Tucson Ramada Caterers, Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1965

154 N.L.R.B. 571 (N.L.R.B. 1965)

TUCSON RAMADA CATERERS, INC. 571
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board 's Regional Office, Seven-
teenth and Champa Streets, Denver, Colorado , Telephone No. 297-3551.
Tucson Ramada Caterers , Inc. and Catering Industry Employees
Local #413 and Bartenders Union Local #476 through the
Local Joint Executive Board, affiliated with Hotel & Restau-
rant Employees & Bartenders International Union, AFL-CIO.
Case No. 08-CA-1149. August 18,1965
DECISION AND ORDER
On May 25, 1965, Trial Examiner Martin S. Bennett issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent has engaged in and is engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision and memorandum of law in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and memorandum
of law, and the entire record in the case, and hereby adopts the find-
ings,, conclusions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Recommended Order of the Trial Examiner, and orders
that Respondent, Tucson Ramada Caterers, Inc., Tucson, Arizona,
its officers, agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
i The Trial Examiner found that, although an employee overheard Lillian Berne,
secretary -treasurer of the Respondent , tell Issie Berne, president of the Respondent, that
she wished she knew who had signed union cards as they should all be discharged; he
found this not to be violative of Section 8(a) (1) of the Act because there was no evidence
that this statement "was intended for hearing by employees ." In the absence of ex-
ceptions thereto, we adopt this finding pro forma.
154 NLRB No. 44.
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This matter was heard at Tucson , Arizona, on February 10 and 11, 1965. The
complaint 1 alleges that Respondent , Tucson Ramada Caterers , Inc., has engaged
in unfair labor practices within the meaning of Section 8 ( a)(1) and ( 5) of the
Act. Briefs have been submitted by the General Counsel and Respondent.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Tucson Ramada Caterers , Inc., is an Arizona corporation maintaining its prin-
cipal office and place of business at Tucson, Arizona, where, under a lease from
the operator of a motel, it is engaged in the selling and serving of food and bev-
erages as a bar, restaurant, and coffee shop. These sales and services are made
to members of the traveling public, interstate and intrastate, and exceed $500,000
per annum in value. Respondent annually purchases goods, supplies , and equip-
ment valued in excess of $10,000 which are shipped to it directly and indirectly
from points outside the State of Arizona. I find that the operations of Respondent
affect commerce within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Catering Industry Employees Local #413 and Bartenders Union Local #476
through the Local Joint Executive Board, affiliated with Hotel & Restaurant Em-
ployees & Bartenders International Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
In May 1964, the Union commenced an organizational campaign among Re-
spondent's previously unorganized kitchen, bar, and dining room employees. This
group totaled approximately 50 and constitutes a unit hereinafter found to be
appropriate for the purposes of collective bargaining. By the end of August, 32
or 33 authorization cards were obtained.
On August 25 Secretary Eva Davis of the Union wrote to President Issie Berne.2
Davis stated that a majority of Respondent's employees had designated the Union
as their bargaining representative, requested recognition, and asked for a meeting
to negotiate a contract. She offered to submit signed authorization cards to any
mutually agreed-upon neutral party for a cross-check.
On August 26 counsel for Respondent replied and stated that "we prefer to
have the signed authorization and membership cards examined to determine if
you represent a majority of the employees in the bargaining unit." A meeting was
arranged and duly held on August 31. Later that day, counsel for Respondent,
inter alia, declined to recognize the Union without a Board certification, offering
to consent to such an election.
On September 3 the Union filed a petition for certification of representatives
in Case No. 28-RC-1257, and on September 16 the parties agreed to a consent
election to be held on September 28. The election was held, the Union lost, and
objections were filed on September 29. On October 29, 1964, the Regional Di-
rector found merit in the objections, ordered the election set aside, and directed
the holding of a second election. On November 13, 1964, the Union withdrew
its petition for an election and this was approved by the Regional Director. As
indicated, the instant unfair labor practice charge was filed on September 30 and
the complaint issued on November 18.
IIssued November 18, 1964, and based upon a charge filed September 30, 1964, by
Catering Industry Employees Local #413 and Bartenders Union Local #476 through
the Local Joint Executive Board, affiliated with Hotel & Restaurant Employees & Bar-
tenders International Union, AFL-CIO, herein called the Union.
