General Counsel points out, that there was
not "the slightest indication of any dissident group, or of
any move, however limited, to unseat the exclusive bar-
gaining representatives " United Aircraft Corporation (Pratt
& Whitney Division), 168 NLRB 480, 486 (1968) I am per-
suaded, however, that the explanation for the absence of
dissident activity beyond the oral expressions of discontent
the employees of their rights under Sections 7 and 9 of the
Act There is no doubt in my mind that the employees
whose rights are here in question had no idea that they
could file a decertification petition or even submit a signed
petition to Respondent They are scattered about 10 facili-
ties and have been under contract for 20 years or more
with no one to inform them of their rights When they
questioned Respondent it remained silent and did not ex-
plain to them their rights under the Act (perhaps for fear of
being charged with encouraging employees to cease sup-
porting the Union) To hold that there were no objective
considerations to support Respondent's asserted good-faith
doubt would be to impose on these employees for yet an-
other year to two or more a union whose only visible con
tribution to their welfare in over 20 years had been to ne-
gotiate a contract with the lowest wages in Respondent's
chain of operations while requiring them to join the Union
and pay dues I do not believe Celanese 4 and its progeny
ever intended such a result
In summary, I conclude, contrary to General Counsel,
that of several factors adverted to by Respondent in sup-
port of its asserted good-faith doubt the following consti-
tute valid objective considerations only one grievance in
10 years, no union stewards, no employees on the bargain-
ing committee, statements of union representatives in bar-
gaining supportive of an inference that the Union lacked
majority support (included under this item, and not previ-
ously adverted to, was the Union s failure to reply to Hays'
question as to whether they actually represented a majority
of the employees), and expressions of employee dissatisfac-
tion with the Union, communicated to Respondent by a
majority of the employees In addition, there is the uncon-
tradicted testimony of Reynolds not discussed by General
Counsel, that to his knowledge there had been no union
meetings of Respondent's employees in the period he was
area manager
In his brief, General Counsel has isolated the various
factors relied upon by Respondent in support of its con-
duct and pointed to their insufficiency While I disagree
with his conclusions, I recognize the weakness of certain of
the factors relied upon by Respondent But "[w]hile
each of the factors relied upon by the Respondent standing
alone may have weaknesses as a basis for supporting a
good-faith doubt of the Union's majority status Re-
spondent does not rely on any one reason alone, but rather
on all as a whole' Taft Broadcasting, 201 NLRB 801, 803
(1973)
For all the foregoing reasons, I find that there existed
valid objective considerations to justify Respondent's poll-
ing of employees and its subsequent withdrawal of recogni-
tion Accordingly, I conclude the complaint should be dis-
missed in its entirety
CONCLUSIONS OF LAW
1 White Castle System, Inc, is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
described by Reynolds is attributable to the ignorance of ' Celanese Corporation of America 95 NLRB 664 (1951)
WHITE CASTLE SYSTEM
2 Hotel, Motel, Restaurant Employees, Cooks and Bar-
tenders Union, Local 24 of the Hotel and Restaurant Em-
ployees and Bartenders International Union, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act
3 Respondent did not violate Section 8(a)(1) and (5) of
the Act by polling its employees about their desires for
union representation and by withdrawing recognition from
and refusing to bargain with the Union
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
1093
10(c) of the Act, I hereby issue the following recommend-
ed
ORDERS
The complaint is dismissed in its entirety
5 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objectives thereto shall be
deemed waived for all purposes