East Belden Corp.Download PDFNational Labor Relations Board - Board DecisionsDec 12, 1978239 N.L.R.B. 776 (N.L.R.B. 1978) Copy Citation DECISIONS OF NATIONAL LABOR RELATIONS BOARD East Belden Corporation and Bartenders and Culinary Workers Union, Local 126, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case 20-CA - 13585 December 12. 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELl( AND TRUESDAL E On August 31, 1978, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs ' and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, East Belden Corpora- tion, Tiburon, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, except that the attached Appendixes A and B are substituted for those of the Administrative Law Judge. The Respondent has requested oral argument. 'Ihis request is herebh denied as the record. the exceptions. and the briefs adequately present the issues and the positions of the parties The General Counsel has moved to strike certailn portions of Respon- dent's brief and Respondent opposed this motion In siew of our resotlution of this case, the General Counsel's request is hereby denied 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not t(l over- rule an Administrative Law Judge's resolutions with respect to credihillly unless the clear preponderance of all of the relesiant evidence coilnsinces us that the resolutions are incorrect Standard Dr Wu/'ll Prodlt-rs. In .91 NLRB 544 (1950). enfd 188 F.2d 362 (3d ('ir 1951). We hae carefully examined the record and find no basis for reversing his findings. In adopting the Administrative L aw Judge's recommended Order. we note that in Appendixes A and B one of the employees is mistakenly listed as "Hermine Boneck." when, in fact. the record indicates that the clirrecl spelling is "Hermine Honeck." We shall therefore correct the Administra- live Law Judge's Appendixes A and B accordingly APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL recognize and, upon request, bargain collectively with the Union, Bartenders and Cu- linary Workers Union, Local 126, Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, as the exclusive repre- sentative of all our employees in the appropriate bargainino unit described below, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such un- derstanding in a signed agreement. The appro- priate bargaining unit is: All employees employed by us at the Wind- jammer bar and restaurant, Tiburon, Califor- nia, excluding guards and supervisors as de- fined in the National Labor Relations Act. WE WILL, upon request by the above-named Union, revoke the unilateral changes in the rates of pay, wages, and other terms and conditions of employment which we have insti- tuted in the appropriate bargaining unit, until such time as we negotiate with the Union in good faith to agreement or an impasse in negoti- ations is reached. WE WILL make whole the employees in the ap- propriate unit for any loss of pay or other bene- fits they may have suffered as a result of the aforesaid unilateral changes, with interest, and continue such payments until such time as we negotiate in good faith with the Union to agree- ment or to an impasse. Wf WILL pay Mark Mason for any earnings he lost as a result of his discharge on October 2, 1977, plus interest from the date of his discharge until February 20, 1978. WE. Wii.L offer to reinstate, if we have not al- read)y done so, the persons named below, who were discharged October 2, 1977, to their former jobs or, if such jobs no longer exist, to substan- tially equivalent jobs, without loss of seniority or other rights previously enjoyed and We wlL I reimburse them for any loss of earnings suffered because of their discharge, together with inter- est. Kalisa Fallon Dick Johnson Alan Leibowitz Heather Healey Herb Holzmann Hermine Honeck 776 EAST BELDEN CORPORATION Gloria Mazzucco David Reynolds Gloria Samuel Beverly Souza Armand Allegra, Jr Jesus Aqular Tom Atkin Adolfo Camacho Harry Cohen Antonio Delgardo Donna Diana Lee Duran Todd Duran Michael Gravel Yam Hak-Ming William Allen Ricardo Imeri Orlando Jefferson Michael Labne Donald Jay Lesley Ricardo Lopez Vic Lubet Jeff Mason Lilli McHugh Mike Morand Arturo Rico Jose Rodriquez Dennis Roe Hamilton Townsley Steve Washington Armand "Ted" Allegra, Sr. Genaro Amezcua WE WILL NOT refuse to recognize and bargain collectively with the above-named Union as the exclusive bargaining representative of our em- ployees in the appropriate unit. WE WILL NOT unilaterally change the rates of pay, wages, hours and/or other terms and condi- tions of employment of the employees in the ap- propriate unit in derogation or our bargaining obligations to the above-named Union and to the rights of employees under the National La- bor Relations Act. WE WILL NOT discourage membership in the above-named Union, or in any other union, by discharging employees or otherwise discriminat- ing against them in any manner with regard to hire and tenure of employment or conditions of employment. WE WI L NOT question employees about their union sympathies or their willingness to support a strike sponsored by a union. WE WILL NOT solicit employees to withdraw from a union. WE WILL NOT promise employees benefits of employment to dissuade them from joining or supporting a union. WE WILL NOT threaten employees with dis- charge because they are represented by a union. WE WILL NOT tell employees that we do not intend to sign a contract with the above-named Union. WE WILL NOT condition employees' employ- ment upon their agreeing not to support a strike sponsored by a union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act. EAsr BEI.DEN CORPORATION APPENDIX B Kalisa Fallon Dick Johnson Alan Leibowitz Gloria Mazzucco David Reynolds Gloria Samuel Beverly Souza Armand Allegra, Jr. Jesus Aqular Tom Atkin Adolfo Camacho Harry Cohen Antonio Delgardo Donna Diana Lee Duran Todd Duran Michael Gravel Yam Hak-Ming Heather Hlealey Herb Holzmann Hermine Honeck Ricardo Imeri Orlando Jefferson Michael Labrie Donald Jay Lesley Ricardo Lopez Vic Lubet Jeff Mason Mark Mason Lilli McHugh Mike Morand Arturo Rico Jose Rodriques Dennis Roe Hamilton Townsley Steve Washington DECISION SrATFMENI OF THE CASE JFRROIlD 1H SHAPIRO. Administrative Law Judge: The hearing in this case held June 6, 7, and 8, 1978, is based upon unfair labor practice charges filed by the above- named labor organization on January 3, 1978, as subse- quently amended, and a complaint issued February 17, 1978, amended at the hearing, 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 East Belden Corporation, herein called Respondent. has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act,. herein called the Act. Re- spondent filed an answer denying the commission of the alleged unfair labor practices. Upon the entire record.' from my observation of the de- meanor of the witnesses, and having considered the post- hearing briefs, I make the following: FINDINGS OF FA(T I THE BUISINESS AND LABOR ORGANIZATION INVOLVED The business enterprise involved in this case is a restau- rant and bar known as the Windjammer located in Tibu- ron, California. Respondent East Belden Corporation, Respondent's post-hearing motion that the record be reopened for the limited purpose of admitting Inol evidence the escrow instructions and Gen- eral ( Counsel's opposlllon have been considered Respondenl's motion is granted and the ercro, Instructions are recel.cd into esidence. Iikewise. G(eneral ('ounsel's opposirtiin insofar as it requests that the escrow closing statement he receied into ev.idence is granted 777 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which is incorporated in the State of California, concedes that the Windjammer's volume of business meets the Board's applicable jurisdictional standard and that in oper- ating the Windjammer Respondent is an employer engaged in commerce within the meaning of Section 2(5) and (6) of the Act. The labor organization involved in this case, Bartenders and Culinary Workers Union, Local 126, Hotel and Res- taurant Employees and Bartenders International Union, AFL CIO, herein called the Union, is admittedly a labor organization within the meaning of Section 2(5) of the Act. II. THE ULTIMATE QUESTIONS PRESENTED The essential questions presented for decision in this proceeding are as follows. (I) Whether Respondent's refusal to recognize and bar- gain with the Union as the collective-bargaining represen- tative of the Windjammer's employees and its changes in the employees' terms and conditions of employment with- out consulting or bargaining with the Union is a violation of Section 8(aXS5) and (1) of the Act? (2) Whether in discharging all of the Windjammer's em- ployees Respondent was motivated by a desire to avoid recognizing the Union as the employees' collective-bar- gaining representative, thus violating Section 8(a)(3) and (1) of the Act? (3) Whether several statements and questions attributed to Respondent's owners were voiced, and, if so, whether they constitute the type of conduct which reasonably tend- ed to interfere with, restrain, or coerce the Windjammer's employees from supporting the Union, thus violating Sec- tion 8(aXI) of the Act? 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts: A Chronology I. The events which took place before and during escrow The Windjammer, a restaurant and bar, was purchased in 1974 by Number Five Main Street, a California corpora- tion, whose principal owner is Fred Zelinsky, and who, for the sake of convenience, is hereafter called Zelinsky. Re- spondent is equally owned by Gabriel and Halina Ferroni and Jason and Ray Kuhn, all of whom are officers of the corporation; Gabriel Ferroni, president; Jason Kuhn, vice president; Ray Kuhn, treasurer; and Halina Ferroni, secre- tary. Mr. and Mrs. Ferroni and Mr. and Mrs. Kuhn first dis- cussed buying the Windjammer with Zelinsky on July 23, 1977,2 at which time Zelinsky indicated that he would be amenable to selling the Windjammer. On August 8, Mr. and Mrs. Ferroni and Mr. and Mrs. Kuhn, on behalf of Respondent, and Zelinsky entered into an "Agreement For Sale of Restaurant Assets," herein called the sales agree- ment. The pertinent provisions of the sales agreement are as follows. Zelinsky agreed to sell the Windjammer's stock- 2 All dates herein, unless otherwise specified. refer to 1977. in-trade up to $25,000 3 (anything over $25,000 was at the option of Respondent), furniture and fixtures, trade name and good will, leasehold interest, and alcoholic beverage license. The sales price was $361,000, of which $100,000 was to be paid in cash and the balance in the form of a promissory note. The sales agreement obligated the parties to enter into an "Escrow" to carry out the terms of the sales agreement and the "Escrow Instructions" were incor- porated into the sales agreement. The sales agreement fur- ther provided that the closing of escrow and the transfer of permanent possession of the Windjammer was conditioned upon several events taking place, including the approval by the State of California Department of Alcoholic Beverage Control of the transfer of the Windjammer's liquor license from Zelinsky to Respondent. Other conditions precedent to the closing of escrow included delivery of the property without encumbrances, execution of a leasehold between buyer and landlord,4 and no occurrence of any event caus- ing damage or destruction to the property during escrow. Zelinsky also agreed to immediately surrender his liquor license to the Department of Alcoholic Beverage Control and Respondent agreed to immediately obtain a temporary liquor license and all other required business licenses and "do all things necessary" to allow Respondent to "legally operate its business at the premises [emphasis supplied]" as soon as the temporary retail liquor permit was obtained. Continuing, the sales agreement states: 7. Temporary Permit (c). On the day the temporary retail permit become effective and [Respondent] has obtained all licenses necessary to legally operate the business at the prem- ises, [Zelinsky] and [Respondent], . . . shall conduct a physical inventory of the stock-in-trade as of that day. [Respondent], on that day, shall assume full manage- ment and control of the business and, as of 8 a.m., on the following day shall commence operation of the business without any interruption and continue unin- terrupted businesslike operation until (i) the sales es- crow has closed, (ii) the temporary permit and any extensions have expired; or (iii) the application for per- manent license has been denied and [Respondent] has exhausted any diligently prosecuted administrative remedies, whichever occurs first. [Emphasis supplied.] (d). For the period of possession of the business under the temporary permit [Respondent] shall rent from [Zelinsky], the premises, including real property, all fixtures, equipment and other assets agreed to be transfered on the close of the sale escrow. The total rent shall be $100 per day, or 7% of the daily gross income of the business .... (e). If the Escrow fails to close for any reason: (I) [Respondent] shall immediately relinquish possession 'Respondent agreed that while in possession of the premises dunng es- crow it would purchase no more stock-in-trade than was reasonably neces- sary to maintain the inventory at the same level that existed at the time Respondent took possession. Zelinsky leased the Windjammer, so conterlporaneously with the execu- tion of the sales agreement. Zelinsky entered into a lease agreement with Respondent whereby Zelinsky. with the pcrmission of the landlord, assigned all of his right, title and interest in the lease to Respondent, which agreed to assume and perform all of the terms of the lease. 778 EAST BELDEN CORPORATION of the premises to [Zelinsky] in the same condition as when IRespondent] took possession, reasonable wear and tear excepted. Simultaneously with the signing of the sales agreement on August 8, the parties executed "Escrow Instruction" whereby they designated an "Escrow Holder" who was given detailed instructions concerning the implementation of the terms of the sales agreement. The pertinent instruc- tions, for the most part, were already set forth in the sales agreement. Not mentioned in the sales agreement, how- ever, is the instruction that all personal property taxes. rents, and insurance premiums are to be prorated and charged to Zelinsky "through [the] date of consummation of escrow." 5 Also, consistent with the terms of the sales agreement, the escrow holder was instructed to receive and hold Respondent's consideration until approval of the al- coholic beverage license transfer and the occurrence of all of the other conditions, at which time she was instructed to close the escrow and disburse the proceeds to Zelinsky. If the Respondent was not able to obtain the license transfer and had exhausted all administrative remedies, excrow would be canceled with all monies returned to Respondent and all documents returned to the appropriate parties. On August 7, the day before the parties signed the sales agreement, Zelinsky held a party at the Windjammer for the purpose of introducing the owners of Respondent to the public. During the party Zelinsky. in the presence of the Mayor of Tirubon and Mr. and Mrs. Ferroni, thanked cocktail waitress Kalisa Fallon for her past services and stated that it was his last night and that the next day Mr. and Mrs. Ferroni would be "taking over" and that "he (Zelinskyl no longer would have an interest in the restau- rant." Zelinsky also gave Fallon mimeographed copies of a letter signed by himself and his wife for distribution to the employees. The letter, which Fallon distributed to the em- ployees, in pertinent part stated: This is to announce to you, that the operation of the lovely Windjammer Restaurant has been sold to the East Belden Corporation owned by Mr. and Mrs. Ga- briel Ferroni and Mr. and Mrs. Jay Kuhn. By the time you receive this letter, they will be the new operators of the restaurant for the next 27 years .... On August 8, Respondent received a temporary license to serve alcoholic beverages under its name at the Wind- jammer and, as of that date, had also obtained all of the other business licenses essential to operating the Windjam- mer in its name. So on August 8, pursuant to the terms of the sales agreement, a physical inventory of the stock-in- trade was conducted and the next morning, August 9, Re- spondent took control of the Windjammer and com- menced to operate the business. Also on August 9. Respon- dent's owners introduced themselves to the Windjammer's employees at a meeting held in the restaurant. The) intro- duced themselves as "the new owners" who would person- ally be operating the business. 