2 Berne is the principal stockholder of Respondent . His wife, Lillian Berne, Is a stock-
holder and is secretary-treasurer . Both are active in the operation of the business
TUCSON RAMADA CATERERS, INC. 573
The complaint alleges that on and after August 25, 1964, following receipt of
the Union's request for recognition, Respondent engaged in various ty_7es of con-
duct violative of Section 8(a)(1) of the Act including interrogation, threats, and
unilateral grants of wage increases. The General Counsel also alleges that Re-
spondent lacked a good-faith doubt of the Union's majority and that by refusing
to recognize and bargain with the Union on and after August 31, 1964, it has
engaged in unfair labor practices within the meaning of Section 8(a)(5) of the
Act.
B. Interference, lest Taint, and coercion
President Berne was aware of the union organizational campaign as early as
June 26, when he discovered organizer Jesse Quaid signing up employees in the
coffee shop. On Sunday, July 12, an organizational meeting was held at the
home of employee John Clark.3 Berne testified that he learned of this meeting
"a couple of days" later. Employee Tony Haro, who had attended, volunteered
to Berne the information that the party had been held. Berne vaguely claimed
herein that "some circumstance" had brought up the discussion of the meeting, but,
unimpressively, was unable to recall just what it was.
However, Haro, on this occasion, orally gave Berne the names of those employ.
ees who attended the meeting and Berne wrote them down. As Beine uncontro-
vertedly testified, Haro volunteered the information. However, as I read Berne's
testimony, he proceeded to interrogate Haro concerning those present and re-
corded their names. This, I find, went beyond being an interested listener.
Patricia Riba was employed as a waitress by Respondent until September 5,
1964. Sometime in August, and apparently around August 26, Berne was talking
with another waitress, Helen Klitus, and Riba came upon the scene; Berne wag
aware of her presence. Riba then heard Berne state "if necessary I could fire
the whole bunch and replace them." Because of other conduct by Berne set forth
below, and on the entire picture, I find that Berne was referring to the Union and
its request for recognition received that date. Klitus was readily available to
refute Riba but was not called as a witness, Berne denied making the statement.
Berne's hostility to the Union is shown elsewhere and his recollection of certain
events, particularly a Christmas party described below, was less than objective.
Accordingly, Riba has been credited herein.
After receiving the Union's demand for recognition on August 26, Berne spoke
with employee Edward Matthews. The latter uncontrovertedly testified that Berne
asked whether anyone had shown him "any Union cards" and if Matthews had
signed a card. Although Matthews replied in the negative, Berne told him that
he should not have done so. It may be noted that Matthews' name was on the
list of those attending the union meeting on July 12 and previously furnished to
Berne by Haro.
On August 29 Berne spoke with employees John Clark and Frank Gregorio.4
Clark testified, and I find, that Berne had the Union's request for recognition in
his hand and asked the two if they had authorized the Union to speak for them.
Gregorio replied in the negative. Clark replied that he had signed a card and
that the Union had signed up a majority. Clark and Berne then went to Berne's
office where Berne argued with Clark that a union could not help them because
Arizona was a right-to-work State. Berne was not questioned concerning the
earlier part of the conversation, but denied any reference to right to work.
That same afternoon, according to Clark, Lillian Berne spoke to him, asking
how he could sneak behind her back and "bring the Union in." 5 She then stated
that she would like to "stick a knife" into everyone who had signed a card. Ac-
cording to Lillian Berne, she had been cool to Clark because she resented the
holding of a union meeting at his home, considering this to be a matter for union
personnel rather than company employees. When she appeared on this occasion,
Clark asked if she was angry with him. She replied that she was disgusted with
him, that she had no objection to him belonging to a union, that she was angry
because he ignored the fact that Issie Berne had helped him financially, and with
3 Respondent's defense to the refusal-to-bargain charge, viz, that minors were present
and beer served on this occasion, is treated below.
