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78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Karl Kallmann d/b/a Love's Barbeque Restaurant No. The Administrative Law Judge found that none of 62; Love's Enterprises, Inc. and Hotel, Motel & the employees hired by Kallman had ever been em- Restaurant Employees & Bartenders Union Local ployed at the Hayward restaurant, and that there was 50, Hotel, Motel & Restaurant Employees & Bar- no showing that a majority of these employees de- tenders International Union. Cases 32-CA-522 and sired representation by the Union. He further found 32-CA-574 that a preponderance of the evidence does not sup- port the allegation that Respondent Kallman refused September 20, 1979 to hire former employees of the Hayward restaurant because of their affiliation with the Union. The Ad- ministrative Law Judge concluded that Respondent DECISION AND ORDER Kallman was not, therefore, a successor to Respon- dent Love's. The General Counsel contends that the BY CHAIRMAN FANNING AND MEMBERS PENELIO Administrative Law Judge's own findings and credi- AND MURPHY bility resolutions require the conclusion that Kallman possessed union animus and refused to hire Love's On January 25, 1979, Administrative Law Judge former employees because of considerations unlawful William J. Pannier III issued the attached Decision in under Section 8(a)(3)of the Act. He further contends this proceeding. Thereafter, the General Counsel and that Respondent Kallman is a successor to Respon- the Charging Party filed exceptions and supporting dent Love's and therefore violated Section 8(a)(5) of briefs, Respondent Karl Kallmann d/b/a Love's Bar- the Act by refusing to bargain with the Union and by beque Restaurant No. 62 (hereinafter called Respon- changing the rates of pay and benefits without prior dent Kallmann) filed cross-exceptions and a support- notification to or consultation with the Union. We ing brief. Respondent Love's Enterprises (hereinafter find merit in the General Counsel's contentions. called Respondent Love's) filed a cross-exception and The following facts are not in dispute. In Decem- a supporting brief,' and Respondent's Love's and ber 1973, Respondent Love's took over the operation Kallmann filed an answering brief to the exceptions of the Hayward. California, restaurant from a fran- and briefs in support of exceptions filed by the Gen- chisee, not a party to this proceeding. During the pe- 2 eral Counsel and the Charging Party. riod in 1973 when the restaurant was operated by the Pursuant to the provisions of Section 3(b) of the franchisee, a memorandum agreement was executed National Labor Relations Act, as amended, the Na- with Culinary Workers and Bartenders Union, Local tional Labor Relations Board has delegated its au- 823 of the Hotel and Restaurant Employees and Bar- thority in this proceeding to a three-member panel. tenders International Union, AFL CIO (hereinafter The Board has considered the record and the at- called Local 823), the predecessor of the Charging tached Decision in light of the exceptions and briefs Party herein. Under the terms of the memorandum and has decided to affirm the rulings, findings,' and agreement, the franchisee agreed to recognize Local conclusions of the Administrative Law Judge and to adopt his recommended Order with respect to Re- 823 as the sole collective-bargaining representative spondent Love's, but only to the extent consistent for all of its employees coming under the Union's herewith with respect to Respondent Kallmann. charter. Thus. the unit consisted of all employees at the Hayward restaurant engaged in the preparation, I Respondent Love's excepts to the failure of the Administrative Law handling, and serving of food and/or beverages, ex- Judge to find that its franchisees are required to follow section "L" of its cluding office clerical employees, guards, and supervi- operations manual. We find merit in this exception. Respondent Love's vice president, Mesker, testified that Love's franchisees are requested to follow sors as defined in the Act. The agreement further pro- section "L" of the manual which prescribes, inter aula, how the meal is to be vided that: "The Employer agrees to accept, adopt placed on the plate, how it is to be presented, and what portions of products are to be used on the plate served to the customer. and observe all of the wages, hours and other terms 2 Respondent Love's and Kallmann move to strike a portion of the Charg- and conditions of employment contained in the Col- ing Party's brief on the ground that it sets forth facts not contained in the record developed before the Administrative Law Judge. We have not consid- lective Bargaining Agreement between the Union and ered or relied on this section of the Charging Party's brief because it contains the East Bay Restaurant