6 The employees were in- The record indicates that contrary to this portion of the escrow Instruc- tions, certain personal property taxes and the premium for liquor liahlls insurance were not charged to Zelinsk, "through Ihe date of consummation of escro,w" rather the, were charged to Zehinsks. onls until August 8 formed that Gabriel Ferroni would manage the bar and restaurant, Halina Ferroni would maintain the books, Ray Kuhn would work with the chef in managing the kitchen, and Jason Kuhn would take care of public relations. The employees were also told that during escrow there would be no changes in personnel, nor any changes in the em- ployees' wages or work schedules, that everything would remain the same as previously, but that Respondent was contemplating a lot of changes which would not be imple- mented until the close of escrow. On the subject of the Union, the employees were advised that Respondent had not reached any decision, but that when escrow closed it would allow the employees to decide whether the Wind- jammer would stay union or be nonunion. Finally. Jason Kuhn referred to the employees' medical insurance cover- age 7 and asked how they would feel about a plan different from the Union's, explaining to them that he was in the insurance business and that at a latei date Kuhn would possibly be able to offer them a better plan. During escrow. August 8 to October 3, Zelinsky exer- cised absolutely no control over the Windjammer's busi- ness operations. Respondent's President Ferroni. in effect admitted that after Respondent, on August 9 commenced to operate the Windjammer that Zelinsky's only connec- tion with the business was the suggestions he offered. Ze- linsky credibly testified that from August 9, the date Re- spondent took possession of the Windjammer. he felt that he was no longer the owner of the Windjammer and that while he thereafter made suggestions to Respondent's own- ers, which he continued to do even after escrow closed, that they were merely suggestions, not commands. Also, Zelin- sky credibly testified that during escrow he stayed out of the affairs of management and "personally made it well known to everyone that [he] would not interfere between [Respondent's owners] and the operation of the restau- rant." In this regard it is undisputed that during escrow the business of the Windjammer was managed by Respon- dent's owners. Gabriel Ferroni managed the restaurant and bar.8 Ray Kuhn. with the chef, managed the kitchen. Hali- na Ferroni took charge of the books and records. Jason Kuhn took care of the public relations and served as a host on occasions. It is also clear that during escrow Respon- '1 he description of the August 9 meeting is based upon a composite of the lestimons girven bh emplo)ees Fallon. Reynolds. Leibowitz. Labrie. Healer. and Resplndcnt's President Gabriel Ferroni. Their testimony. other than FI:llhn's testimons that Jason Kuhn asked the employees "how ltheyl felt about the L'nmon." is not inconsistent, Ferroni denied that Kuhn asked such a questrion and none of the other witnesses corroborated Fallon in this respect. Accordingl. I have rejected this part of her testimony. the emplovees -ere receiting health and welfare benefits including medical insurance benefits under the terms of the Union's contract with Zelinsks. On August 8X. Respondent discharged Hans Behringer. the person who had managed the Windjammer for Ze:insky Gabriel Ferronl testified that Zehnks. in the presence of Respondent's owners, instructed Ferroni to dischargc Behringer and. in discharging Behringer. Ferroni was only car- rling out Zelinsk,'s order None of Respondent's other owners corrobo- raued Ferroni Zelinsks. a disinterested witness. convincingly testified he did not tell Ferroni to discharge Behringer: rather. he testified that he had ad- vised Respondent's owners that they could do .,hatever they wanted about Behringer's emploNment In fact. Zelinskv's written correspondence toi Beh- ringer Indicates that ZelinskN sas heopefi! that during escrow Respondent would retain Behringer in its emplo, hilt Zelinsks realized this was Respon- denl't decision. not hi, 779 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's owners were managing the Windjammer on behalf of Respondent, not Zelinsky. Thus, during escrow, all of the business licenses, insurance policies, and books of ac- count and other business records essential to the operation of the Windjammer were in Respondent's name. Respon- dent paid all of the Windjammer's operating expenses, in- cluding fuel, water, utility charges, sales taxes, use taxes, food and beverage expenses, employees' wages, °0 and pay- roll taxes. Respondent's owners were paid a salary by Re- spondent, not Zelinsky, for managing the Windjammer during escrow and like any independent business entity Respondent, during escrow, could expect to make a new profit if its income from the Windjammer's business ex- ceeded expenses. When Respondent commenced to operate the Windjam- mer on August 9, and for the remainder of the escrow period, it retained the entire complement of employees that previously were employed by Zelinsky. These employees worked under virtually the same terms and conditions of employment that existed when Zelinsky operated the Windjammer. The only changes in the employees' terms and conditions of employment instituted dunng escrow by Respondent were as follows: (I) In the latter part of Au- gust the bartenders' 20-minute break period was eliminated and the bartenders since then have been required to work their shifts continuously without any break." (2) In the middle of August, the practice of paying overtime pay to employees for working over 8 hours in any one day was discontinued. (3) During the week of either August 22 or August 29, the pay of one employee, Kalisa Fallon, was reduced.i3 (4) Immediately upon taking over the operation of the Windjammer, Respondent discontinued the employ- ees' pension, health and welfare benefits by discontinuing making payments on their behalf into the pension, health and welfare funds established by the Union's collective- bargaining agreement with Zelinsky. Otherwise, the em- ployees during escrow continued working at their same jobs, with the same work schedules and received the same benefits as previously. They continued to work in a restau- rant and bar which did business under the name of the Windjammer and which served the same kind of beverages and foods to the general public as it had done in the past under Zelinsky. The only significant change in the Windjammer's business operation which came about be- cause of Respondent's takeover during escrow was that the Windjammer's manager, Hans Behringer, was terminated by Respondent and Respondent's owners personally took over the day-to-day management of the business. Respondent also kept all of the books of account and other business records of the Windjammer. 10 In addition to paying the employees' wages Respondent also reim- bursed the employees for vacation pay which had accrued during escrow 11 The bartenders are allowed to compensate for their loss of a break period by starting work 20 minutes later or leaving 20 minutes earlier with- out suffering any loss of pay. i2 This overtime payment is required by law. so when Respondent was notified that it was violating the law it reverted to the past practice. 13 On August 8, President Ferroni informed Fallon that Respondent did not intend to change anything and that her job duties would not change Later that week, however. Ferroni indicated to Fallon that Respondent could not continue paying her the amount of money she was receiving and intended to take away some of her duties and reduce her pay Thereafter, during the latter part of August. Fallon's pay was reduced. 2. The Union requests Respondent to sign a collective-bargaining agreement In January 1976, Zelinsky entered into a collective-bar- gaining agreement with the Union recognizing it as the bargaining representative of the Windjammer's employees. Zelinsky agreed to accept, adopt, and observe all of the terms contained in the Union's collective-bargaining agree- ment with The Marin Restaurant and Tavern Owners As- sociation, Inc., and independent operators agreement and any changes or amendments made during the life of said agreement, provided Zelinsky was given 30 days to accept or reject said amendments. 4 The association agreement, which Zelinsky had agreed to abide by, was effective from July 1, 1974, until June 30, 1978. In entering into his con- tract with the Union, Zelinsky agreed that the agreement would be binding upon any successor and that the agree- ment would not be affected by any sale or transfer of the Windjammer. The record establishes that on August 8, when it signed the sales agreement, Respondent had no knowledge of Zelinsky's collective-bargaining agreement with the Union but, as indicated by its comments to the employees at the meeting of August 9, knew that the Windjammer's employees were represented by the Union. Respondent's president, Gabriel Ferroni, testified that soon after Respondent commenced to operate the Wind- jammer, he learned there was a collective-bargaining agree- ment between Zelinsky and the Union covering the Wind- jammer inasmuch as Respondent received through the mail the forms sent by the Union to the Windjammer asking Zelinsky for his monthly pension, health and welfare con- tribution on behalf of the employees. In addition, during the first part of August, it is undisputed that union business agent Nick Georgedes spoke to Mr. and Mrs. Ferroni about the Union and its contract covering the Windjam- mer. Georgedes credibly testified that he introduced him- self to Mr. and Mrs. Ferroni and advised them that the Union was taking the position that the Windjammer was still under contract with the Union, but that the Union would like to sign another contract with Respondent so that it would have its own agreement with the Union. Mr. and Mrs. Ferroni, according to Georgedes, replied that they wanted to think the matter over and could not do anything without consulting the other owners." Thereafter, during August and September, Georgedes visited the Windjammer on several occasions to collect dues from the employees and was observed doing this by Gabriel Ferro- ni. The final contact between a representative of the Union and an owner of Respondent took place early in Decem- ber, after the Union had commenced picketing the Wind- jammer, at which time Georgedes informed Gabriel Ferro- ni that the only way the Union would remove its pickets 14 During the term of the association agreement. several changes or amendments were made pursuant to the agreement's reopening clause and were apparently accepted by Zelinsky 1 I reject Gabriel Ferroni's testimony that Georgedes "asked me if we were going to sign a contract, and at that imne I said I really did not know. I did not know a contract existed," Georgedes impressed me as Ihe more credible witness. 780 EAST BELDEN CORPORATION was for Respondent to sign a contract with the Union and offered to delay the contract's effective date for 3 months as an incentive for Ferroni to sign. Ferroni declined the offer. 3. Respondent's reaction to the Union's demand that it sign a collective-bargaining agreement Upon learning that the Windjammer's employees had been covered by the terms of a collective-bargaining agree- ment when Zelinsky had operated the Windjammer and that the Union wanted Respondent to sign such an agree- ment, Respondent's owners spoke to several of the employ- ees about the Union and union representation. During the last week in August, Respondent's president, Gabriel Ferroni, asked bartender Frank Michell how he felt about the Union. Michell, who had been employed at the Windjammer for about 9 years and had performed vir- tually every job there, indicated he felt the Union was fine. Ferroni told him that Respondent was thinking about dropping the Union, asked whether Michell would remain if Respondent dropped the Union, and promised that if Michell stayed without the Union, Respondent would grant him a small monthly bonus and better benefits. Fer- roni also asked Michell why, as of late, he seemed so un- happy. Michell answered that it was apparent to him that Respondent intended to get rid of a lot of the employees. Ferroni acknowledged that this was correct. Ferroni stated Respondent wanted to "drop the Union" and to do this "they have to [get] rid of almost everyone," but had to wait until escrow closed to do this and would like Michell to stay in its employ. Michell told 16 Ferroni that he would have to consider Respondent's offer. In the latter part of September, in answering a question of waiter Lee Duran, the president of Respondent, Gabriel Ferroni, told Duran that the reason Respondent was insti- tuting its own health insurance program was "because he was getting rid of the Union." Ferroni also stated to Duran that Respondent intended to get rid of 50 percent of the Windjammer's employees explaining, "it's a law that you have to get rid of 50%( of the employees when you drop the Union." 7 In the middle of September, President Ferroni spoke to waitress Heather Healey about the Union. After asking Healey to keep their conversation a secret, Ferroni asked whether she would work at the Windjammer if it were non- union and assured her that Respondent was a good em- ployer that would take care of its employees. Ferroni also explained that there was a law in the State of California that when a new operator took over a restaurant it had to discharge 50 percent of the employees, that Respondent i6 The descnption of Ferroni's conversalion with Michell is haed upon Michell's testimony. i reject Ferroni's denial that this conversation took place. Michell impressed me as the more credible witness In crediting Michell I carefully considered that Michell, although not alleged as a discri- minatee, was not a completely disinterested witness since he is an intimate friend of Kalisa Fallon, an alleged discnrmnatee. 1 The descnption of Duran's conversation with Ferronli is hbsed upon Duran's testimony. I reject Ferronl's testnmini Ihat he never said ;insthing to Duran about a "SOM requirement" in conrlectio 'it ih Ihe . nlon. Dur.n impressed me as the more credibhle tineess did not like to do this, but it had no choice, and assured Healey that she would he one of the employees retained. Healey stated it was not a fair law, that she was willing to cooperate and give her best work effort to Respondent, but that she was not willing to state whether she would work union or nonunion as she felt it was up to all of the em- ployees to vote upon this question. Later in September Healey asked whether Ferroni was sure about the law which stated he had to discharge 50 percent of the employ- ees, explaining to Ferroni that she thought he was being misled as she had checked and there was no such law. Ferroni ignored her question and stated, in substance, that Respondent was a good employer to work for and that other than the fact that Respondent might not be Union, that the employees' working conditions would remain the same and be good conditions and that Healey would have nothing to worry about working for Respondent.' In the middle of September, Halina Ferroni, a part own- er and corporate secretary of Respondent, asked Healey how she felt about the Union and whether she would work for the Respondent if it was nonunion. Ferroni told Healey that the Union was composed of "trouble makers" who would cause nothing but trouble for Respondent and also described the Union as being connected with the "mob" and stated Respondent did not want any interference from the Union. Healey answered that Respondent should allow the employees to vote whether or not they wanted to work union or nonunion. '9 In the latter part of September, President Ferroni spoke to bartender David Reynolds and solicited his opinion about certain changes he had in mind for the bar. Ferroni also asked Reynolds how he felt about the Union. Reyn- olds stated that he thought the Union was fine and liked its benefits. Ferroni asked if Reynolds would consider contin- uing to work at the Windjammer if it went nonunion. Reynolds stated he would have to consider the question and would make his decision when and if this occurred. 20 During the first part of September, waiter Mark Mason was asked by President Ferroni how he felt about the Union. Mason stated he thought the Union was a good idea for employees. Two weeks later Ferroni again asked the same question. Mason repeated that he felt it was a good idea for employees but that he wished it had better medical benefits. 2 In September. while waiter Michael Labrie was serving dinner to Respondent's owners, Jason Kuhn, Respondent's tI he descriptlon of Ileale''s conversations writh Ferron are based upon ltealees' tesimony I reject I erroni's general denial of ever having dis- cussed the t nion ith Healev and hi, further testimonyr Ihat he never said anithine to her aboul 5)0 percent In terms of getting rid of the t:nion. and Ih;i lieales never asked him iIt check about such a 50 percent requirement Ilerles Impres-ed rile i.i the mlire credible wilness. I l ie description of fileale,' ,,,vsn.crsaiion Ath Hahlina f erronl is hased upon Iletleslc's letimrnon I rejeclt Ferroni's general denial of ever speaking with Ileale about the L'nion ind her testimony that she never had a con- vers.llon in vhich he told Ileale. the t nlon as a bunch iof "troublemak er" o.r i;is "mob connected" tHeale impressed me as the more credible -i Baed upon Reninold's credible and undenied tetimnln). 