* The General Counsel concedes in his brief, contrary to his original contention, that
Gregorlo is not a supervisor. The record supports Respondent's position that Gregorio
is not a supervisor within the meaning of the Act.
i Issie Berne testified that he had passed on to Lillian Berne the information concern-
ing the union meeting at Clark's home.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clothes, and that this was "just like knifing him [Berne] in the back." On cross-
examination, Clark flatly rejected the suggestion that Lillian Berne had so spoken
and reaffirmed his testimony on direct.
Clark was a clear and forthright witness who impressed me as telling the truth.
The record well demonstrates that both Issie and Lillian Berne were much in-
volved emotionally in this matter. And, as will appear, Clark's version of the
Christmas party, described below, is found to be the more reliable. Accordingly,
the testimony of Clark, who is still in Respondent's employ, has been credited
herein. I find, under these circumstances, that the remark attributed to Lillian
Berne constituted a threat of reprisal to those engaging in union activities.
Late in August, Berne approached employee Myrtle Hairfield who had been on
vacation during July. He asked if she was a union member and Hairfield replied
in the negative. Berne was not questioned concerning this.6
A union meeting was held on Sunday, September 6. According to Hairfield,
Berne approached her the following day and asked how the meeting had gone;
Hairfield evaded an answer. Berne persisted, asking why she had attended this
meeting. Berne did not recall the conversation.
Similarly, on September 7, Berne approached Edward Matthews, as the latter
uncontrovertedly testified , and stated that he knew Matthews had signed a card
and that he should not have done so. Berne further stated that he knew Mat-
thews' cousins, Willie and Lewis Blake, had signed cards and told Matthews to
speak with them "against the Union."
Eugene Manley, a member of the Union and out of work, was told by a bar-
tender employed elsewhere that Respondent needed a bartender for Sunday work.
He called upon Berne on September 16 and introduced himself, explaining that he
had heard of the vacancy, and asked for work. Berne asked where Manley had
previously worked and Manley duly responded. Berne also asked if he belonged
to the Union and Manley replied in the affirmative. Berne then stated that Man-
ley was "wasting your time, I wouldn't hire you under any consideration." Manley
asked if Berne was angry with Jack Kelley, business agent of Bartenders Union
Local #476. Berne replied that he was, because he, Berne, had "hired a couple
of his Union hands and then he come in here and tried to organize the place."
According to Berne, Manley applied for the job and was told that there was no
vacancy. Berne then suggested that if he was a union member he should contact
Kelley who might locate a position for him.
Respondent stresses that it had hired employees through the Union and the
record so demonstrates. On the other hand, it further appears that this was not
an exclusive hiring system, but rather a situation where Respondent hired appli-
cants directly and also contacted the Union when it needed employees.
What is significant is that Respondent has not contacted the Union for help
since it requested recognition in August. Stated otherwise, the inference is war-
ranted that Respondent utilized the union as a nonexclusive source of employees so
long as it did not seek recognition as their bargaining representative.
Another matter is of interest in this area, although not alleged in the complaint
and therefore not passed upon as such. Berne uncontrovertedly testified that he
use an employment application form which requires the applicant to disclose his
union membership, if any. I deem his inquiry concerning union membership, as
testified by Manley, to be entirely consistent with the use of such a form.
Berne also testified that he promoted an employee to work as bartender "about
2 months" prior to February 11, 1965, the date on which Berne testified herein.
There is no evidence as to when the vacancy occurred. Moreover, it would seem
that this was a situation where the two regular bartenders had become reluctant to
work a long Sunday shift. In view of the foregoing factors, I credit Manley
herein.
Following this in chronological order, the General Counsel presented evidence
that, on or about September 19, Berne spoke with Nellie Shook. Her testimony is
not clear and at best relates to the receipt by Shook of a letter from Berne, or
from the Union, and attributes nothing to Berne beyond an inquiry concerning
receipt of a letter.
Willie Blake, Jr., testified that around the last of September he overheard Issie
and Lillian Berne speaking with each other in the kitchen. Lillian Berne told
her husband that "he ought to fire every damn one of them" and that she wished
6 No reliance is placed herein on other statements by Berne or Hairfield that day. They
reflect only his opinion that a strike might ensue. I similarly do not rely on other
remarks by Berne, in answer to a question by Hairfield, that she should get the answer
from a union official.
