Yet Wah Restaurant

National Labor Relations Board - Board Decisions

Aug 12, 1980

251 N.L.R.B. 47 (N.L.R.B. 1980)

YET AH RESTAURANT 47
Yet Wah Restaurant and Hotel and Restaurant Em-
ployees and Bartenders Union, Local 2, Hotel
and Restaurant Employees and Bartenders In-
ternational Union, AFL-CIO. Case 20-CA-
14622
August 12, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEI.LO, AND
TRUESDALE
On March 13, 1980, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
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, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
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, as modi-
fied below, and hereby orders that the Respondent,
Yet Wah Restaurant, San Francisco, California, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
i Respondent 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 credi-
bility unless the clear preponderance of all of the rele ant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Producil
Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for resersing his findings
The Administrative Law Judge inadvertently stated that there were
four union elections between 1975 and 1979. when in fact the evidence
shows only that there were four different union administrations during
this period.
2 The Administrative Law Judge found. and we agree, that Respond-
ent violated Sec. 8(a)(5) and (1I) of the Act by refusing to allow a busincss
representative of the Union access to its premises a required hby the col-
lective-bargaining agreement between Respondent and the Union Al-
though he included in his recommended Order a prosision requiring Re-
spondent to cease and desist therefrom, he inadvertentl5 failed to include
an affirmative provision requiring Respondent to allow such access to its
premises as permitted b that agreement We shall modifN his recom-
mended Order accordingly
251 NLRB No. 10
"(b) Allow the Union access to its premises to
administer the collective-bargaining agreement
which includes a proviso allowing the Union
access for this purpose."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILl. NOT refuse to bargain collectively
with Hotel and Restaurant Employees and
Bartenders Union, Local 2, Hotel and Restau-
rant Employees and Bartenders International
Union, AFL-CIO, by refusing upon request to
supply relevant information needed by said
Union to represent the employees in the ap-
propriate bargaining unit and refusing to allow
the above-described Union access to our prem-
ises to administer the collective-bargaining
agreement which includes a proviso allowing
the Union access for this purpose. The appro-
priate bargaining unit is:
All employees employed by us at 2140
Clement Street, San Francisco, California
and who are employed in the job classifica-
tions listed in the Independent Restaurant &
Tavern Agreement effective September 1,
1972; excluding all other employees, guards
and supervisors as defined in the National
Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed in
Section 7 of the National Labor Relations Act.
WE WILL furnish, upon request, to the
above-named Union the names, dates of hire,
termination dates, social security numbers,
work classifications, and wages for all employ-
ees employed by us since November 1978 in
the appropriate unit.
WE WILL allow the above-named Union
access to our premises to administer the collec-
tive-bargaining agreement which includes a
proviso allowing the Union access for this pur-
pose.
YET WAH RESTAURANT
YET WAH RESTAURANT 7
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge:
This proceeding, in which a hearing was conducted on
November 28, 1979, is based upon an unfair labor prac-
tice charge filed on May 3, 1979, by the Hotel and Res-
taurant Employees and Bartenders Union, Local 2, Hotel
and Restaurant Employees and Bartenders International
Union, AFL-CIO, herein called the Union, against Yet
Wah Restaurant, herein called Respondent. A complaint
issued against Respondent on July 12, 1979, on behalf of
the General Counsel of the National Labor Relations
Board, herein called the Board, by the Regional Director
of the Board, Region 20, alleging that Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the National Labor Relations
Act, herein called the Act, by refusing to furnish the
Union with certain information and to allow the Union
access to its premises. Respondent filed an answer to the
complaint denying the commission of the alleged unfair
labor practices.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
post-hearing briefs, I make the following:
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
Respondent is a corporation owned by Hoon Seng
Chan and his wife. It owns and operates eight restaurants
in San Francisco, California, and vicinity. In 1969 Chan,
operating as a sole proprietor, opened his first restau-
rant,2 and by April 1975 owned and operated two res-
taurants and was in the process of opening a third one
located in San Francisco at 21400 Clement Street, herein
referred to as the 2140 Clement Street Restaurant or the
Restaurant, which opened on April 20, 1978.