1 hie desiprltln of Mas\Ilsn' concvrsations t uth [:erroni are based upon M.ison's testimony I errni generalls deied eer talking about the L ion wiih Mason ; nd specificalls denied asking hoAw Masion felt about the l niton a.,laion inipre-sed me as the minre credible witness in this Irstance DECISIONS OF NATIONAL LABOR RELATIONS BOARD vice-president, asked how he liked working at the Wind- jammer. Labrie indicated he liked working there very much and stated he had never worked previously in a union res- taurant and enjoyed the benefits and pay. Either Jason Kuhn or Ray Kuhn, the Respondent's treasurer, then asked whether Labrie would be willing to work in a non- union restaurant. Labrie answered yes but then qualified his answer stating it would depend upon the benefits and pay.22 Early in August, while questioning waitress Healey about the restaurant and asking for suggestions to improve the restaurant, Respondent's owners Jason Kuhn and Ga- briel Ferroni asked what Healey though about the Union. Healey stated her only criticism of the Union was that its health and welfare plan was not adequate.2? Thereafter, all four of Respondent's owners at different times separately approached Healey while she was working and asked if she would work at the Windjammer if it were nonunion. Hea- ley answered that she was not a representative of the Union and would do whatever a majority of the employees favored.24 4. The meeting of September 30 a. The admissibility of General Counsel's evidence On Friday, September 30, Respondent's owners held a meeting in the restaurant's bar with the Windjammer's em- ployees. Kalisa Fallon, one of the employees present at the meeting, sat with a tape recorder on her lap and recorded the entire meeting without the knowledge of Respondent's owners. Fallon, thereafter, prepared a transcript of the re- cording. General Counsel, relying upon the tape recording and transcript, both of which I admitted into evidence over Respondent's objection, did not call a single witness about what took place at the meeting. There is no evidence that the tape recording has been altered. Nor did Respondent adduce sufficient evidence to demonstrate that the recording was not an accurate repre- sentation of what was said at the meeting or that the tran- script attributes statements to the wrong persons. During the hearing, in the presence of myself and all parties, the recording was played twice. Two employees, Fallon and Healey, listened to the recording and as they listened, iden- tified the voices of the persons talking so as to make sure that the transcript accurately identified the persons who spoke. 25 Based upon my having listened to the recording, and Fallon's and Healey's testimony concerning the identity of the speakers, Respondent's failure to refute their testimony "Based upon Labrie's undenied and credible iestlnrn) 21 Based upon Healey's testimony) Jason Kuhn did not icstif. I erronl denied ever talking with tieale) ;abul the I rln,.. itealey Impresed me as the more credible witness 24 Based upon Healei's testimony. Neither Jason Kuhn nor Rass Kuhn denied this testimony. Halina Ferroni and (,abriel I erronl teqliied thes never spoke with tHealey about the nimon. elea lei mpressed me as the more credible witness. 25 Fallon and Healey were called as witnesses by the ,(jeeral (iounlel Respondent failed to call one witness to challenge the accurac? of Ihe Irail- script. or to produce one witness to challenge the accuracy of the tape recording, I am persuaded that the recording is an accurate representation of what was said at the September 30 meeting and that the transcript accurately reflects what was recorded and correctly reflects the names of the per- sons who spoke at the meeting and what they stated. 2 6 It is for these reasons that I reject Respondent's contention that the tape recording and the transcript thereof are not admis- sible because "there are authenticity problems with tape and transcriptions." Respondent also urges I erred in receiving into evidence the recording of what was stated at the September 30 meet- ing because the recording was obtained in violation of the laws of the State of California. The California law in ques- tion, §632 of the California Penal Code, provides, in perti- nent part, that to tape record "intentionally and without the consent of all parties to a confidential communication" constitutes a crime and the evidence is prohibited from being introduced in any judicial or administrative proceed- ing. "Confidential Communication" is defined as including "any communication carried on in such circumstances as may reasonably indicate that any party to such desires it to be confined to such parties, but excludes a communication made in public gathering . . . or in any other circumstanc- es in which the parties to the communication may reason- ably expect that the communication may be overheard or recorded." Respondent argues that in view of this statute I cannot base any findings and conclusions upon the tape recording evidence. I disagree. Section 10(b) of the Na- tional Labor Relations Act, as amended, obligates the Board to look toward Federal law to determine the admis- sibility of evidence, although the Board is not bound by the strict rules of evidence applicable in Federal courts. Under the Federal Rules of Evidence, evidence obtained by means of a tape recording which is not obtained in viola- tion of the Constitution or Federal law is admissible in Federal court, even though obtained in violation of state law. See cases cited in Local 90, Operative Plasterers and Cement Masons International Association (Southern Illinois Builders Association). 236 NLRB 329 (1978). In the instant case, there is no contention nor does the evidence reveal that Fallon recorded the September 30 meeting in violation of the Constitution or Federal law. It is for these reasons that I reject Respondent's contention that the California Penal Code precludes the admission into evidence of the recording. 27 See Local 90, Operative Plasterers, supra, where the Board considered a state statute very similar to the California statute and refused to exclude a tape recording made in violation of that statute. " In tihoe fes Inslances shere Iher, a,, a conflict between I allon and ieall, in rdentifying those ,s ho spoke. I have disregarded Ihat section of the trancrlpl. Also, in listening to the recording. whenever I found it diffi- cull to hear what was being stated. due to the ioverlap of several voices speaking at once. I have not. is I indicated on the record. relied upon those si.ctions of the transcript. In slte ,t orf i conclusion that Federal and not state law furnishes the standard governing the Idnilssibiliht o the tape recording into evidence, I hase not considered whether. in facti [allon's conduct in recording the Scpteiliher 30 meeting held in Respondent's bar ran afouil of §612 of the ( alliforll;l Penal ( ode 782 EAST BELDEN CORPORATION b. The meeting Ray Kuhn, the treasurer and a part owner of Respon- dent, acted as Respondent's spokesperson at the September 30 meeting. Kuhn informed the employees that escrow was closing Monday, October 3, at which time "Zelinsky [would] no longer have any interest in the business" and advised the employees that Respondent's owners "can now officially go ahead and make our own decisions, changes whatever we want to do." Continuing, Kuhn stated that since Zelinsky's "interests" end Sunday, October 2, that on Monday, October 3, when Respondent's owners "take over" the employees would receive their final paychecks and any accrued vacation pay through Sunday and that all employees who desired to continue to work at the Wind- jammer should file employment applications with Respon- dent no later than 5 p.m., Saturday, October I, and that in selecting its new staff Respondent would review the appli- cations filed by the current employees as well as the appli- cations submitted by other applicants. Also, Kuhn stated that the Windjammer would be closed Monday, October 3, during the day and would reopen for dinner, and that the employees should either phone or visit the restaurant on October 3 between 9 a.m. and 11 a.m. to determine wheth- er or not their applications had been accepted. Employee Fallon asked whether the employees should consider themselves as having been laid off. Ray replied, "it's not laid off. I mean its just that we're officially starting on Monday and we have to start from scratch as if we were a brand-new place. And that's the reason for the applica- tions. So its all of Zelinsky's interests through Sunday and then ours officially start on Monday." Fallon asked if Re- spondent intended to hire all of the current employees back or if Respondent's owners could give the employees some idea as to who would or would not be reemployed. Ray answered that it was impossible for her to answer Fallon's question inasmuch as the decision to employ the employees who submitted applications would be a joint one arrived at only after all four owners had reviewed the applications and discussed the matter among themselves. Also, Fallon asked Kuhn where the employees stood with Respondent if the Union started "some kind of trouble" by taking the position that it had a contract with Respondent. In response, both Kuhn and President Ferroni stated, "well if you wanna work here you go through the picket line, if there is one." Finally, in connection with Respondent's in- tent to hire the current employees, Fallon pointed out that there had been talk that Respondent was planning on reemploying only 50 percent of the employees and asked if this was true, explaining that employee Lee Duran had been told this by President Ferroni.2 8 Ferroni said that this was not true. On the subject of working conditions, Kuhn told the em- ployees that Respondent did not intend to reduce their wages but intended to pay employees by the hour rather than by the shift and intended to introduce a new health 21 As I have found supra. President Ferroni had told Duran late in Sep- tember "it's a law that sou have to get rid of 'O, of the emnplosee, when you drop the Union." insurance plan which would cost $5 a month for those who wanted it. There was also extensive discussion about the Union. Employee Rico asked if Respondent was dropping the Union. Kuhn replied that Respondent did not have a con- tract with the Union and "don't have any intention of sign- ing a contract," explaining to the employees that "at this point . . . what we really need is flexibility to operate the place without tieing ourselves in any contracts, that's what we really need." Fallon told Kuhn that the Union had stat- ed it intended to sue the Windjammer under the successor- ship clause in the collective-bargaining agreement and that the employees were caught in the middle of a fight between Respondent and the Union. Kuhn answered, "all I can tell you is that we don't intend to sign a contract, o.k., so what- ever happens after that is up to you all, up to the Union." Later, employee Healey asked, in substance, what it was about the Union that Respondent found objectionable. Kuhn answered, "basically we just don't want to be tied down to a contract and have some outside agency . . . dictate to us how to operate our business, we need the flexibility, especially now starting out, to run the business as best we see it." Continuing, Kuhn explained that she understood that the Union's contract dictated all working conditions and "everything else" and Respondent "just don't [want to] be tied to it" and emphasized to the em- ployees that it was "super-important" for Respondent to have flexibility and that any time you have "a contract of an) kind" an employer loses this flexibility. When, later during the meeting, Fallon expressed the view that once the Union was dropped Respondent would be in a position to treat the employees arbitrarily Kuhn replied. "we don't in- tend to be unfair employers, on the other hand we don't want to sign a contract." 5. The events which took place after escrow closed The Windjammer was open for business as usual on Sat- urdas, October I, and Sunday, October 2. It employed 39 persons. °t By the October 1 deadline imposed by Respon- dent for the filing of employment applications, 35 of the 39 had filed applications. On October 3, Respondent closed the Windjammer for the entire day because it had dis- charged all of the employees and was in the process of hiring a new staff. Likewise, October 3 was the day on which escrow closed resulting in the transfer of the Wind- jammer from Zelinsky to Respondent. S: A chart which compared the health insurance plan whlch Respondent Intended to institute with the plan which the enmpliecs had previousld enjosed under the t non's contracl .a, ditrlhulted to the emphl,ees. Alo, a reprelniatile for the insurinte ci.mpains whjilh was underwrilling the neo' plan 'pokre ii the rcmplosee anid .Insered qustniios bhout the plant Ihe ftguite 19 exludc, Rerponde;1'i iiwners who uere oen hepa rrol hill Inrludes 1other all.tuit r, uper,.isors In this regard. in agreement with Rcponidenl. I ftnd that the record establishes that at the time of their dis- chitc', tanager irniand "Ied" legri. Sr night fl...r manager lrmnd ed elar lien.l and chef (;nearo ASnie/cu. were tsuperxl,ors within the meaning Sec 2 I I iOf the Act I reahie thati ince Respondent's owners. particulat. (i;hrrlel t erron .and Ris h suhn. vcre pcrsonill. particlpatilg tn the da-ti da iraln.age ment of the W'ndlatimtier and the superxlslon io the emplhxet , that Ihere wi', a high proplfrtion if supers l s.r, It enmpioees Ne'erlhele, I ain persua.ded that the rCl0 Id etahliheC, that in Octo(her 2. llegr3a Sr Allen Itll rd tIree C.u crc .. lIt ti lperx i.p'Ir, 783 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent reopened the Windjammer for business Oc- tober 4 with 33 persons in its employ 3' and certain terms and conditions of the employees' employment changed. Previously, employees were paid by the shift, now they were paid by the hour. New vacation pay and sick leave pay policies were instituted as well as new health insurance and death benefit programs. No evidence was introduced, however, that from October 3 until the date of the hearing in this case, June 8, 1978, that Respondent made any sig- nificant changes in the nature of the Windjammer's busi- ness. Quite the opposite, the record reveals that since Octo- ber 3 Respondent had made no physical changes in the Windjammer nor has it changed the Windjammer's busi- ness format. The Windjammer still serves the same kind of foods and beverages, maintains the same type of menu, and its employees exercise the same skills as under Zelin- sky. As indicated supra, 35 of the 39 persons discharged on October 2 submitted applications for reemployment. On October 4, when the Windjammer reopened, 18 of them were not reemployed, but for the most part had been re- placed by new hires. General Counsel presented evidence concerning the circumstances surrounding the efforts of I dischargees 32 to secure reemployment and Respondent presented similar evidence concerning one.3 This evidence has been set forth and evaluated herein. a. Kalisa Fallon Kalisa Fallon was employed at the Windjammer for ap- proximately 3-1/2 years. She had worked as a hostess, cashier, cocktail waitress, and bartender; at the time she was discharged she was working as a cocktail waitress. On September 30, at the meeting between Respondent's own- ers and the employees, Fallon spoke more frequently than any of the other workers and by the nature of her questions it should have been plain to Respondent's owners that she was a union adherent.34 Later that day, after work, Fallon filled out an employment application and in the upper right hand corner, to emphasize her strong desire to remain at the Windjammer, penciled in, "I wish to stay at the 'Jammer.' " Fallon was not scheduled to report for work on Satur- day, October I, until 5 p.m., at which time she handed her application to President Ferroni. Fallon told Ferroni that she wanted to continue working at the Windjammer but was worried about her chances for employment because she feared that the remarks she had made about the Union at the September 30 meeting might have antagonized the owners of Respondent. She asked whether Ferroni could f The figure 33 which includes statutory supervisors hut excludes Re- spondent's owners is based upon Respondent's payroll records for the pe- riod October 9 to October 16, inasmuch as the records for (October 4 were apparently misplaced and unavailable at the time of the hearing 2 Fallon, HealeN. Rico, Atkin. Labrie. Duran. Mason. Sousa, ILeihowitz. Reynolds. and Townsley. Ilarrs (Cohen. 