TUCSON RAMADA CATERERS, INC. 575
she "knew who signed those damn cards." He also testified that on the following
day he overheard Lillian Berne state to an employee named Helen [apparently
Klitus] that she wished "she knew who signed those damn cards."
Blake was most vague concerning the latter conversation, variously placing it in
June, August, and September. And there is no evidence that the former statement
was intended for hearing by employees. Under these circumstances, I base no
finding adverse to Respondent upon these two incidents, although, in evaluating
Respondent's overall conduct, the earlier statement by Lillian Berne is entitled to
weight herein.
Also not relied on herein are several other incidents. There is testimony by
Manny Bonillas who applied for a job in late December 1964. Berne told him
that three or four prior applications had been filed, gave him an application, and,
at the end of the conversation, asked if Bonillas belonged to the Union. Bonillas
replied in the affirmative and did not get the job. This inquiry does not go
beyond the employment form, not attacked herein, and in any event would be
cumulative. There is also evidence that Tony Hato applied for work on January 5,
1965, after quitting in September 1964, and was required by Berne to give a written
affidavit reflecting the information previously supplied by him orally in July identify-
ing those who attended the July 12 meeting; this was allegedly done upon advice of
Respondent's counsel.
John Clark testified that on Thursday, February 6, 4 days prior to testifying
herein, Berne told him that he wanted to find out who stated that Lillian Berne
wished to plunge a knife into someone and that he would discharge the culprit.
Again, this reflects Respondent's attitude toward the Union, but this was not
alleged in the previously issued complaint which was not amended.
It is also clear that Respondent unilaterally gave an unprecedented number of
wage increases during the month of September 1964, between the receipt of the
Union's demands for recognition on August 26 and the ultimate holding of the
election on September 28. Thus, 9 increases were given September 2, 2 on Sep-
tember 3, 3 on September 16, and 1 on September 24, making a total of 15.7
By contrast, during the other months of 1964, the number of raises ranged
between zero and seven; indeed, except for September, the raises from May through
December ranged from zero to three per month. There is no evidence of a set
pattern of raises or salary evaluation prior to September. And there is evidence
that only one of those receiving a raise, Edward Matthews, had previously asked
for it during June.
This concentration of wage increases, absent any explanation therefor, warrants
the inference that they were calculated and were concentrated to influence the
employees in the area of choice of a bargaining representative. It may be noted
that this concentration of wage increases on September 2 was announced for the
first time on September 4 when the paychecks were handed out. This was the
date that the Respondent learned that the Union had filed a petition for an election
on the previous day and, I find, was more than pure coincidence. I find that
these wage increases in September 1964 were reasonably calculated and intended
to undermine the Union.
I find that Respondent has engaged in conduct violative of Section 8(a)(1) of
the Act by the following conduct which, on the entire picture, carried a coercive
implication: By questioning an employee concerning the identity of employees
who attended a union organizational meeting; by stating that union adherents
would be discharged; by interrogating employees concerning their union mem-
bership and asking if they had seen or signed cards; by threatening employees with
reprisals because they had signed union cards; by questioning an employee con-
cerning attendance at a union meeting; by telling an employee that he should
not have signed a union card and instructing him to speak against the Union
to relatives who had signed such cards; by telling an admitted union member
that he would not be hired by Respondent under any circumstances because the
Union had attempted to organize the establishment; and by unilaterally granting
wage increases reasonably calculated to influence the electorate in a forthcoming
representation election.8
7 Two were to Joseph Brislcin and Lucian Hamby. Respondent conceded herein that
their interests were managerial in nature and that they should be excluded from the
unit. These two are not considered in the discussion that follows
O No adverse findings are based upon certain evidence that Respondent reduced meal
content and uniform allowances ; aside from the fact that the former is controverted, these
were not alleged in the complaint.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Refusal to bargain
Appropriate Unit
The complaint alleges, Respondent's answer admits, and I find that all kitchen,
dining room, and bar employees in the food and beverage departments of
Respondent, excluding office employees, guards, watchmen, and supervisors, consti-
tute a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
Majority Representation
There were 50 employees in the unit at the time material herein , viz, August 26,
when Respondent received the Union's request for recognition, and August 31, 1964,
when the parties met and Respondent refused recognition on the basis of a card
check.9
The General Counsel introduced in evidence 32 cards signed by employees
within the bargaining unit on dates prior to August 25. All were currently
signed with the exception of that of Helen Klitus who joined the Union in 1960,
has continuously been a member, has voluntarily paid dues and has not been
subject to a dues checkoff I find that her card and the others which authorized
the Union to "represent me in my behalf, to negotiate and execute any all agree-
ment pertaining to wages, hours and conditions of work" are clear, unambiguous,
and mean what they say. All signatures were witnessed by persons who
identified them herein. Excent for Respondent's contention that several were
signed at a meeting where beer was served, treated and rejected below, there
is not the remotest indication of any undue influence.