On May 1, 1975, Chan signed a memorandum agree-
ment with the several local unions 3 affiliated with the
San Francisco Local Joint Executive Board of Culinary
Workers, Bartenders, otel, Motel and Club Service
Workers, herein called the Joint Board. The agreement is
effective from May 1, 1975, until May 1, 1980, and pro-
vides for recognition of the several local unions as the
sole collective-bargaining agency for all of Chan's em-
ployees who do work which falls under the constitution-
al jurisdiction of the unions and are employed at the
2140 Clement Street Restaurant or at any restaurant
wholly or partly owned or operated by Chan. Under the
terms of the agreement Chan agreed to "accept, adopt
I Respondent admits that the Union is a labor organization ithin the
meaning of Sec. 2(6) of the Act Also. Respondent admits that Respond-
ent is an employer engaged in commerce within the meaning of Sec 2(^)
and (7) o the Act and meets that Board's applicable discretionary juris-
dictional standard
In 1976 Respondent was incorporated
These unions were Dining Room Employees Union, No. 9; Bartend-
ers' Union, No. 41; Cooks. Pastry Cooks & Assistants' Union. No 44.
Miscellaneous Employees' Union. No. 110; and Hotel, Motel & Club
Service Workers' Union, No. 283
and observe" all of the rules prescribed by the Independ-
ent Restaurant & Tavern Agreement governing employ-
ees' terms and conditions of employment.
The Independent Restaurant & Tavern Agreement re-
ferred to in the May 1, 1975, memorandum agreement is
a conventional collective-bargaining agreement which,
among other provisions, includes a union-security provi-
sion whereby employees are required to join the various
signatory unions after 30 days of employment; a provi-
sion whereby the employer is obligated to make monthly
contributions on behalf of eligible employees into certain
health, welfare and pension trust funds; a provision
whereby the employer agrees to hire applicants through
the various local unions; a provision which states that
"[p]roperly authorized representatives of the Union shall
be permitted to investigate the standing of all employees
and to investigate conditions to see that the Agreement is
being enforced, provided that no interview shall be held
during the rush hours, or unreasonably interrupt the
duties of any employee;" a provision requiring the em-
ployer to post a work schedule specifying the name and
classification of each employee and other related infor-
mation and furnish a copy of the work schedule to the
unions; and wage provisions.
The Memorandum agreement signed by Chan on May
1, 1975, was signed on behalf of the unions by Lawrence
Tom, a business representative for Dining Room Em-
ployees Union, Local 9, one of the local unions affiliated
with the Joint Board. In April 1975 Tom and Chan met
on two occasions and discussed the signing of a collec-
tive-bargaining agreement covering the employees em-
ployed at the 2140 Clement Street Restaurant. These
meetings culminated in their May 1, 1975, meeting at
which time they signed the memorandum agreement. It
is also undisputed that at this meeting Tom gave Chan a
copy of the memorandum agreement and of the Inde-
pendent Restaurant & Tavern Agreement referred to
therein.
Tom and Chan are Chinese. Tom is fluent in English
but his Chinese (Cantonese) is limited. Chan is fluent in
Chinese (Cantonese) whereas his English is limited. Al-
though Chan only understands a "little" English, Tom
was sufficiently proficient in Cantonese so that Chan un-
derstood him when they spoke about uncomplicated mat-
ters. Present at the May 1, 1975, meeting, in addition to
Tom and Chan, was Jack Louie, a bookkeeper for Local
9, who was fluent in both English and Cantonese. Tom
brought Louie with him to this meeting to act as an in-
terpreter because Tom intended to give the aforesaid
agreements to Chan and explain them and knew that
Chan had difficulty understanding and reading English.