14 Also in August 1977. when Respondent stopped paslng overtlre to rmployees who worked over 8 hours a day. Fallon complained to Halina Ferroni about the matter. stating it was " 'union violation" is well a1 a violation of state law tell her whether he planned on reemploying her. Ferroni indicated it would not be his decision, but would be ajoint one made by all of the owners. President Ferroni denies that on October 1, as set forth supra, Fallon handed him her employment application. Ferroni testified he was absent from the Windjammer all of that day, thus, Fallon could not have spoken to him or given him her application. He further testified that the first time he observed Fallon's application was the morning of Sunday, October 2 when, with Halina Ferroni, he discov- ered a pile of applications on the reservation desk in the restaurant. As they looked through the applications, ac- cording to President Ferroni, Halina Ferroni discovered Fallon's application and informed her husband that it looked as if Fallon had written "I wish to stay at the 'Jam- mer,'" but that someone had erased it off. President Ferroni did not impress me as a trustworthy witness, whereas Fallon did; accordingly, I have credited her testimony. In addition, Ferroni's testimony that he was absent from the Windjammer all day Saturday, October 2, does not ring true inasmuch as Saturday is the busiest day of the week and was the day the employees were supposed to give Respondent their applications for reemployment. Moreover, at another point in his testimony, President Fer- roni testified that during escrow he normally worked at the Windjammer 7 days a week from 9 a.m. to 11 p.m. In addition, Ferroni had absolutely no recollection where he spent his "day off" and then, inconsistent with his earlier testimony, testified that it was possible he did work Satur- day, October 2, at the Windjammer, but only until the night manager arrived, which the record reveals was be- tween 4 p.m. and 5 p.m. Finally, Halina Ferroni, the wife of President Ferroni, who was present in the hearing room, was not called upon to corroborate her husband's testi- mony concerning the discovery of Fallon's application; thus, I presume her testimony would not have been consis- tent with her husband's and would have been adverse to Respondent. It is for all of these reasons that I reject Ferroni's testimony and credit Fallon's that she gave her application to Ferroni on October I and spoke to him at the same time about employment; and, I further find, that the penciled in notation made by Fallon on the top of her application was there when the application was received by Respondent's owners and was presumably erased by one of the owners. It is undisputed that Fallon worked for the duration of her normal shift on Saturday, October 1. There is a dispute, however, about whether she informed night manager Wil- liam Allen, at the end of the shift, that she was voluntarily terminating her employment. Allen testified that Fallon, on October I, expressed dissatisfaction to him about the man- ner in which Respondent was operating the restaurant and that later in the evening, at approximately 11:30 p.m. or 12 midnight, while at the bar with five or six employees, Fal- lon made the following statement to him: "She said she was leaving, going to have a few drinks, and good bye." Fallon, on the other hand. specifically denies indicating to Allen or any of the employees that she was quitting her job, but testified that when she finished work Allen purchased a drink for her at the bar, that she took a couple of sips and when Allen asked her to remain for awhile and drink with 784 EAST BELDEN CORPORATION him that she declined the invitation and left. Fallon im- pressed me as a more credible witness than Allen; accord- ingly, I have rejected Allen's testimony. In addition, the record establishes that as Fallon left the bar that evening to go home, she called out to the bartender with whom she worked, "I'll see you tomorrow." On Sunday, October 2, Fallon was unable to report for work because she had twisted an ankle. She phoned the Windjammer and told waitress Beverly Souza, who an- swered the phone, that she had twisted her ankle and be- cause of this would not be able to work that evening. Souza promptly gave this message to Jason Kuhn and Garbriel Ferroni. As a result, another waitress was assigned to fill in for Fallon. On Monday, October 3, Fallon went to the Windjammer at 9 a.m. to find out about her employment status. She asked Gabriel Ferroni and Jason Kuhn, who were seated in the restaurant together, whether she was "in or out." Ferroni stated that she had terminated her employment with Respondent by quitting. Fallon denied this explaining that she had not come to work the previous day because she had hurt her ankle and remainded Ferroni that on Sat- urday she had expressly told him of her strong desire to continue working at the Windjammer. Ferroni replied that the night manager would say that she had quit. Fallon reit- erated she had not quit and intended to report for work. Ferroni stated she had already been replaced.35 Based upon the foregoing, I find that the reason given to Fallon by Respondent for its rejection of her employment application, that she had quit her employment, was a pat- ently false reason and was not made in good faith. In concluding that Ferroni did not have a good-faith belief that Fallon had voluntarily terminated her employ- ment, I have considered Allen's and Ferroni's testimony that on the morning of October 2 Allen advised Ferroni, as Allen testified, that Fallon had stated "she was going to quit." Since Fallon made no such statement to Allen, I do not believe he communicated this message to Ferroni. In any event, assuming Allen's and Ferroni's testimony is not contrived and Allen, on October 2, did mistakenly inform Ferroni that Fallon had indicated she was terminating her employment, the record establishes that Ferroni could not have reasonably accepted this message at fact value. On October I Fallon had personally handed Ferroni her em- ployment application and personally informed him of her strong desire to continue working at the Windjammer where she had worked for 3-1/2 years. The next day, rather than indicate to Respondent that she had quit her employ- ment, she informed Respondent's owners that the reason she was not working that day as scheduled was due to an injured ankle. These circumstances, plus Respondent's 35 The descnption of Fallon's meeting with Ferroni and Kuhn is based upon Fallon's testimony. Respondent called President Ferron to testify about this meeting. His testimony was essenfially the same as Fallon's and he admits that the sole reason given Fallon for Respondent's refusal to reemploy her was that she had quit her employment, which Falion denied. In other respects, however. there are certain conflicts between Fallon's and Ferroni's testimony which I have resolved in favor of Fallon. inasmuch as she impressed me as the more credible witness. Also. Respondent's failure to have Kuha tetify indicates his testimony would not have supported Ferroni's version. union animus and its knowledge of Fallon's union sympa- thies, establish that President Ferroni, in accepting Allen's message as proof that Fallon had quit her employment, without even first speaking to Fallon about the matter, was not acting in good faith but was looking for a reason to use to justify not reemploying Fallon on account of her union sympathies. b. Heather Healev Heather Healey was employed as a waitress at the Wind- jammer for about 2 years. In September, as described su- pra, when questioned by Respondent's owners, she refused to commit herself to working without union representation. On October 3. she went to the Windjammer to determine whether her employment application had been accepted. Gabriel Ferroni anil Jason Kuhn told her it had been re- jected. They explained that Respondent's owners had noth- ing against Healey's work performance, but that the reason she was not being reemployed was because Respondent intended to operate with new employees. Ferroni stated that he had some reservations about doing this and that Respondent might be making a mistake by not using the former employees. Kuhn, on the other hand, stated he was positive that Respondent had not made a mistake and, in answer to Healey's question. specifically stated that all of the former employees were not being rehired. When Hea- ley specifically asked about waiters Labrie and Rico she was informed that Labrie would not be reemployed but that no decision had been reached about Rico's employ ment status. The meeting ended with Ferroni and Kuhn agreeing to write a recommendation for Healey to help her find work with another employer.3 President Ferroni testified that Healey's application was rejected "because she did not do her duties as a food wait- ress." namely, she failed to perform the following duties: fill salt and papper shakers, clean mustard and catsup con- tainers, set up and clean up her station, and help the bus boys. Ferroni admitted that in the 8 weeks he supervised Healey's work that he never criticized her for this unsatis- factory state of affairs and did not explain his failure to do so. Ferroni also admitted that in all other respects Healey was a "very good" waitress for whom Respondent offered to write a letter of recommendation. The foregoing circumstances-the palpably false reason given Healey for Respondent's rejection of her application. the inconsistency between the reason given Healey and the one given at the heanng to justify the rejection of her appli- cation, and Respondent's unexplained failure to ever men- tion to Healey her alleged work deficiencies which Respon- dent now claims resulted in the rejection of her 16 The description of the October 3 :necting is based upon ileale?'s testi- monv. Ferronm's version is that he told Healey her application had been rejected because "she would not set up her station. would not fill salt and peppers. would not bus a table if it was necessary. would not clean mustard and mayonnaise jars and would not clean up her station when she went home." and that Heale) simply answered. "thank you very much" and left the premises. Healey impressed me as the mole credible witness. accord- ingly. I have rejected Ferron's testimony. Moreover, Kuhn was not called by Respondent to corroborate Ferronm's ;rsion: thus. I presume his testi- mony would have contradicted Ferroni's and would have been adverse to Respondent 785 DECISIONS OF NATIONAL LABOR RELATIONS BOARD application -persuade me that the reasons Respondent has advanced to justify its rejection of Healey's employment application are not the real ones. c. Arturo Rico Arturo Rico was employed as a waiter at the Windjam- mer for 7 years. On October 3 he went to the Windjammer to determine whether his application had been accepted. He spoke to Gabriel Ferroni, Ray Kuhn. and Jason Kuhn. Rico asked whether he had a job. Either Jason Kuhn or Gabriel Ferroni answered that he had a job but, in the same breath, asked whether he was willing to "get out of" the Union and asked whether he would cross a picket line if one were established by the Union. Rico indicated he would resign from the Union and that by resigning would be able to cross the Union's picket line. Rico was hired as head waiter. The aforesaid description of the October 3 meeting is based upon Rico's testimony. Ferroni's version is that Rico asked whether Respondent was going to have any union problems. Ferroni testified that in response he told Rico Respondent had not signed a contract with the Union and that there was a possibility of a picket line. When Rico asked if he would have to cross it, Ferroni testified that he told him that it was Rico's decision and, in reply to Rico's inquiry, suggested that maybe the Union would give him a withdrawal card. Rico, who at the time of the hearing was employed by Respondent as an assistant manager, im- pressed me as the more credible witness; accordingly, I have rejected Ferroni's testimony. Moreover, neither Mr. nor Mrs. Kuhn was called by Respondent to corroborate Ferroni's testimony: thus, I presume their testimony would have contradicted Ferroni's and been adverse to Respon- dent. Based upon the foregoing I find that on October 3. Re- spondent, by implication, indicated to Rico that the accep- tance of his application for employment was conditioned upon his withdrawal from the Union and, if the Union established a picket line, crossing the picket line.37 d. Harry Cohen One of the employees discharged on October 2 was wait- er Harry Cohen. Cohen filed an employment application but did not go to the Windjammer on October 3; rather, he reported for work later that week on the day he was sched- uled to normally work. At this time President Ferroni in- formed him that, "[Respondent] took over the restaurant this week and [he] anticipateld] some difficulty with the Union because . . . [The Windjammer] is no longer a union house," and asked Cohen, "what [he] would do about a picket line. Would [he] cross one?" Cohen stated he would not cross a picket line. At this point Cohen and Ferroni engaged in this colloquy: 37 In my opinion. Respondent's Interrogation of Rico which took place simultaneously with Respondent's acceptance of Rico's employment appli- cation. under these circumstances. was reasonably calculated to lead him to believe that Respondent's acceptance of him as an employee was condi- tioned upon his withdrawal from the Union and his not honoring a union picket line Ferroni: "Well, then you know where I am at." Cohen: "Yeah, I think I know where you are at." Ferroni.' "You know I want you. I suggest when this blows over I want you to come back and work for me." Cohen. "Gabe, as soon as your problems with the union are resolved, I'll be glad to work for you .... " Ferroni: "Good, let's keep in touch." During the week of October 9, headwaiter Rico phoned Cohen and told him that he did not think there was going to be any picket line as none had materialized and asked Cohen to return to work. Cohen advised Rico to speak to President Ferroni. The same day President Ferroni phoned Cohen and told him to report back to work, explaining he did not think there would be any problems for awhile. Co- hen worked at the Windjammer until November 28, on which date the Union began to picket the Windjammer and picketed for approximately 3 weeks. Cohen, who has been a member of the Union for over 30 years, honored the picket line for its duration and returned to work after the picketing ceased. In its post-hearing brief Respondent, described Ferroni's conversation with Cohen, when Cohen initially reported for work after having submitted his employment applica- tion, in these terms: "Cohen testified that Ferroni and he spoke about the possibility of a picket line and Cohen's conviction not to cross same. Nevertheless, Ferroni offered him a position. The terms of the offer were such that Co- hen could abstain from working in the event of a picket line without affecting his status as a Windjammer employ ee." I disagree. The description of Cohen's conversation with Ferroni on the date Cohen reported for work has been set out above in haec verba. It unambiguously establishes that in answer to Cohen's request to continue working for Respondent, as embodied in his employment application and his actual appearance at the Windjammer to start work, Ferroni responded by asking him whether he would be willing to cross a union picket line. When Cohen an- swered in the negative, Ferroni indicated that because of Cohen's unwillingness to commit himself to crossing a union picket line, Ferroni could not offer him reemploy- ment at that time. Based upon the foregoing, I find that during the week of October 3 Respondent refused to employ Cohen because he refused to assure President Ferroni that if the Union established a picket line that Cohen would not support the Union by honoring the picket line. e. Mark Mason Mark Mason was employed as a waiter at the Windjam- mer since February 1977. In September, as described supra, he informed Gabriel Ferroni that he favored union repre- sentation. Since Mason's regularly scheduled days off were Mon- day and Tuesday, he did not go to the Windjammer until Wednesday, October 5, to determine whether his employ- ment application had been accepted. He spoke to Ray Kuhn. Kuhn told him that during the past 2 days Respon- dent had hired a lot of people and asked Mason how he 786 EAST BELDEN CORPORATION would feel if there were a picket line in front of the Wind- jammer and if he would give up his union affiliation. Ma- son answered that he did not know whether he would be able to cross a picket line and would not be able to answer Kuhn's qucstion until he was faced with a picket line. Kuhn stated she felt Mason was not really behind what Respondent was doing and would not be able to cross a picket line. Kuhn acknowledged that Mason's application was impressive and that he was a good waiter but stated he was not totally committed to what Respondent was doing. explaining to Mason she was not sure if he would be able to cross a picket line. Mason replied, "what can I do? I won't know what I'll do until the thing comes up," and asked whether he could assume he was fired. Kuhn said yes.38 Based upon the foregoing, I find that on October 5 Re- spondent refused to employ Mason because he refused to assure Kuhn that if the Union established a picket line at the Windjammer that Mason would not support the Union by honoring the picket line. Mason testified that on February 20, 1978, he spoke to Garbriel Ferroni at the Windjammer and asked to be rein- stated. Ferroni supposedly asked whether Mason had signed anything with the Board. Mason stated he had talked to "them" but had not signed anything. Ferroni asked who was responsible for going to the Board and asked if it was Kalisa Fallon. Mason stated that he did not know. Ferroni's testimony is in sharp conflict with Mason's. Ferroni testified that late in February 1978, Ma- son came to the Windjammer and asked Ferroni if he had a job for him. Ferroni stated that they were not hiring because business was slow. In response Mason declared that he was Muhammed Ali and threatened to kill Ferroni because he had not given him a job and called Ferroni all kins of names. Thereafter, on about 14 different occa- sions-over the telephone and personally-Mason threat- ened to kill Ferroni who filed a complaint with the local police department. Mason generally denied ever threaten- ing Ferroni's life. I credit Ferroni. In contrast with the other testimony that he presented in this proceeding. Ferroni's testimony that Mason threatened to kill him was given with conviction and sincereity. He impressed me as a more credible witness than Mason; accordingly, I have credited his version of what was stated in his conversations in February 1978 with Mason. f. Tom Atkin Tom Atkin was emloyed at the Windjammer as a cook for over 2 years. He went to the Windjammer on October 3 to find out whether his application had been accepted. He spoke to Ray Kuhn, Jason Kuhn, and Gabriel Ferroni. 