I find, therefore, that on August 26, when the Union's request for recognition
was received, and that on August 31, when Respondent declined same absent a
Board certification, the Union was, and now is, the representative of the employees
in the above-described appropriate unit within the meaning of Section 9(a) of
the Act
Refusal to Bargain
As noted above, the Regional Director set aside the election of September 28
on the basis of timely objections, one of which was the granting of the wage
increases described above The Union thereafter withdrew its petition and this
was approved by the Regional Director It is current Board policy, on this posture,
that the Union's loss of the election does not preclude consideration of the
instant refusal-to-bargain charge. Bernel Foam Products Co., Inc., 146 NLRB
1277, and Irving Air Chute Company, Inc., Marathon Division, 149 NLRB 627.
Turning to the sequence of events, Eva Davis, secretary of the Union, wrote
to Respondent on August 25, 1964, as follows-
This will advise you, as of this date, the majority of your kitchen , dining
room, food and beverage department employees have chosen Hotel, Motel,
Restaurant Workers' Local No. 413 and Bartenders Local No. 476, thru
the Local Joint Executive Board, as their collective bargaining representative.
We therefore request recognition as the exclusive bargaining representative
of the afore-mentioned employees. We further request that you meet with
us, as soon as possible, for the purpose of negotiating a collective bargain-
ing agreement covering wages, hours and other conditions of employment.
Should you have any doubt as to our representing a majority of your
employees in the above-described bargaining unit, we will be more than
willing to submit the signed authorization and membership cards of your
employees to a neutral party, mutually agreed upon , and to allow that
third party to compare these cards with your present payroll.
We realize, of course, there may be some aspects of this matter you feel
should first be resolved before the recognition requested above can be
granted. If so, we want you to know we are more than willing to meet
with you or your representatives for the purpose of discussing such issues,
if any, for mutually satisfactory disposition.
9 Herman Gray appears on the payroll for the week ending August 26, but not on that
for the week ending September 2. He worked four Sundays during August, according to
Berne. The calendar indicates that the last Sunday in August was August 30. While
this is debatable , he has not been included in the unit and his timely and appropriately
signed card has not been relied on below.
TUCSON RAMADA CATERERS, INC. 577
In the event you are willing to accept our offer to submit these authoriza-
tion cards for a check, you may reach us at the above address. We will then
meet with you or your representatives for the purpose of selecting the third
party to carry out that comparison of cards and current payroll.
This was. received on August 26, and the same day counsel for Respondent
replied, in part, as follows:
In accordance with your letter we prefer to have the signed authorization
and membership cards examined to determine if you represent a majority
of the employees in, ',the bargaining unit. If you will be good enough to con-
tact me, I will be pleased to discuss with you the mechanics of arranging for
an examination of the authorization and membership cards. Any meetings
or discussion that we may have with you will be without prejudice to the
rights of our client to pursue any rights or remedies which they may have
under existing law.lo
A meeting was arranged for the morning of August 31, and attended by Eva
Davis, Gustava Hollohan Murray, International representative of Local 476,
James Kelley, a business agent of 476, organizer Jesse Quaid, and counsel for
Respondent, Raymond Hayes. The position of the Union is basically reflected
in a typed memorandum which it brought to the meeting and presented to Hayes.