Association, Inc., California facts dehors the record. Accordingly, we find it unnecessary to pass on Re- Licensed Beverage Association, Inc., or its successors spondents' motion. IThe General Counsel and the Charging Party have excepted to certain .... as well as "the Restaurant and Tavern Health credibility findings made by the Administrative Law Judge. It is the Board's Fund Trust Agreement, the Southern Alameda established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the rel- County Restaurant and Tavern Pension Trust Agree- evant evidence convinces us that the resolutions are incorrect. Standard Dr' ment, the health and pensions plans established there- Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his under, and all amendments to said Trust Agreements findings. and plans." When Respondent Love's took over the 245 NLRB No. 17 LOVE'S BARBEQUE RESTAURANT NO. 62 79 restaurant in December 1973, it continued to apply viewing of applicants in the restaurant. After October the memorandum agreement.4 14, the advertisements in the Tribune and the Review On September 26, 1977,5 Respondent's Love's substituted the name and address of "Love's Barbe- closed its Hayward restaurant and terminated all of que Restaurant" for the name and address of the mo- the employees who had been working there. On Octo- tel. ber 20, Respondent Kallmann opened the restaurant The Administrative Law Judge did not credit Kall- for business under a franchise agreement, equipment mann's testimony regarding the manner in which em- lease, and real property sublease with Respondent ployees were hired. He found that, while Kallmann Love's. Respondent Kallmann then operated the res- testified that he was the only official to have inter- taurant, as Respondent Love's had done, using the viewed applicants, Kallmann's assistant manager, same equipment to produce identical products for the Stebban, controverted this testimony by stating that same customer market from the same location. Re- he also had interviewed applicants. He further found spondent Kallmann, however, did not hire any of the that Kallmann's pretrial affidavit stating his reasons employees who had been employed by Respondent for not hiring two former Hayward employees, Wads- Love's. Nor did it recognize the Union or apply the worth and Logan, was inconsistent with his testimony memorandum agreement. Instead, it began nonunion at the hearing concerning these employees.8 Further, the Administrative Law Judge observed operations with an entirely new complement of ap- that normally, when an employer advances a false proximately 30 employees. On October 21, the Union reason for its actions, it is permissible to infer that the commenced picketing the restaurant to protest Re- actions are taken for an unlawful reason. He never- any of the spondent Kallmann's failure to reemploy theless refused to draw this inference from his having the former employees and its failure to recognize discredited Kallmann's testimony. Instead, the Ad- Union as the collective-bargaining representative. ministrative Law Judge found that several circum- On the basis of the foregoing, there is no question stances exist which refute a conclusion of illegal mo- that all the factors for finding successorship are pre- tive. An examination of these circumstances reveals sent but for the failure to retain the former employees no basis for the Administrative Law Judge's finding. 6 of the restaurant. Further, it is well settled that suc- With respect to the question of Respondent Kall- cessorship will be found in such circumstances if the mann's union animus. the Administrative Law Judge new owner fails to hire the predecessor's employees found that Kallmann believed that the choice as to because of their affiliation with the Union.7 Thus, the whether or not the restaurant would be unionized was central question herein is whether Respondent Kall- his to make, and that Kallmann made remarks to the mann refused to hire the former employees of Love's effect that he had a choice as to whether or not to be Hayward restaurant (hereinafter, the former Hay- unionized and that he had chosen to operate non- ward employees) for antiunion reasons. We find that union. The Administrative Law Judge also found that this question must be answered in the affirmative. a similar remark by Kallmann to a picketing em- The record reveals that after entering into the fran- ployee violated Section 8(a)( I) of the Act. Thus, Kall- chise agreement with Respondent Love's, Karl Kall- mann asked former Hayward employee Pingree why mann reserved two rooms at the Vagabond Motel, she did not put down her picket sign, that she could located near the Hayward Restaurant, to be used for be rehired at her previous rate of pay, but that the interviewing job applicants.

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