3The descrption of Mason's October 5 Interview with Kuhn is based upon Mason's testirnony. Kuhn specifically denies asking Mason if he would give up his union affiliation. She testified she told him that Respon- dent had done quite a bit of hiring and "there might be a possbilllty of a picket line." Upon hearing this. Mason. according to Kuhn. replied thai he would not be interested in working at the Windjammer because a lot of his fnends were with the Union. Mason. when he testified about this .onversl- tion, impressed me as a more credible witness than Kuhn; accordingls. I have credited his testimony Ray Kuhn, the owner who was managing the kitchen, ad- vised Atkin that Respondent intended to operate nonunion and asked whether Atkin would be willing to remain with the Windjammer under those conditions. Atkin answered in the negative, explaining to Respondent's owners that he had been a union member for 8 years and would lose all of his benefits if he worked in a nonunion restaurant. Atkin also stated he desired to pursue his music.39 The description of the October 3 meeting is based upon Atkin's testimony. Gabriel Ferroni's version is that after Respondent had indicated Atkin's application had been accepted that Atkin asked if Respondent intended to go nonunion and when he was told that Respondent had not signed a union contract and there would be a picket line that Atkin said he would rather not accept the job because he had his music and had been in the Union for a long time and would probably be the first employee to picket. Atkin impressed me as the more credible witness. Moreover, nei- ther Ray Kuhn nor Jason Kuhn was called by Respondent to corroborate Ferroni's testimony: thus, I presume their testimony would have contradicted Ferroni's and would have been adverse to Respondent. g. Beverly Souza Beverly Souza was employed as a hostess and cocktail waitress at the Windjammer for 16 months. On October 2. she was working part time at the Windjammer and worked at another restaurant, The Velvet Turtle, on friday or Sat- urday night. On October 3. Souza went to the Windjammer to find out whether she was being reemployed. She met with Ga- briel Ferroni and Jason Kuhn. Ferroni stated that they would like to use Souza, but she only wanted to work part time. Souza asked, "what other options are there? What can you offer me." Ferroni did not answer this question, but reiterated "we'd like to use you but you only want to work part time." Souza answered that this was not true. Ferroni pointed out that she also worked at The Velvet Turtle. Souza told him she only worked there on Friday or Saturday nights and was available the rest of the time and asked if they could offer her anything. Ferroni answered ir: the negative, explaining that the business was not doing so well. Souza asked if there was anything wrong with her work and was informed that she did a good job and they liked her. The meeting ended with the participants discuss- ing the nature of Souza's termination. i.e., whether she had been fired, and she stated she did not appreciate the way she was being treated especially since she had worked that past Sunday, which was her day off, to help Respondent out of a Jam. 4 1" Although Atkin made mention of a desire to pursue his music, it is plain that a signiflcant factor in Atkins indication that he no longer desired to work at the VWindjammer was Kuhn's statement that Respondent Intend- ed t0r operate nonunioll 4 the description of this meeting is based upon Souza's testimony Ferr,- m testified that the meeting lasted only 3() seconds because uhen Souza was offered a full-time joh she told Ferroni and Kuhn "ysou're tring to use me (;o fuck ,ourself" and usaiked out of the room Souza impressed me as the more credible witness: accordingly. I hs'e rejected Ferro,il's testlmon, Moreover. Kuhn uwas not called h, Respondent to corroborate Ferroni: (Cntinudr 7E7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In summation, the record establishes that on October 3 Ferroni and Kuhn ignored Souza's statement that she was not limited to part-time work and also ignored her request that they make her an offer of full-time work. In addition, Respondent failed to offer any convincing evidence which explains why an admittedly satisfactory part-time worker like Souza was not offered a part-time position. Ferroni's conclusionary testimony "we needed somebody full time" was never made more specific nor was his testimony cor- roborated by any of Respondent's other owners who sup. posedly participated in the decision not to employ any of the part-time workers. Also, without corroboration from the other owners, is Ferroni's further testimony that Re- spondent's owners "were trying to find employees who would more or less try to work full time." Ferroni did not explain why Respondent's owners had supposedly decided that the Windjammer should no longer employ part-time employees, as it had done in the past, but only employ full-time employees. The lack of specificity in Ferroni's tes- timony, as well as the lack of corroboration, makes his testimony suspect especially where, as here, the record re- veals that almost immediately after October 3 Respon- dent's owners commenced to employ part-time workers.4 ' Based upon the foregoing. I find that on October 3 Re- spondent refused either to offer Souza full-time or part- time work and that its refusal was not based upon any legitimate business consideration. h. Lee Michael Duran Lee Duran, a high school student, worked at the Wind- jammer as a busboy and waiter for over 2 years. He worked full time during the summer and part time while school was in session. His discharge occurred on October 2 while school was in session; hence, he was working part time. On October 3, Duran phoned the Windjammer to find out whether his application as a waiter had been accepted and was informed by Gabriel Ferroni that his application had been rejected because ."'they wanted full-time employ- ees only." Duran asked if he could work as a busboy. part time. Ferroni stated he would have to discuss this request with the other owners and, an hour later, Jason Kuhn in- formed Duran that Respondent could not employ him as it was only employing full-time busboys. Duran's application, like Souza's, was ostensibly rejected because, as Ferroni told Duran. "Respondent wanted full- time employees only." I say ostensibly, because no reason was given to Duran or any of the other applicants for Re- spondent's new policy of employing only full-time workers. Nor did any one of Respondent's owners explain the basis for this new policy at the hearing. Ferroni's testimony that in determining which applicants to employ Respondent's owners "were trying to find employees who would more or less try to work fulltime" is simply a restatement of what Respondent supposedly did, not an explanation of why it thus. I presume his testimony would have contr.adicted 1Ferroni's and would have been adverse to Respondent, 4t Ferroni was unable to consincingly explain why. despite Respondent's owners' decision to employ onl) workers who could work full time. ;llmirr immediately thereafter it conimenced to nmplo, part-time woorker5s did it. Nor was Ferroni's testimony corroborated by any of Respondent's other owners who supposedly participated in the decision not to employ any part-time workers. Respon- dent's failure to present evidence explaining the basis for its policy not to hire any part-time workers, when viewed in the light of the undisputed fact that almost immediately following October 3 Respondent commenced to hire part timers, makes the failure of Respondent to call at least one of the owners to corroborate Ferroni extremely suspect. Under the circumstances, I presume that the testimony of the other owners would have impeached Ferroni and have been harmful to Respondent. Based upon the foregoing, I find that the reason given Duran for Respondent's rejection of his application was not based upon a legitimate business consideration and was not the real reason for its rejection. i. Michael John Labrie Michael Labrie was employed for over 2 years as a wait- er at the Windjammer. He worked 4 days a week. As de- scribed supra, in September he had informed Respondent's owners that he enjoyed working at the Windjammer be- cause of the benefits that went with union representation. On October 3, he went to the Windjammer and spoke to Gabriel Ferroni, Ray Kuhn, and Jason Kuhn to determine whether his employment application had been accepted. Jason Kuhn stated that Respondent was very happy with Labrie and wanted him to continue working at the Wind- jammer, but Respondent intended to drop the Union be- cause it could not afford the expense. Jason Kuhn asked what the Union had done for Labrie. Labrie indicated that he felt very secure with his job and enjoyed the benefits and pay provided by union representation. Kuhn pointed out that Respondent had offered the employees a very good medical plan and insurance benefits and asked if La- brie would be willing to work with these benefits. Labrie asked what kind of a shift he would be working. Ray Kuhn stated that at first he would have to work 6 to 7 days a week. Labrie asked if he would be able to work 4 days a week as he had been customarily working. Kuhn stated Respondent could not guarantee that he would ever be able to work his present schedule of 4 days a week, but at the very least would have to work 5 days a week. Labrie stated he was not sure he was willing to work under the stated conditions, but would have to think about Respon- dent's offer.42 Later that evening Labrie phoned Jason Kuhn and rejected Respondent's job offer. Labrie testified that the reasons he rejected Respon- dent's job offer were: (I) he wanted to continue working ' I he description of the October 3 meeting is based upon Labrie's testi- mion . G;abriel Ferronl and Ray Kuh, testified. in substance. that Labne. an excellent .,liter vshoU worked only part time. was offered a job as a full-time walter and that he indicated that he did not want to work full time hbut would consider the offer. Ferroni also testified that in response to .ahrie's inquiry. Ferroni told him that he would be working in a nonunion rersaurant. ILabrie impressed me as the mere credible witness; accordingly, I have rejected the testimony of Ray Kuhn and Gabriel Ferroni. Moreover. the person whom ILabrie attributed the remarks about the Union. Jason Kuhn. was not called upon to corroborate f'erroni's testimony: thus. I pre- surme his testimon) would have contradicted Ferroni's and would have been ailderse to Respondent. 788 EAST BELDEN CORPORATION part time; (2) Respondent intended to operate nonunion which meant the loss of the benefits secured through union representation; (3) he disliked the manner in which Re- spondent's owners were operating the Windjammer. In short, the record establishes that Labrie, an excellent waiter who was employed part time at the Windjammer. was offered employment by Respondent only if he accept- ed a full-time position and that this offer was supposedly made pursuant to Respondent's policy of hiring only full- time workers. For the reasons set forth in connection with Duran's and Souza's applications, supra, I am persuaded that Respondent's rejection of Labrie's application for part-time work and its conditioning of his reemployment upon his accepting full-time work was not based upon le- gitimate business considerations. j. David Reynolds David Reynolds was employed at the Windjammer for over 2 years as a bartender. As described supra, in late September Reynolds informed Gabnel Ferroni that he was in favor of representation by the Union. Reynolds worked October 2. During the evening at about midnight, a group of customers drinking at the bar became drunk and disorderly which resulted in their being evicted by Reynolds or leaving because Reynolds refused to continue to serve drinks to one of the group who was intoxicated. On October 3, Reynolds went to the Windjammer to find out whether he was being reemployed. He met with Gabriel Ferroni and Jason Kuhn. Ferroni stated that they had decided to let him go because Respondent had decided to hire a new crew. Feeling that the incident of the previous night might have been responsible for the decision not to employ him, Reynolds asked whether Ferroni had heard about what had taken place and informed Ferroni that he was obliged as a bartender not to serve drunk and disor- derly customers. Ferroni indicated that he had not heard of the incident. Jason Kuhn assured Reynolds that Respon- dent's refusal to reemploy him had nothing to do with his job performance and told him that Respondent's owners thought he was an excellent bartender and would not hesi- tate to recommend him to another employer, offered to write him a recommendation, and su Agested that Respon- dent, in the future, might rehire him. Ferroni testified that Respondent's reasons for refusing to employ Reynolds were as follows: (1) A private detec- tive agency notified Respondent that Reynolds was "giving 4 The description of this meeting is based upon Reynold's testimony. Ferroni testified that Kuhn and Ferroni told Reynolds that he was a good bartender and offered to give him a letter of recommendation. but also told Reynolds that they thought his services were more suited for a service bar where he would not have to wait on customers rather than a bar, like the Windjammer's where there were customers. Reynolds supposedly stated that their assessment of his ability was correct and admitted that the previ- ous night, when there were a lot of customers at the bar. he had not known how to handle the "action." Reynolds impressed me as a more credible witness than Ferroni; accordingly. I have rejected Ferroni's testimony. Moreover, Kuhn was not called by Respondent to corroborate Ferroni's version, thus, I presume his testimony would have impeached Ferroni and would have been adverse to Respondent. drinks away" and was "giving bottles of liquor to other employees to take out". (2) Reynolds "was not a good bar- tender with people at the bar." Regarding Reynolds' conduct of "giving drinks away," Ferroni testifited that this allegation was based upon an Agust 15 investigation report submitted to him by a private detective agency which indicated that on one occasion Reynolds was observed charging a customer the price of a beer for vodka. Ferroni admittedly never spoke to Reyn- olds about this accusation and gave the incredible testi- mony that, although