The memorandum states:
We, the undersigned Union and Employer agree to a cross check of
employees' authorization cards of employees who are on the payroll period
of August 14 thru 21, 1964, and who are in the bargaining unit (Culinary
Workers, Bartenders, Food & Beverage Dept) of the employer.
It is agreed that an impartial person will be selected agreeable by both
parties to make the cross check.
In the event the Union represents a majority (51%) of the employees
within the bargaining unit, the employer agrees to recognize the Union and
to, in good faith, immediately negotiate and sign a collective bargaining
agreement with the Union.
In the event the Union does not represent 51% of the employees, the
Union agrees not to press claim for recognition for a year from the date of
the payroll agreed upon.
According to Murray, Hayes asked to see the cards and Quaid responded that
he would show them to an impartial person. Hayes asked whom the Union had
in mind to conduct a cross-check and the union representatives named three
local persons, including a local judge, a priest, and an ex-mayor, not necessarily
in that order. Hayes responded that all enjoyed a good reputation.
There is some difference between the testimony of Hayes, on the one hand,
and that of the witnesses for the Union, but for the purposes of this discussion
I am taking Hayes' testimony at face value. Thus, in addition to the facts found
above, Hayes stated that Respondent had a "serious question" as to the method
by which the signatures to these cards had been obtained; that under the circum-
stances it would be desirable for the Union to file a petition for an election, to
which Respondent would consent; and that if the Union did not file, Respondent
would. He stated that he would contact his client at lunch, ascertain whether
he would agree to a card check, and notify the Union that afternoon.
Hayes duly telephoned the union office that afternoon, advised that Respondent
would not agree to a card check, asked if the Union would file for an election
if Respondent consented, and Murray replied that it would. She testified, and I
find, that Hayes, when asked why Respondent would not agree to a cross-check,
replied that the employees who signed the cards did not know what they were
signing. Hayes candidly admitted herein that he made no independent investiga-
tion concerning the cards, that his position was based solely upon information
supplied by Berne, and that this information related solely to the union meeting
on July 12, the presence of minors at the meeting, and the serving of beer.
This presents for consideration the well-identified meeting of July 12, and the
record discloses the following facts. John Clark arranged for a union meeting
to be held at his home at 3 p.m. Eight or nine employees attended, as did Union
Representatives Quaid, Davis, and Murray. Several cards were signed during
10 It may be noted that this reply is silent as to any suggestion that the Union go
through an election.
206-446-66-vol. 151 38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meeting , which ended at approximately 4:30 p .m., and the union representa-
tives left. Thereafter , cokes and beer were served . Several bottles of beer were
consumed by those present , although they were assisted in great measure by a
nonemployee friend of Clark who arrived at the close of the meeting and
immediately proceeded to make substantial inroads into the supply . While at
least several of those present were minors, it does not appear that any of them
;drank a bottle of beer. In any event , no beer was consumed until after the
meeting closed and cards were signed prior to the close.
On the face of the foregoing , there is absolutely nothing to support Respondent's
defense herein which perforce amounts to a claim, although not so stated, that
the cards were signed under the influence of beer. Moreover , there is evidence
that Respondent does not uniformly maintain so sacrosanct a position about
minors being present while alcohol , indeed in the form of hard liquor , is being
served.
Issie , and Lillian Berne have a son , David , who was 18 years of age as of
February 1965. He was therefore 16 or 17 at the time of a private Christmas
party held by the Bernes for their employees in December 1963. Minors attended
this party and hard liquor was served , although , according to Berne, none was
served to minors . Berne originally testified that his son did not tend bar on
this occasion . His assistant , Joseph Briskin , claimed that he, Briskin , was the
bartender on this occasion together with one Anthony Klitus, a regular bartender
for Respondent , and that David Berne did not function in this capacity.
However, John Clark identified David Berne as the only bartender ; he recalled
that young Berne served liquor and that employee Tony Haro, referred to above
and a minor, became intoxicated . Similarly, employee Myrtle Hairfield recalled
that David Berne was working behind the bar and further that he served hard
liquor. She recalled neither Briskin or Klitus as being on the scene . Klitus
did not testify.