The May 1, 1975, meeting lasted 2 hours and took
place at the 2140 Clement Street Restaurant. Tom gave
Chan copies of the memorandum agreement and the In-
dependent Restaurant & Tavern Agreement. In response
to Chan's questions Tom outlined some of Chan's obliga-
tions under these agreements. Chan questioned Tom spe-
cifically about his contractual obligation concerning
union-security, wages, health and welfare, and work
schedules. Tom went over the provisions of the Inde-
pendent Restaurant & Tavern Agreement which con-
YET WAH RESTAURANT 49
tained the rates of pay for the various kinds of work per-
formed by the Restaurant's employees. In answer to
Chan's inquiry about health and welfare payments and
the number of employees who had to comply with the
union-security provision, Tom explained that all employ-
ees who worked a certain number of hours were covered
under the contractual health and welfare and pension
plans and that a permanent employee after working 30
days, must join one of the unions pursuant to the con-
tractual union-security provision. Tom also explained
that Chan must hire his employees through the signatory
unions but if they were not able to supply him with ap-
plicants he could hire from other sources. In addition
Tom told Chan that he was obligated to provide the sig-
natory unions with a copy of the employees' work
schedule. The meeting ended with Chan and Tom sign-
ing the Memorandum Agreement.
The aforesaid description of the May 1, 1975, meeting
is based upon Tom's testimony. 4 Chan in effect testified
that he met with Tom on two or three occasions in April
1975 at which time Tom threatened to picket the 2140
Clement Street Restaurant so as to interfere with the
opening of the Restaurant if Chan did not "join the
union" and assured Chan that so long as Chan agreed
that six or seven of the Restaurant's employees would
join the Union that there would be no picketing. Regard-
ing this meeting with Tom on May 1, 1975, Chan did not
deny that the meeting lasted 2 hours and admitted that
Louie, who came with Tom, acted as an interpreter and
that Tom explained to Chan "in a very general way"
what he was signing, but did not explain all of the provi-
sions contained in the Independent Restaurant & Tavern
Agreement. Lastly Chan testified that he understood
from what Tom said that his only obligation under the
terms of the collective-bargaining agreement he signed
on May 1, 1975, was to have six or seven employees join
the Union and that he was not otherwise obligated to
comply with the terms of the collective-bargaining
agreement. Tom, on the other hand, specifically denied
threatening to picket the Restaurant if Chan did not sign
a collective-bargaining agreement or that he indicated to
Chan that any agreement signed would only cover six or
seven employees.
I have credited Tom's testimony, rather than Chan's,
because of Tom's demeanor. In addition, Tom's account
of his meetings with Chan was given in a straightfor-
ward manner, without evasiveness or inadequate
memory. Chan's testimony was vague and evasive. It
was lacking in specificity. He made no effort to describe
his meetings with Tom in any detail. Regarding the cru-
cial May 1 meeting at which it is undisputed that Chan
signed the collective-bargaining agreement, his sole testi-
mony was that Tom "in a very general way" explained
what Chan was signing, but that Tom did not explain all
of the provisions included in the Independent Restaurant
& Tavern Agreement. Also Chan's testimony seems in-
herently implausible. Thus, it is undisputed that the May
1 meeting lasted 2 hours and that Louie came with Tom
4 Jack Louie, who acted as an interpreter at the meeting, did not tes-
tify. He was not employed by the Union at the time of hearing herein
having been terminated by Local 9 over 4 years prior to the hearing he
General Counsel unsuccessfully tried to locate Louie.
to act as an interpreter. If, as Chan would have me be-
lieve, Chan and Tom previously agreed to enter into a
"sweetheart contract" why was it necessary for them to
meet on May I for 2 hours with an interpreter and go
over provisions included in the collective-bargaining
agreement. Clearly, if Chan and Tom had intended not
to enter into a real collective-bargaining relationship
there would have been nothing for them to explain or
discuss, certainly not to the extent of requiring an inter-
preter or 2 hours of explanation. Lastly, when the Union
in 1978 and 1979 attempted to secure Respondent's com-
pliance with the terms of the May 1, 1978, collective-bar-
gaining agreement Respondent, as described in detail
infra, took the position that the reason Respondent had
no collective-bargaining obligation was that the nature of
the employing enterprise had changed from a sole pro-
prietorship to a corporation. It was not until the hearing
in this case that Chan took the position that there was no
collective-bargaining obligation because there was never
an intent on the part of the parties to enter into a true
collective-bargaining relationship. I am convinced that if
this had been the case Chan would not have waited until
the unfair labor practice proceeding to state this position
but would have done so in 1978 and 1979 in reply to the
Union's request that Respondent comply with the terms
of the May 1, 1975, collective-bargaining agreement. It is
for all of the aforesaid reasons that I have rejected
Chan's testimony.