it was expensive for Respondent, for the next 6 weeks Respondent continued to allow Reynolds to give drinks away. Neither Ferroni nor Kuhn, when he spoke to Reynolds on October 3, indicated to Reynolds that this was a reason for Respondent's refusal to reemploy him. Reynolds credibly testified that he never gave unau- thorized free drinks to customers. Based upon the fore- going, I find that Ferroni, on October 3, did not believe Reynolds had given drinks away. Regarding Reynolds' conduct of "giving bottles of liquor to other employees to take out." Ferroni testified that this allegation was based upon the August 15 detective report which stated that Reynolds had been observed on one oc- casion selling three bottles of liquor to the chef at whole- sale prices which cost Respondent money and was a viola- tion of state law. Ferroni admittedly never spoke to Reynolds about this misconduct and it was not mentioned to him as a reason for Respondent's refusal to reemploy him. Ferroni admits that he did not discipline the chef, who was equally as responsible as Reynolds, inasmuch as he learned that it was customary at the Windjammer for the employees to purchase liquor by the bottle at the bar, paying wholesale prices. Based upon the foregoing, I find that Reynolds' conduct of selling liquor by the bottle at wholesale to the chef had absolutely nothing to do with his discharge. Regarding Ferroni's contention that Reynolds was not a good bartender with customers, there is not a single piece of evidence in the record, other than Ferroni's self-serving conclusionary testimony, which supports this contention. Not one of Respondent's other owners was called to cor- roborate Ferroni's testimony, nor did Ferroni or Kuhn on October 3 indicate to Reynolds that this was a reason which influenced Respondent not to reemploy him. More- over, it is undisputed that during his 8 weeks of employ- ment under Ferroni's supervision that Ferroni did not speak to Reynolds about this alleged failing or otherwise criticize his work. The foregoing circumstances establish that Ferroni's contention that Reynolds was not a good bartender with the customers is a fabrication. Based upon the foregoing, I find that the reasons ad- vanced at the hearing to justify Respondent's refusal to employ Reynolds, which were inconsistent with the reasons given to Reynolds, are a fabrication and not the true rea- sons for the refusal to employ him. k. Alan Leibowitz Leibowitz was employed since June 1977 as a bartender at the Windjammer. He had no prior experience tending bar. DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 3. Leibowitz went to the Windjammer to determine if his application had been accepted. He spoke to Gabriel Ferroni and Jason Kuhn. Ferroni told Leibow- itz that his application was rejected because Respondent intended to operate with its own crew, but that Ferroni liked Leibowitz very much and if things did not work out there was a possibility of Respondent calling him back to work at the Windjammer. Ferroni suggested that Leibowitz go to the Bus Stop, a bar Ferroni owned, and talk to the manager about a job and offered Leibowitz a letter of rec- om mendation.44 Ferroni testified that he rejected Leibowitz' application because he was inexperienced and sloppylooking in his dress. As described supra, this was not the reason Ferroni gave to Leibowitz. As in the case of Respondent's other bartender, Reynolds, Ferroni indicated that he was satis- fied with Leibowitz' work, and offered to help him find other employment by giving him a letter of recommenda- tion, explaining that Respondent had decided to hire a whole new crew. Leibowitz credibly testified that the only time during his 2 months of employment under Ferroni's supervision that Ferroni criticized his work performance or appearance was once when Ferroni told him to wear a tie whenever 7Zelinsky was present and to be more sociable with the customers. 45 The foregoing circumstances-the inconsistency be- tween the reason given Leibowitz and the one advanced at the hearing to justify Respondent's rejection of his applica- tion and Respondent's unexplained failure to speak to Lei- bowitz about the alleged failings which Respondent now claims resulted in the rejection of his application-per- suade me that the reason advanced by Respondent at the hearing to justify the rejection of Leibowitz' application was not the real one. I. Hamilton Edward Townsley On the day of his discharge, Townsley had been em- ployed at the Windjammer for over 2 years as a cook. He worked 40 hours a week and was paid by the shift. Towns- ley worked his entire shift even though business may not have warranted it. On September 30, at the meeting of the employees with Respondent's owners, Townsley asked Ray Kuhn whether Respondent's announced intent to pay the employees by the hour instead of by the shift, as had been the practice, meant that if prior to the end of a shift there was insufficient work to keep him busy that Respondent intended to send him home early. Kuhn answered that this was a possibility because it did not make sense to pay em- ployees for work they did not perform. 4The description of the October 3 meeting is based upon Leibwositz' testimony. Ferroni's version is that he told Leibowitz he liked him very much but was not going to hire him because Leibowitz was "a little inexpe- rienced" and suggested he should go to work at the Bus Stop where he could get a "little more experience." Leibowitz impressed me as the more credible witness; accordingly. I have rejected Ferroni's testimony Moreover. Kuhn was not called upon to corroborate Ferroni's testimony: thus, I presume his testimony would have impeached Ferroni's and would have been adverse to Respondent. I reject Ferroni's testimony that during Leibowitz' employment Ferroni cnticized him for being inexperienced and for dressing sloppy. On October 3, Townsley went to the Windjammer to determine if Respondent had accepted his application. He spoke with Gabriel Ferroni, Jason Kuhn, and Ray Kuhn. Ray Kuhn testified that before this meeting Respondent's owners knew Townsley supported two children and be- cause of this was concerned about working 40 hours a week and knew Townsley felt he needed a guarantee of 40 hours' work a week. At the October 3 interview, Townsley was offered employment as a cook but was specifically in- formed that Respondent could not guarantee him 40 hours of work a week. Townsley rejected the job explaining to Respondent's owners, what they already knew, that as the sole support of two children he could not accept a job that did not guarantee him at least 40 hours a week. B. Conclusionary Findings and Analysis 1. Respondent refuses to recognize and bargain with the Union The complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union as the Windjammer's employees' collective-bargaining representative and by making unila- teral changes in their terms and conditions of employment without bargaining with the Union. In order to decide these allegations, it is first necessary to determine whether Respondent is a successor employer within the meaning of the Act and, if so, on what date did Respondent's bargain- ing obligation mature. "It is a settled principle that when employees have bar- gained collectively with an employer and there occurs a change of ownership not affecting the essential nature of the enterprise, the successor employer must recognize the incumbent union and deal with it as the bargaining repre- sentative." Tom-A-Hawk Transit Inc. v. N.L.R.B., # 419 F.2d 1025, 1026-27 (7th Cir. 1969) cited with approval in N.L.R.B. v. Burns International Security Services, 406 U.S. 272, 281 (1972). This principle derives, in part, from the statutory policy of promoting industrial stability and, in part, from the presumption that the Union's majority will survive transfer of managerial authority that does not af- fect the substantial continuity of the employing enterprise. Thus, in N.L.R.B. v. Burns International Security Services, supra, the Supreme Court upheld the Board's finding of successorship where, despite the transfer of the business, there were no significant changes in the unit and a majority of the successor's employees had been represented by an incumbent union. In short, where it is shown that, despite the change in employers, there is substantial continuity in the employee complement and in the unit for bargaining, the predecessor's duty to bargain devolves upon the new "successor" employer. Burns, supra at 278-281. In the instant case, the Windjammer's complement of employees remained identical after Respondent's takeover of the business. When Respondent took over control of the Windjammer on August 9 it employed all of the employees who worked for the predecessor employer except for one, the manager.4 In short, there was a continuity of bargain- ing unit employees. 46 Of course. a substitute in management is not of itself sufficient to de- 790 EAST BELDEN CORPORATION Similarly the record shows that there was a continuity of business operations and organization of job functions, af- ter the takeover, so that the bargaining unit remained a viable one. See The William J. Burns Inrernational Detective Agency, Inc.. [International Union, Unired Plant Guard Workers of America and Its Amalganmaed Local Union No. 162] v. NLR.B.. 441 F.2d 911, 914-915 (3d Cir. 1971), enfd. in pertinent part 406 U.S. 272, 280, fn. 4. Thus, when Respondent took over the Windjammer on August 9 it used the identical facilities as its predecessor, continued to operate a restaurant and bar which was open to the public, employed the same size work force as had worked for the predecessor, who continued to work in their same job clas- sifications and exercise the same skills as previously. Plain- ly, there was a continuity of the employing enterprise. Based upon the foregoing, I find that Respondent is a successor employer for purposes of the Act. Specifically. I find Respondent took over and continued the employing enterprise on August 9, when it hired all of the employees who previously worked for the predecessor employer, and as of that date was legally obligated to recognize and bar- gain with the Union as the employees' collective-bargain- ing representative. 47 I further find that in August, shortly after taking over the operation of the Windjammer, Respondent refused to rec- ognize the Union as the employees' collective-bargaining representative. Thus, within I week after Respondent as- sumed control over the Windjammer, two of its owners, Mr. and Mrs. Ferroni, were approached by union represen- tative Georgedes who, in effect, told them that the Union was taking the position that the Windjammer was still un- der contract with the Union and asked that Respondent sign a contract with the Union.48 Mr. and Mrs. Ferroni refused, explaining to Georgedes that they wanted to dis- cuss the request with Respondent's other owners. There is no evidence that they in fact discussed the matter with the other owners or ever contacted the Union and informed it of their decision. This is understandable inasmuch as Re- spondent's owners' statements made to the employees dur- ing August and September establish Respondent had no intention of ever recognizing or entering into a contract with the Union. In any event, I am satisfied that the en- counter between union representative Georgedes and Re- spondent's owners was reasonably calculated to inform Respondent that the Union was taking the position that it still represented the Windjammer's employees and that Re- feat a finding of successorship where, as in the instant case. there is other- wise a substantial continuity in the employing enterprise 47 A successor employer is obligated to bargain with a union which Is the exclusive bargaining representative of the employees acquired from the pre- decessor, absent a reasonably based doubt that such union represents a majonty of the employees. This is so whether such representative status is evidenced by a Board certification or, as in the instant case, b) recognition and the existence of a collective-bargaining contract. See Roman Catholic Diocese of Brooklyn, etc.. 22 NLRB 1052, 1053 (1976). and cases cited therein. Respondent does not contend, nor does the record establish. that it doubted the Union's majonrity status when it hired all of the predecessor's emRloyees On August 9 Respondent knew that the employees were represented by the Union and shortly thereafter learned that they had been covered by the terms of a contract between Zelinsky and the rnion spondent. as a successor employer, was obligated to ac- knowledge the Union's representative status. Respondent's failure and refusal to recognize the Union as the employ- ees' exclusive bargaining representative constitutes a viola- tion of Section 8(a)(5) and (I) of the Act. In concluding that Respondent became a successor em- ployer for the purposes of the Act as of August 9. and as of that date was obligated to bargain with the Union, I have considered Respondent's contention that the successorship criteria should not be applied until October 3 when Re- spondent first took legal title to the Windjammer. In sup- port of this argument Respondent urges: (I) "there cannot be successorhip without ownership" and Respondent did not own the Windjammer until escrow closed on October 3 (2) during escrow Respondent only managed the Windjam- mer on Zelinskv's behalf and Zelinsky was the employees' employer (3) it would be inequitable to conclude that Re- spondent was a successor during escrow inasmuch as Re- spondent's agreement with Zelinsky precluded Respondent from making any significant changes in the employing en- terprise prior to the close of escrow. Respondent's assertion that "there cannot be successor- ship without ownership" is contrary to the law. It is settled that the controlling factor in successorship cases is not the form of the transfer, but whether the employing enterprise remains essentially the same. E.g., Band-Age, Inc.. 217 NLRB 449 (1975), and Maintenance, Incorporated, 148 NLRB 1299, 1301 (1964). In cases where a successor em- ployer operated a business under a lease agreement, similar to the rental agreement under which respondent operated during escrow, it has been long held that the successor em- ployer may be subject to successorship obligations despite the fact that there has been no transfer of title to the assets. See N. L R.B. v. Pine Valley Division of Ethan A lien, Inc.. 544 F.2d 742 (4th Cir. 1976) enfg. 218 NLRB 208 (1975) (an oral lease agreement); N.L.R.B. v. Valleydale Packers, Inc., of Bristol, 402 F.2d 768 (5th Cir. 1968) enfg. 162 NLRB 1486, 1490 (1967); N.LR.B. v. Lunder Shoe Corp., d/b/a Bruce Shoe Co. 211 F.2d 284(Ist Cir 1954); N.L. R.B. v. Albert Armato and Wire & Sheet Metal Specialty Co., 199 F.2d 800, 802 (7th Cir. 1952). Likewise, I reject Respondent's contention that during escrow it was not the employer, but only managed the busi- ness on behalf of Zelinsky. Consistent with the parties' sales agreement which, in substance, provided that during escrow Respondent would "legally operate its business at the [Windjammer]" and undertake "full management and control of the business," the Respondent, effective August 9, replaced Zelinsky as the employees' employer. On Au- gust 9 Respondent's owners introduced themselves to the employees as the new owners. Effective August 9, all busi- ness licenses, insurance policies, books of account and business records necessary to operate the Windjammer were placed in Respondent's name. Also, effective August 9, Respondent, not Zelinsky, maintained the Wind- jammer's books of accounts and other business rec- ords. Respondent, with the commencement of escrow, not Zelinsky, paid the Windjammer's operating expenses in- cluding utility charges, taxes, food and beverage expenses, employees' wages and payroll taxes. And, for managing the Windjammer during escrow, Respondent's owners were 791 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD paid by Respondent, not Zelinsky. Finally, it was Respon- dent, not Zelinsky, that could expect to make a net profit or suffer a loss from the operation of the business during escrow. In short, during escrow, Respondent operated the Windjammer for its own account, not for Zelinsky's. and Zelinsky had virtually nothing to do with the operation of the Windjammer after August 8. It is for all of these rea- sons that I am persuaded that the record overwhelmingly establishes that it was Respondent, not Zelinsky, that was the employer in this case during escow. In concluding that Respondent was the employer during escrow, I recognize that there was a possibility during that period that Respondent would only operate the Windjam- mer temporarily due to the danger, however remote, that Respondent's deal with Zelinsky to purchase the Windjam- mer might fall through. However, even though an employer may only be operating a business temporarily it does not privilege the employer to ignore the provisions of Section 8(a)(5) of the Act. See, N.LR.B. v. Pine Valley Division of Ethan Allen, Inc., supra, Marion Simcox, Trustee of Wagner Shipyard and Marina Inc., et al. d/b/a Stateside Shipyard and Marina, Inc., 178 NLRB 516 (1969); Paul Stevens, Re- ceiver of Carolina Service Stages, a corporation et al., 109 NLRB 86, 107-108 (1954). 