Berne subsequently changed his testimony and recalled that his son did work
behind the bar on this occasion , assisting Briskin when the latter "got busy," but
claimed that his son served only soft drinks. The testimony of Lillian Berne is
to the same general effect. Needless to say, this tends to leave bartender Klitus
in limbo, as it were, because while firmly, if not eagerly , placed on the scene by
Briskm, he was promptly removed therefrom by Issie and Lillian Berne.
Be that as it may, I believe and find that young Berne served behind the bar
on this occasion . I do not dispute the testimony of Berne that his son neither
drinks nor smokes. But the fact immediately appears that , even if he served
only soft drinks, Respondent deemed his proximity to hard liquor to be less
serious than the proximity of older boys, the latter his employees , to beer.
To sum up, I find, on a clear preponderance of the evidence , that Respondent
did not entertain a good -faith doubt as to the genuineness of the Union 's majority.
I believe and find that it seized upon the furtive report from employee Haro
concerning the July 12 meeting , entirely devoid of any evidence of undue influence
upon the card signers , and utilized it as a device to avoid recognition . Moreover,
it thereafter engaged in conduct heretofore found to be violative of the Act which
was reasonably calculated to dissipate the Union 's majority . Fred Snow , et al.,
d/b/a Snow & Sons v. N.L.R.B ., 308 F . 2d 287 (C.A. 9), and N.L.R.B. v Trim fit of
California , Inc., 211 F. 2d 206 (C.A. 9).
I find, in view of the foregoing circumstances , that Respondent , by denying
recognition to the Union on August 31, 1964 , has refused to bargain within the
meaning of Section 8 (a) (5) of the Act. I further find that by unilaterally granting
entirely discretionary and in no way automatic wage increases in September in
heavy concentration , Respondent has likewise engaged in conduct violative of
Section 8 (a)(5) of the Act and that by said refusal to bargain Respondent has
engaged in conduct violative of Section 8(a)(1) of the Act. N.L.R.B . v. Benne
Katz, etc, d/b/a Williamsburg Steel Products Co., 369 U.S. 736 ; N.L.R.B. v.
Elliott-Williams Co., Inc., 345 F. 2d 460 (C.A. 7); N.L.R.B. v. Winn-Dixie Stores,
Inc., etc., 341 F. 2d 750 (C.A. 6); Indiana Rayon Corporation , 151 NLRB 130;
Frank C . Varney Co., Inc., 151 NLRB 280; and Anthony O. Grimaldi, d/b/a
Superior Rambler, 150 NLRB 1264.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, and occurring
in connection with its operations set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
TUCSON RAMADA CATERERS, INC . 579
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom, and that it take certain affirmative
action designed to effectuate the policies of the Act. I shall further recommend
that Respondent be ordered to bargain with the Union, upon request, concerning
rates of pay, wages, hours, and other terms and conditions of employment and,
if an understanding is reached, embody such understanding in a signed agreement.
The unfair labor practices committed by Respondent involve conduct in deroga-
tion of the principles of good-faith collective bargaining. The inference is
warranted that it maintains an attitude of opposition to the purposes of the Act
with respect to the protection of employee rights in general. It will accordingly
be recommended that Respondent cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
I Tucson Ramada Caterers, Inc., is an employer within the meaning of Sec-
tion 2 (2) of the Act.
2. Catering Industry Employees Local #413 and Bartenders Union Local
#476 through the Local Joint Executive Board, affiliated with Hotel & Restaurant
Employees & Bartenders International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All kitchen, dining room, and bar employees in the food and beverage
departments of Respondent, excluding office employees, guards, watchmen, and
supervisors, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Catering Industry Employees Local #413 and Bartenders Union Local
#476 through the Local Joint Executive Board, affiliated with Hotel & Restau-
rant Employees & Bartenders International Union, AFL-CIO, has been, since
August 26, 1964, and now is, the exclusive representative of the employees in the
above-described appropriate unit within the meaning of Section 9(a) of the Act.