The collective-bargaining agreement signed by Chan
was administered on behalf of the local unions by Local
9 Business Representative Tom from May 1, 1975, until
October 1, 1978, when the local unions merged into the
Union, the Charging Party in this case, and Tom was as-
signed to work in a different geographical area.
During the 5 months that the Restaurant was within
the geographical area serviced by Tom he visited it once
a month. 5 The record reveals that only six or seven of
the Restaurant's employees paid union dues during this
period of time or during any time material to this case
and that the only Restaurant employees on whose behalf
Chan contributed into the contractual health, welfare,
and pension trust funds were the same six or seven em-
ployees. Tom testified that there should have been more
than six or seven employees paying union dues under the
terms of the union-security provision, considering the
size of the Restaurant, but testified there was insufficient
evidence to establish that Respondent was violating this
part of the contract because each time he visited the Res-
taurant and questioned employees to determine whether
Chan was complying with the union-security agreement
that the employees whom he questioned told him they
had just started working or had been working for only a
week or were temporary employees just filling in for an
absent employee for a short period of time. 6
' He was unable to isit the Restaurant more frequently because he
was responsible for ervicing over 200 restaurants hich employed ap-
proximately 1.500 members.
6 Tom also testified that when a new business such as the Restaurant
first opens there is usually a tremendous turnover of employees for the
first several months.
YET WA RESTA RANT 4
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Commencing on October 1, 1975, when the Union was
formed as a result of the merger of the several local
unions and Tom was reassigned, the Union made no
effort to police its collective-bargaining agreement cov-
ering the Restaurant until the latter part of December
1978 when Union Business Representative Richard
Leung was assigned the geographical area in which the
Restaurant is located. During the period of time that the
Union failed to administer the collective-bargaining
agreement or otherwise represent the Restaurant's em-
ployees the record reveals that the Union's internal af-
fairs were in a state of chaos: There was a lack of direc-
tion within the Union, business records were lost; the
districts to which the several union business representa-
tives were assigned to work were continually being re-
vised; there were four union elections; the Union was
placed under the trusteeship of the International Union, a
state of affairs which lasted until May 1979; the Union
was involved in an EEOC proceeding which resulted in
a court-imposed consent decree requiring the Union to
assign additional work to its already overburdened staff
of business representatives.
When Union Business Representative Leung visited
the Restaurant in late December 1978, he introduced
himself to the employees who were working in the kitch-
en. They pointed out the Restaurant's manager. Leung
introduced himself to the manager and asked for the em-
ployees' work schedule. The manager stated she knew
nothing about the Union or a union contract and advised
him to speak to a Mr. Hom, who she stated was Re-
spondent's general manager, and gave him Hom's phone
number and business address.
Leung phoned Hom. He introduced himself and asked
Hom for a meeting to discuss the existing collective-bar-
gaining agreement and Respondent's obligation under the
agreement. Hom agreed to meet with Leung and they
scheduled a meeting for later that week which took
place in Respondent's office. Chan was present at this
meeting. Leung asked for the employees' work schedule,
stated that the collective-bargaining agreement covering
the Restaurant was still in effect and that Respondent
was obligated to abide by the terms of that agreement.