1 note that the instant case is not one wherein a purchaser of a business operates tempo- rarily with the predecessor's employees in order to finish the work in progress and thereafter carries out its original intent of changing the essential nature of the operation to be performed, thereby necessitating replacing the predecessor's employees with those who exercise different skills. See Galis Equipment Company, Inc., 194 NLRB 799 (1972). There is no contention here that Respondent in- tended to change the essential nature of the business to be performed at the Windjammer. Quite the contrary, the rec- ord shows that even after the title to the business was trans- ferred to Respondent that the business remained essen- tially the same and that the work performed by the employees required the same skills as before. In evaluating Respondent's contention that it would be unfair to impose upon it the burden of a successor em- ployer during escrow because its agreement to purchase the business precluded it from making any significant changes during that period in the employing enterprise, I believe it is significant that Respondent did not have to agree to step into Zelinsky's shoes and operate the business prior to the close of escrow. There is nothing in the law of the State of California which requires that a prospective buyer of a business take control over the business prior to the close of escrow. Nor is there any contention or evidence that Re- spondent was compelled to agree to take over the opera- tion of the business immediately as a part of the "price" for purchasing the Windjammer. Respondent of its own free will chose to enter into this type of an arrangement with Zelinsky. In any event, assuming for the sake of argument, that Respondent was compelled to operate the business during escrow, the terms of Respondent's agreement with Zelinsky did not require it to continue the employing enter- prise unchanged. Thus, although the agreement with Zelin- sky prevented Respondent from making physical altera- tions during escrow, it otherwise granted Respondent full authority to manage and control the business, as long as it was done in a businesslike manner. When Respondent's owners took control over the Windjammer on August 9, they had the complete authority under the terms of the sales agreement to replace all or some or none of Zelinsky's employees and to change all or some or none of the em- ployees' terms and conditions of employment. Respondent, for reasons of its own, decided to retain all of Zelinsky's employees, except for the manager, and to employ them under substantially the same terms and conditions of em- ployment as had existed previously. It is because of all of the foregoing reasons that I reject Respondent's contention that it would be inequitable to impose the obligations of a successor employer upon it during escrow. Based upon the foregoing, I conclude that the appropri- ate period for considering whether Respondent occupied the status of a successor Employer commenced on August 9, when Respondent took over control of the Windjammer, and not, as Respondent contends, on October 3, when it became the legal owner. 2. Respondent unilaterally changes the employees' terms and conditions of employment The Supreme Court held in Burns, supra, that a successor employer is not required to observe the substantive terms of the predecessor's collective-bargaining agreement with a union. It held that "a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor .. ." 406 U.S. at 294. The Court made it clear in Burns, however, that once the obligation to bargain has matured, the successor stands in no different position than his predecessor and cannot lawfully take unilateral action affecting employees' working conditions. Accordingly, a successor employer is required to bargain over changes in the predecessor's terms of employment if the duty to bar- gain arises before it initiates such changes. The question, then, is whether the Union's majority status was evident when the successor set the changed terms. Spitzer Akron, Inc. v. N.L.R.B., 540 F.2d 841, 844-845 (6th Cir. 1976) citing N.L.R.B. v. Bachrodt Chevrolet Co., 468 F.2d 963, 969 (7th Cir. 1972). Once the duty to bargain attaches, the successor employer is subject to the corollary duty not to make changes in wages, hours or working conditions with- out giving the Union notice and an opportunity to bargain. N. L. R. B. v. Benne Katz, d/b/a Williamsburg Steel Products Co., 369 U.S. 736 (1962). I have concluded, supra, that Respondent succeeded to the predecessor's collective-bargaining obligation on Au- gust 9 when it took control of the Windjammer and select- ed as its work force all of the predecessor's bargaining unit employees to perform the same tasks at the same place they had worked in the past. In view of these circumstances and guided by the aforesaid principles of law, I find that Respondent, in violation of Section 8(a)(5) and (I) of the Act, made unilateral changes in the employees' wages, hours, and other terms and conditions of employment without bargaining with the Union, as follows:49 (1) In late 49 The record reveals that when each one of these unilateral changes was instituted. Respondent knew that the Union was the collective-bargaining representatise of the employees who were affected by the changes. 792 EAST BELDEN CORPORATION August it eliminated the bartenders' break period. (2) In the middle of August it discontinued paying overtime for hours worked over 8 in a day. (3) In late August it reduced the wages of Kalisa Fallon. (4) On August 9 it discontinued making payments on behalf of the employees into the pen- sion, health and welfare trust funds established by the ter- minated collective-bargaining agreement, thus, discontinu- ing the employees' medical and pension benefits. See Charles Starbuck and Diane Starbuck, d/b/a Starco Farm- ers Market, 237 NLRB No. 52 (1978). (5) On October 4 it discontinued paying employees by the shift, but com- menced to pay them by the hour. (6) On October 4 it insti- tuted new paid vacation, sick leave, and death benefit pro- grams. (7) On October 4 it instituted a new medical insurance program. 0 In concluding that the aforesaid unilateral changes are illegal, I have considered the decision of the Supreme Court in Burns wherein the Court stated that successor em- ployers are free to unilaterally establish the terms on which they will hire employees of a predecessor, unless "it is per- fectly clear that the new employer plans to retain all of the employees in the unit .... " In such cases, the Court stat- ed, the successor must consult with the employees' bargain- ing representative before establishing initial terms of em- ployment. Burns at 294-295. This case falls within this category. Having as of August 9 retained all of the predecessor's unit employees in its own employ. Respon- dent, under the teaching of Burns was thereafter no longer free, as a successor Employer, either to fix its own initial terms and conditions of employment or to change previ- ously established terms and conditions of employment for such employees without consulting the Union. I recognize that when it took over the business of August 9 that Re- spondent indicated to the employees that at some time in the future, after escrow, certain unspecified changes in their terms and conditions of employment would be insti- tuted. This did not, however, privilege Respondent's subse- quent unilateral changes in the employees' terms and con- ditions of employment. For, as to those changes made prior to the close of escrow, Respondent misled the em- ployees by indicating to them that no changes would be made during that period. See Spruce Up Corporation, 209 NLRB 194, 195 (1974). And, as to those changes made when escrow closed, 2 months after Respondent succeeded to the predecessor's bargaining obligation, I do not read Burns as allowing a successor employer to make unilateral changes in employees' terms and conditions of employ- ment 2 months after succeeding to the predecessor's bar- gaining obligation, particularly, where as in the instant case, the predecessor's employees, when offered continued employment by the Respondent, were not clearly informed of the nature of the changes which Respondent intended to 50 Also on October 4. Respondent ostensibly discontinued the past prac- tice of allowing employees to work part lime. In such a change in the em- ployees' terms and conditions of employment had in fact been made It would also constitute an unlawful unilateral change However. as I have indicated. supra, the record establishes that this alleged change was a fiction fabricated by Respondent to enable it to refuse to continue to emplos sev- eral of its employees so as to avoid having to recognize and bargain with the Union. institute in the future, rather Respondent's announcement was couched in generalized and speculative terms. 3. The interference, restraint, and coercion a As described more fully supra, in the latter part of Au- gust President Ferroni asked bartender Frank Michell, who had worked at the Windjammer for 9 years, how he felt about the Union. When Michell indicated he felt the Union was fine, Ferroni stated that he was thinking of dropping the Union, asked if Michell would stay if Re- spondent dropped the Union, and promised him a bonus and better benefits if he would remain without union repre- sentation. In addition, Ferroni told Michell that in order to drop the Union, Respondent would have to get rid of al- most all of the employees when escrow closed, but wanted Michell to stay. Ferroni's interrogation of Michell about his feelings to- ward the Union violated Section 8(a)(1) of the Act. In questioning Michell about his attitude toward the Union and, as described infra, in questioning other employees about their attitudes toward the Union, Ferroni and Re- spondent's other owners did not have, and did not suggest to the employees that they had, any legitimate reason for questioning them, and gave no assurance against reprisal. Contrariwise, the interrogation of the employees which oc- curred in this case took place at the same time Respondent was voicing its hostility toward union representation and committing unfair labor practices. It is for this reason that I have concluded that Respondent's interrogation of Mich- ell about his feelings toward the Union and Respondent's similar interrogation of other employees, infra, violated Section 8(a)(l) of the Act. President Ferroni's promise of benefits to Michell to per- suade him to remain with Respondent without union repre- sentation also violated Section 8(aX ) of the Act. Likewise, Ferroni's statement that Respondent would have to get rid of almost all of the employees in order to drop the Union violated Section 8(aXlI) inasmuch as it constitutes a decla- ration that in order to avoid its lawful bargaining obliga- tion Respondent intended to discharge almost all of the employees. This statement may reasonably be said to have a tendency to interfere with Michell's right to support the Union. b As described more fully supra, in the latter part of Sep- tember President Ferroni told waiter Lee Duran that Re- spondent was "getting rid of the Union" and intended to get rid of 50 percent of the employees, explaining to Du- ran, "it's a law that you have io get rid of 50 percent of the employees when you drop the Union." Ferroni's declaration to Duran that Respondent intend- ed to get rid of the Union by discharging 50 percent of the Windjammer's employees, as was the case with Ferroni's similar statement to Michell, constitutes a violation of Sec- tion 8(a)( 1) inasmuch as it may reasonably be said to have a tendency to interfere with Duran's statutory right to sup- port the Union. 793 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As described more fully supra, in the middle of Septem- ber, President Ferroni asked waitress Heather Healey if she would continue to work for Respondent if the Windjam- mer became nonunion, assuring her that Respondent was a good employer and would take care of its employees. Also, Ferroni stated that by law Respondent would be compelled to discharge 50 percent of the employees when it took over the Windjammer, but that Healey would be one of the employees Respondent retained. As described more fully supra, in the middle of Septem- ber, Halina Ferroni, a part owner of Respondent and its corporate secretary, asked Healey how she felt about the Union and if she would work for Respondent if the Wind- jammer were nonunion. Also, Ferroni told Healey that the Union was connected with the "mob," that the Union would cause nothing but trouble and Respondent did not want any interference from the Union. As described more full supra, in August, after Respon- dent began to operate the Windjammer Jason Kuhn, as well as President Ferroni, asked Healey what she thought of the Union and thereafter during August and September all four of Respondent's owners asked Healey whether she would work for Respondent if it were nonunion. The aforesaid repeated questioning of Healey by Re- spondent's owners about her feelings toward the Union and whether she would work for Respondent if the Wind- jammer became nonunion violated Section 8(a)(1) of the Act." d As described more fully supra, in September on two sep- arate occasions President Ferroni asked waiter Mark Ma- son how he felt about the Union and in the latter part of September asked bartender David Reynolds how he felt about the Union and if Reynolds would consider continu- ing to work at the Windjammer if it were nonunion. By interrogating Mason and Reynolds about their feel- ings toward the Union, Ferroni engaged in conduct which violated Section 8(a)(1) of the Act. As described more fully supra, in September, either Ja- son Kuhn or Ray Kuhn, owners of Respondent, asked waiter Michael Labrie if he would be willing to work in a nonunion restaurant. This placed Labrie in the position of having to reveal his union sympathies. By engaging in this conduct, Respondent violated Section 8(a)( 1) of the Act. I As described more fully supra, on September 30, Ray Kuhn and President Ferroni told all of the employees that 51 Asking Healey whether she would work for Respondent if the Wind- jammer became nonunion was calculated to force Healey into revealing her union sympathies. if the Union should strike and picket Respondent and the employees desired to continue in Respondent's employ, they would have to go through the Union's picket line. Implicit in this statement was a warning that employees could expect to be terminated if they exercised their statu- tory right to honor the Union's picket line. By making this statement Respondent violated Section 8(a)(X) of the Act.5 2 g As described more fully supra, on September 30, Ray Kuhn, one of Respondent's owners, in the presence of the rest of Respondent's owners, repeatedly told the employees that Respondent had no intention of signing a contract with the Union, explaining to the employees "we just don't want to be tied down to a contract and have some outside agency . . . dictate to us how to operate our business, we need the flexibility . . . to run the business as we see it." This statement violates Section 8(a)(l) of the Act because a statement that an employer does not intend to enter into a collective-bargaining agreement amounts to an anticipato- ry refusal to bargain and inculcates in employees a sense of futility about the exercise of free choice in selecting a rep- resentative for collective-bargaining. See El Rancho Mar- ketr, 235 NLRB 468 (1978). h As described more fully supra, during the week of Octo- ber 2, waiter Hairy Cohen was informed by President Fer- roni that the Windjammer was no longer a union restau- rant and because of this Respondent anticipated difficulty with the Union and asked whether Cohen would cross a union picket line. Cohen stated that he would not cross such a picket line whereupon Ferroni refused to allow him to continue to work. As described more fully supra, on October 5, waiter Mark Mason was asked by Ray Kuhn how he would feel if there were a union picket line in front of the Windjammer and whether he would give up his union affiliation. Mason stated that he was unable to answer this question and would not be able to answer it until he was actually faced with such a situation. Kuhn refused to allow Mason to continue in Respondent's employ, explaining to him that she did not think he was totally committed to Respondent and was not sure he would cross the Union's picket line. As described more fully supra, on October 3, waiter Ar- turo Rico was asked by either Jason Kuhn or President Ferroni whether he was willing to get out of the Union and whether he would cross a union picket line. Rico indicated he would resign from the Union and cross its picket line. s Although Respondent was privileged to notify the employees that they would he replaced if they ceased work in :upport of a strike by the Union. it could not lawfully threaten them with termination or otherwise give them the impression that if they ceased work to strike and picket the) would lose their jobs and be without any right to einstatement. See George Webel. d h 'a WRehel Fed Milks & Pike Tranvif ( 'mpanr, 217 NL RB 815. 