5. By refusing to recognize and bargain with the Union on and after August 31,
1964, Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
6. By the foregoing conduct, and in the respects heretofore enumerated,
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is hereby ordered that Respondent, Tucson
Ramada Caterers, Inc., Tucson, Arizona, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with Catering Industry Employees Local
#413 and Bartenders Union Local #476 through the Local Joint Executive
Board, affiliated with Hotel & Restaurant Employees & Bartenders International
Union, AFL-CIO, as the exclusive representative of its employees in the above-
described appropriate unit.
(b) Questioning employees concerning the identity of employees who attend
union organizational meetings; stating to employees that union adherents will be
discharged; interrogating employees concerning union membership and if they
have seen or signed union cards; threatening employees with reprisals because
they have signed union cards; questioning employees concerning attendance at
union meetings; telling employees that they should not have signed union cards
and to speak against the union with relatives who had signed such cards; telling
union members that they will not be hired because a union attempted to organize
the establishment; and unilaterally granting wage increases for the purpose of
influencing votes in a representation election.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining, or coercing employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist the above-named or any other labor organization, to bargain
collectively through representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Upon request, bargain collectively with the above-named labor organization
as the exclusive representative of the employees in the above-described appropriate
unit with respect to rates of pay, wages, hours of work, or other terms and
conditions of employment, and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its premises in Tucson, Arizona, copies of the attached notice
marked "Appendix." ii Copies of said notice, to be furnished by the Regional
Director for Region 28, shall, after being duly signed by Respondent, be posted
by it immediately upon receipt thereof, and be maintained for a period of 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 28, in writing, within 20 days
from the date of receipt of this Decision, what steps it has taken to comply
herewith.12
UIn the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order".
In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain with Catering Industry Employees Local
#413 and Bartenders Union Local #476 through the Local Joint execu-
tive Board, affiliated with Hotel & Restaurant Employees & Bartenders Inter-
national Union, AFL-CIO, as the exclusive bargaining representative of all
kitchen, dining room, and bar employees in our food and beverage depart-
ments, excluding office employees, guards, watchmen, and supervisors and,
if an understanding is reached , embody such understanding in a signed
agreement.
WE WILL NOT question employees concerning the identity of employees who
attend union organizational meetings ; state to employees that union adherents
will be discharged; interrogate employees concerning union membership and
ask if they have seen or signed union cards; threaten employees with reprisals
because they have signed union cards; question employees concerning attend-
ance at union meetings; tell employees that they should not have signed
union cards and direct them to speak against-the union with relatives who
have signed such cards; tell union members that they will not be hired
because a union attempted to organize the establishment ; and unilaterally
grant wage increases for the purpose of influencing votes in a representation
election.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
INT'L BROTHERH'D OF ELECTRICAL WORKERS, LOCAL 781 581
organizations , to join or assist the above-named or any other labor organiza-
tion , to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any or all such activities.
TUCSON RAMADA CATERERS, INC.,
Employer.
Dated------------- ------ By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of
posting, and must not be altered, defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, 1015
Tijeras Street , NW., Albuquerque, New Mexico, Telephone No. 247-2520, if they
have any question concerning this notice or compliance with its provisions.
International Brotherhood of Electrical Workers , Local Union
No. 781, AFL-CIO 1 and Georgia Pacific Corporation, Tissue
Products Division.' Case No. 3-CD-134. August 18, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following the filing of charges by Georgia
Pacific alleging that the Respondent had violated Section 8 (b) (4)
(D) of the Act by engaging in conduct to force Georgia Pacific to
assign certain work to members of the IBEW rather than to its em-
ployees who are represented by International Brotherhood of Pulp,
Sulphite and Paper Mill Workers, and its MacDonough Local No.
387, AFL-CIO.' A hearing was held before Hearing Officer,
Thomas J. Sheridan, on April 15, 22, and 23, 1965. All parties
appeared at the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to adduce evi-
dence bearing upon the issues. The rulings of the Hearing Officer
made at the hearing are free from prejudicial error and are hereby
affirmed. Briefs were filed by Georgia Pacific, IBEW, and Paper
Mill Workers and have been duly considered.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Jenkins].
1 Herein called IBEW or Respondent . The name of this Union was amended at the
hearing.
2 Herein called Georgia Pacific or Employer.
S Herein called Paper Mill Workers . The name of this Union was amended at the
hearing.
154 NLRB No. 43.