Hom answered that he doubted the validity of the agree-
ment because the business was now being operated as a
corporation rather than as a sole proprietorship and ad-
vised Leung that Respondent's board of directors would
meet to discuss the Union's request and decide whether
the contract was a valid one. Leung insisted that the
contract was valid and stated that he, Leung, had the
right to visit the employees during working time so long
as he did not interfere with their work. Hom told him
not to visit the Restaurant as long as the validity of the
contract was in doubt. Chan, who was present for the
entire conversation, did not participate. He allowed Hom
to do all of the talking.
Later that same day Leung visited the Restaurant
during the employees lunch break and spoke to the ap-
proximately 20 employees who were eating lunch. He
explained that they were covered by a collective-bar-
gaining agreement and told them about the rates of pay
they were entitled to be paid under the terms of the con-
tract and about the contractual health and welfare bene-
fits. He also answered employees' questions. He left
when the person who the employees had previously
identified as the Restaurant manager asked him to leave
the premises.
A few days later Leung phoned Hom and asked about
the decision of the board of directors. Hom told him that
the board of directors had concluded that the May 1,
1975, collective-bargaining agreement was not valid and
referred Leung to the Company's lawyer, Norman Lew.
Leung phoned Lew, introduced himself and stated that
the Union felt that its contract with Chan covering the
Restaurant was valid since Chan was the president of
Respondent. Lew answered that Respondent's position
was that since the ownership of the Restaurant had
changed from an individual proprietorship to a corpora-
tion that the contract was not valid. Leung stated that
the Union thought it had a valid contract and the right
to visit the Restaurant. Lew replied that the Company
did not want him to visit the Restaurant so long as the
matter of the contract was in dispute.
On June 13, 1979, the Union wrote Respondent the
following letter:
As you know the Union has a contract with Yet
Wah, running through May 1, 1980. For this reason
we must request that you comply with its terms and
provisions. Within the past six months the business
agent has made repeated requests that Yet Wah do
so, and these requests have been refused.
In accordance with section 5 of the General Rules
of the Collective Bargaining Agreement, we there-
fore must have work schedules for all of your em-
ployees provided to us by June 21, 1979. These
work schedules must include the full name of all
employees, social security numbers, classification of
each employee, wages paid to each employee and
such other items as are listed in Section 5 on Page
13 of the Agreement.
In addition, we would request that you supply us
with the following information as to all employees
employed by Yet Wah since November, 1978:
(1) Names
(2) Dates of Hire
(3) Termination dates of any employees terminat-
ed during that period
(4) Social Security Numbers
(5) Work Classification
(6) Wages paid
In addition let me remind you of your obligation to
call the Union in the event you will be hiring new
employees. A search of your records indicates that
you have not been doing so. You must call the
hiring hall of the Union upon filling all vacancies.
Thank you for your cooperation in this matter, I
remain. . . .
Respondent did not answer this letter.
- - - - - __ __ ____ ------ - ____ ____ ___ - __ - __ - - - __ ____ ------
YET WAH RESTAURANT 51
B. Discussion and Conclusion
The complaint alleges that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to furnish the
Union with the names, dates of hire, termination dates,
social security numbers, work classifications, and wages
of the employees employed at the Restaurant and by re-
fusing to permit a union business representative access to
the premises of the Restaurant to administer the parties'
collective-bargaining agreement.
The record, as described in detail above, establishes
that during the relevant period of time there was a col-
lective-bargaining contract in effect between Respondent
and the Union covering the Restaurant's employees; 7 late
in December 1978 or early in January 1979, while the
contract was still in effect, Respondent refused to allow
a union business agent access to its premises as required
by the contract; and that as of June 1979, while the con-
tract was stiu n effect, Respondent refused to furnish the
Union with We names, dates of hire, termination dates,
social security numbers, work classifications and wages
for all employees employed since November 1978 at the
Restaurant.
The law is settled that when an employer and a union
enter into a collective-bargaining agreement, a presump-
tion of majority status is raised and continues for the du-
ration of the contract. See Pioneer Inn Associates. d/b/a
Pioneer Inn and Pioneer Inn Casino v. N.L.R.B., 578 F.2d
835, 838 (9th Cir. 1978). In tne instant case Respondent
argues that by refusing the Union access to the Restau-
rant and refusing to furnish to the Union the requested
information that it did not violate Section 8(a)(5) and (1)
of the Act because the Union lost the presumption of
majority status flowing from the existence of its contract
with Respondent inasmuch as (I) "There was no collec-
tive bargaining agreement intended" and (2) "Even as-
suming a valid collective bargaining agreement, the
Union has abandoned and forfeited any rights thereun-
der." I reject Respondent's contentions.
In support of its contention that the parties by signing
the May 1, 1975, memorandum agreement did not intend
to operate a real collective-bargaining relationship, Re-
spondent relies upon the testimony of Chan concerning
the circumstances under which he signed the agreement
and the fact that only six or seven employees ever joined
the Union or had contractual health and welfare contri-
butions made on their behalf. As described supra, I have
I I recognize that the recognition provision in the May 1975 "Memo-
randum Agreement" by its terms obligates Respondent to recognize the
Union as the employees' bargaining representative at all eight of its res-
taurants. However, it is plain that it was the intent of the parties that the
scope of the bargaining unit be limited to the Restaurant. Thus. when
Tom negotiated the contract with Chan he knew that Chan owned and
operated two other restaurants yet Tom's testimony and Chan's testimo-
ny establishes that when they negotiated the agreement it wvas their intent
that the agreement would only cover the employees employed at the
Restaurant and that this intent was manifested during the negotiations. In
addition the preamble to the May 1. 1975, "Memorandum Agreement"
states that the agreement is between "[the unions] and Hoon Seng Chan
operating the business establishment at 2140 Clement Street." Finally. Re-
spondent only contributed into the contractual health, welfare and pen-
sion trust funds on behalf of employees employed at the Restaurant. in
sum the record reveals clear and objective understanding by both of the
parties to the collective-bargaining agreement that the scope of the con-
tractual bargaining unit was limited to the employees at the Restaurant.
rejected Chan's testimony. And, in the circumstances of
this case, the fact that Respondent may not have com-
plied with the contractual health and welfare and union-
security provisions does not by itself establish that there
was no intent by the parties to establish a real collective-
bargaining relationship, rather it only demonstrates that
the Union was negligent in administering the collective-
bargaining agreement.8 In short the record fails to estab-
lish that the collective-bargaining agreement herein was
not a valid one or that the parties entered into this agree-
ment with no intent to establish a true collective-bargain-
ing relationship.9
In urging that the collective-bargaining agreement and
the employees covered thereunder were abandoned by
the Union, Respondent relies upon the fact that the
Union made no effort to administer the contract or oth-
erwise represent the employees from October 1, 1975,
until late December 1978, a period of over 3 years. The
record establishes that while the Union, due to a multi-
tude of internal problems, failed to administer or other-
wise enforce its contract with Respondent for over years
the Union resumed its role as the employees' bargaining
representative in late December 1978 when Union Busi-
ness Representative Leung sought access to the Restau-
rant premises in order to enforce the collective-bargain-
ing agreement. Respondent however refused to allow the
Union access to its premises or to furnish the Union with
information needed to determine whether Respondent
was complying with the terms of the collective-bargain-
ing contract.
The law is settled that where, as here, there is a valid
collective- bargaining agreement, the agreement,
. . . calls into effect the long-established Board pre-
sumption of the Union's majority status during the
term of the contract, irrespective of the degree to
which the Union may or may not have been defi-
cient in the administration of that agreement.
Moreover, even if one were to examine Board
precedent as to when a union is regarded as "de-
funct"-so that its collective-bargaining agreement
no longer constitutes a bar to petitions from com-
peting unions-it is clear that, to preserve the via-
bility of its agreement for contract-bar purposes, a
recognized union need only show that it is willing
and able to represent the covered employees at the
time its status is called into question. [Pioneer Inn
Associates, 228 NLRB 1263, 1264, enfd. on this point
578 F.2d 835, 839 (9th Cir. 1978).]
In this regard the record establishes that notwithstanding
its inactivity prior to December 1978 the Union in De-
cember 1978 undertook to represent the employees, and
enforce the terms of the governing collective-bargaining
8 As discussed supra, the Union's failure to administer the collective-
bargaining agreement for the greater part of its term was apparently due
to internal union difficulties.
In view of this conclusion I have found it unnecesssary to consider
the General Counsel's contention that the evidence pertaining to the cir-
cumstances surrounding the entering into of the May 1, 1975. collective-
bargaining agreement is barred by either the panel evidence rule or Sec
10(b) of the Act.
YET ~ WA.ET U A T5
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement but was precluded from doing so by Respond-
ent's refusal to allow the Union access to its premises or
to furnish the Union with information necessary for the
Union to determine whether or not the Company was
complying with its contractual obligations. In short the
record demonstrates that the Union "[was] willing and
able to represent the covered employees at the time its
status [was] called into question." Pioneer Inn Associates,
supra.' 0
Accordingly, I find that Respondent, by engaging in
the above-mentioned conduct-refusing to furnish the
Union the names, dates of hire, termination dates, social
security numbers, work classifications, and wages for all
employees employed since November 1978 at the Res-
taurant and refusing to allow a union business agent
access to the premises as required by the contract-at a
time when a valid contract between it and the Union
was still in effect, violated Section 8(a)(5) and (1) of the
Act as alleged by the General Counsel.
CONCIUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All employees employed by Respondent at its res-
taurant located at 2140 Clement Street, San Francisco,
California, and who are employed in the job classifica-
tions listed in the Independent Restaurant & Tavern
Agreement effective September 1, 1972; excluding all
other employees, guards and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
4. At all times material the Union has been and is now
the exclusive collective-bargaining representative of all
the employees in the aforesaid bargaining unit for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act
by refusing to allow a union business representative
access to its premises as required by the collective-bar-
gaining agreement between Respondent and the Union
and by refusing to furnish the Union with the names,
dates of hire, termination dates, social security numbers,
work classifications and wages for all employees em-
ployed since November 1978 in the appropriate unit.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing finding of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER
The Respondent, Yet Wah Restaurant, 2140 Clement
Street, San Francisco, California, its officers, agents, suc-
cessors, and assigns, shall:
10 I note that, unlike Pioneer Inn Associatures, here Respondent did not
question the Union's majority status but only the validity of the govern-
ing collective-bargaining agreement. I also note that it was Respondent's
refusal to allow the Union access to its premises so that it could deter-
mine whether Respondent was complying with the collective-bargaining
agreement which precluded the Union from engaging in the type of rep-
resentation activities on behalf of the employees which were found in
Pioneer Inn Assroiatre.
"' 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
1. Cease and desist from:
(a) Refusing to bargain collectively with Hotel and
Restaurant Employees and Bartenders Union, Local 2,
Hotel and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, by refusing upon request to
supply relevant information needed by said union to rep-
resent the employees in the appropriate bargaining unit
and refusing to allow the Union access to its premises to
administer the collective-bargaining agreement which in-
cludes a provision allowing the Union access for this
purpose.
The appropraiate bargaining unit is:
All employees employed by Respondent at 2140
Clement Street, San Francisco, California and who
are employed in the job clsssifications listed in the
Independent Restaurant & Tavern Agreement effec-
tive September 1, 1972; excluding all other employ-
ees, guards and supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Furnish, upon request, the above-described Union
the names, dates of hire, termination dates, social secu-
rity numbers, work classifications and wages for all em-
ployees employed since November 1978 in the appropri-
ate unit.
(b) Post at its office and place of business where no-
tices to employees represented by the aforesaid Union in
the bargaining unit hereinabove are customarily posted
by Respondent, copies of the attached notice marked
"Appendix."' 2 Copies of said notice, on forms provided
by the Regional Director for Region 20, after being duly
signed by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees employed in the appropriate bargaining unit
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
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 objections thereto
shall e deemed waived for all purposes
" In the event that the Board's 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 l.abor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"