818 1 1975) 794 EAST BELDEN CORPORATION He was alowed to continue in Respondent's employ and promoted from waiter to headwaiter. By asking Mason whether he would give up his union affiliation and asking Rico whether he was willing to get out of the U;ion, Respondent engaged in the type of inter- rogation which forces employees to reveal their union sen- timents; accordingly, by engaging in this conduct, Respon- dent has violated Section 8(a)(1) of the Act. I am also persuaded that in view of the Respondent's other unfair labor practices, which were taking place at the same time, that this conduct constitutes improper solicitation of em- ployees to withdraw from the Union and for this additional reason violated Section 8(a)(l1) of the Act. By questioning Cohen, Mason, and Rico about their willingness to cross a picket line if the Union should call a strike and picket, Respondent violated Section 8(a)(1) of the Act. This kind of questioning requires the employee being questioned to reveal whether or not he or she intends to support the Union. I recognize, "that questions about employee strike intentions are not per se unlawful but must be judged in light of all the relevant circumstances." Mosh- er Steel Company, 220 NLRB 336 (1975). Here the ques- tioning occurred contemporaneously with Respondent's other unfair labor practices including its statement to the employees that it would be futile for them to support the Union because it did not intend to enter into a contract with the Union and its threats to discharge the majority of the employees in order to get rid of the Union and the actual discharge of the employees for this purpose. Also, when Cchen and Mason failed to indicate a willingness to refrain from striking and crossing a union picket line, Re- spondent refused to employ them even though there was no strike or a threat of an imminent strike. 53 In addition. the interrogation did not take place in the context of a prospective economic strike, but occurred in the context of a prospective unfair labor practice strike caused by Re- spondent's unlawful refusal to recognize and bargain with the Union. Accordingly, for this reason alone, Respondent had no legitimate justification for questioning the employ- ees about their intentions in the event of a strike for as unfair labor practice strikers Respondent was not privi- leged to replace them. Under the circumstances, I find that the Respondent's interrogation of Cohen, Mason, and Rico about their willingness to cross a union picket line was unlawful. 4. Respondent discharges all of the employees On October 2, Respondent discharged all of the Windjammer's employees, closed the restaurant for I day and, when it reopened, rehired only 17 of the 39 employees that had been discharged. The General Counsel takes the position that the wholesale discharge of the employees vio- lated Section 8(a)(1) and (3) of the Act because it was moti- vated by Respondent's desire to avoid its legal obligation to recognize and bargain with the Union as the employees' collective-bargaining representative. I am satisfied, for the SI There is no evidence that the nion had indicated to Respondent that it intended to call the employees out on strike or picket Respondent reasons set forth herein, that the record supports this con- tention. As I have concluded supra, on August 9, when Respon- dent commenced to operate the Windjammer with all of the predecessor's employees it was obligated to recognize and bargain with the Union as the employees' collective- bargaining representative. Respondent, however, incorrect- ly believed that its bargaining obligation as a successor employer did not mature until escrow closed. On August 9, at their initial meeting with the employees, Respondent's owners told them that Respondent, when escrow closed, would allow the employees to decide whether the Wind- jammer would remain union or become nonunion. Shortly after, however, Respondent learned about the Union's con- tract with the predecessor employer. Also, a union repre- sentative notified Respondent's president that the Union expected Respondent to recognize it as the employees' col- lective-bargaining representative and sign a contract. Re- spondent's owners promptly set out on a course of conduct reflecting Respondent's hostility toward union representa- tion and its desire to evade its obligation as a successor employer to recognize and bargain with the Union for a contract. Thus, Respondent's owners interrogated employ- ees about their feelings toward the Union, asked whether the employees would continue working for Respondent if it dropped the Union and became nonunion, and promised one employee increased benefits as a substitute for union representation. Also, virtually contemporaneously with the employees' discharge, Respondent's owners told the em- ployees that Respondent did not intend to sign a contract with the Union: ;hus, indicating to the employees it would be futile for them to even think of union representation while working at the Windjammer. At the same time Re- spondent's owners also told the employees that if the Union attempted to secure recognition and a contract by striking the Windjammer that the employees, in order to continue working for Respondent, would have to agree to remain at work and not join the strike. Respondent's hostility toward the Union and its scheme to avoid its obligation to bargain with the Union is further demonstrated by the fact that in interviewing employees who had been discharged for the purpose of determining whether they qualified for reinstatement, Respondent's owners questioned at least three of them-Mason, Cohen. and Rico--about their willingness to cross a union picket line and refrain from striking if the Union called a strike over Respondent's refusal to bargain. When Cohen and Mason refused to commit themselves to crossing such a union picket line, they were denied reinstatement. Rico, after indicating that he would resign from the Union and continue to work despite a union picket line, was reinstated and promoted. In addition, while interviewing discharged employees Rico, Mason, Labire, Cohen, and Atkin to de- termine whether they qualified for reinstatement, Respon- dent's owners solicited Rico and Mason to withdraw from the Union and informed Labrie, Cohen, and Atkin that Respondent intended to operate nonunion. Respondent's hostility toward union representation and its plan to avoid recognizing the Union as the employees' bargaining representative is plainly revealed by the state- ment of President Ferroni to bartender Michell that Re- 795 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent intended to drop the Union and that in order to drop the Union Respondent would have to get rid of al- most all of the employees when escrow closed and his simi- lar statement to waiter Duran that Respondent intended to get rid of the Union by discharging 50 percent of the em- ployees. In a similar manner Ferroni, while asking waitress Healey if she would work for Respondent if the Windjam- mer became nonunion, told Healey that by law Respon- dent was required to discharge 50 percent of the employees when escrow closed. Such statements cogently reveal a pre- design to discharge a majority of the Windjammer's em- ployees when escrow closed in order to avoid having to recognize and bargain with the Union. In defense of its discharge of the employees on October 2, Respondent contends that its conduct was motivated by legitimate business considerations. In support of this con- tention, Respondent relies upon President Ferroni's testi- mony that the reason for discharging all of the employees was that Respondent's owners wanted to take a fresh look at the entire staff employed by the Windjammer, compare them with other applicants who had applied for jobs, and from the entire group of applicants select the best crew. Ferroni also testified that the reason Respondent's owners did not discharge one unit employee during their first 2 months of operating the Windjammer, but had waited for October 2, was because title did not pass to Respondent until October 3 when escrow closed and that until then the employees were employed by Zelinsky, not Respondent. Ferroni in this regard testified that the October 2 dis- charges were carried out by Respondent "on behalf of Ze- linsky." I am persuaded, for the reasons set forth herein, that Respondent's defense does not withstand scrutiny. The record does not support President Ferroni's asser- tion that the October 2 discharge of Respondent's employ- ees was affected so as to enable Respondent to select the best possible crew of employees to work at the Windjam- mer. First, aside from Ferroni's bare assertion, Respondent came forward with no evidence to support this assertion. Respondent did not present evidence which demonstrated that discharged employees were replaced by more qualified employees. Nor did Ferroni describe in any detail Respon- dent's procedure or criteria utilized to determine whether or not to replace current employees by outside applicants. In fact, when Ray Kuhn, one of the owners who suppos- edly participated in deciding which applicants to employ, was questioned about the procedure used by Respondent's owners to make these decisions, her testimony was vague, evasive, and contradictory. The failure of Respondent to corroborate President Ferroni's conclusionary self-serving testimony with other evidence is particularly damaging to Respondent's defense because the record reveals that Re- spondent gave patently false reasons for rejecting the em- ployment applications of several of the discharged employ- ees, and that in place of the experienced workers whom it had discharged Respondent hired inexperienced appli- cants. Thus, as described supra, the evidence presented concerning the efforts of 12 of the dischargees to be rein- stated establishes that the reasons which Respondent gave to seven 54 for rejecting their applications for reinstatement 54 Fallon. Reynolds, Souza, Duran, Leibowitz, Healey. and Labrie. were patently false; two applications 55 were rejected be- cause the applicants refused to indicate that they would refrain from supporting the Union in the event of a strike over Respondent's illegal refusal to bargain with the Union, one application-Rico's-was accepted when the applicant indicated he would refrain from supporting the Union in the event of such a strike. Another applicant- Townsley-was offered a position under conditions which Respondent knew he was bound to reject and the twelfth applicant-Atkin-was offered a position conditioned upon his accepting Respondent's unlawful refusal to recog- nize the Union as the employees' bargaining representative and working under nonunion working conditions. At the same time, as Respondent's owners were unjustifiably re- jecting applicants who had previously worked at the Wind- jammer and were conditioning employment of other such applicants upon their agreement to work under nonunion conditions and not to support the Union in its dispute with Respondent, Respondent was also hiring inexperienced ap- plicants to work in their place. Thus, it is undisputed that on October 3 and continuing thereafter, the Respondent's headwaiter trained new employees who were "very new" to the type of work for which they had been hired to perform. While they may have worked in a coffee shop prior to being hired to work at the Windjammer, the new hires lacked the experience to perform the type of work required at the Windjammer and, apparently due to their lack of experience, a substantial number of them remained only for a short period of time. The foregoing circumstances in their totality persude me that President Ferroni's testimony that Respondent discharged all of the employees in order to select the best crew to operate the Windjammer is false. Likewise, I reject Ferroni's testimony that Respondent, during its first 2 months of operation, failed to discharge employees and replace them with more satisfactory work- ers because it thought, until escrow closed on October 3 and title to the Windjammer was transferred, that Zelinsky was still the employees' employer and that Respondent made the October 2 discharges "on behalf of Zelinsky." The record does not support this contention. As I have found supra, the record overwhelmingly establishes that Respondent, not Zelinsky, was the employer during es- crow. There is not an iota of evidence, other than Ferroni's self-serving testimony, to support his contention that dur- ing the escrow period Respondent had a good faith belief that Zelinsky, rather than Respondent, was the employees' employer. Quite the contrary, the evidence as detailed, su- pra, overwhelmingly demonstrates that no reasonable per- son could have held such a belief. In fact, the record re- veals that Respondent hired employees during escrow and fired the Windjammer's manager prior to the date his con- tract with Zelinsky was due to terminate, changed the job duties of employees, eliminated the bartenders' break pe- riods, engaged a detective agency to investigate the work habits of the bartenders, decreased the pay of one employ- ee, eliminated overtime pay for hours worked over 8 in a day, and discontinued the employees' medical and pension benefits by ceasing to make the monthly payments on be- half of the employees for those benefits. The foregoing cir- ~ (Cohen's and Mason's applications 796 EAST BELDEN CORPORATION cumstances persuade me that Respondent's contention that it believed it did not occupy the status of employer until escrow closed and title had passed was a fabrication manufactured to enable Respondent to justify discharging all of the employees when escrow closed. This, when viewed in the light of Respondent's extreme hostility to- ward union representation and President Ferroni's admis- sion that Respondent intended to get rid of the Union by discharging employees at the close of escrow and the pre- textual nature of the reason advanced by Respondent for discharging the employees, has led me to conclude that on October 2 Respondent discharged all of its employees in furtherance of an unlawful scheme to avoid having to rec- ognize and bargain with the Union. By engaging in this conduct Respondent violated Section 8(a)3) and (I) of the Act.5 I recognize that Armand "Ted" Allegra, Sr., William Al- len, and Genaro Amezcua, who were included among the employees discharged by Respondent, were statutory sup- ervisors. Nonetheless, their discharges violated Section 8(a)() of the Act where, as here, Respondent discharged its supervisors in order to carry out its unlawful scheme to avoid having to recognize and bargain with the Union. The supervisors were discharged so Respondent could interfere with the employees' statutory right to have union represen- tation. In other words, the discharge of the supervisors was an important element in Respondent's total strategy de- signed to rid itself of the Union. Accordingly, I find that the discharge of Armand "Ted" Allegra, Sr., William Al- len, and Genaro Amezcua was "an integral part of a pat- tern of conduct aimed at penalizing the employees for their union activities." and therefore violated Section 8(a)(1) of the Act. See, Pioneer Drilling Co., Inc., 162 NLRB 918, 923 (1967); Krebs and King Toyota, Inc., 197 NLRB 462, fn. 4 (1972); Donelson Packing Co., Inc. and Reigel Provision Company, 220 NLRB 1043 (1975). Conclusions of Law I. Respondent, East Belden Corporation, is an Em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Bartenders and Culinary Workers Union, Local 126, Hotel and Restaurant Employees and Bartend- ers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of Respondent employed at the Wind- jammer bar and restaurant located in Tiburon, California, excluding guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union at all times material herein has been, and is now, the exclusive bargaining representative of all em- ployees in the aforesaid bargaining unit within the meaning of Section 9(a) of the Act. 56 1 note that it is settled that a group termination which is undertaken to avoid union representation violates the Act as to all victims of the termina- tion regardless of the employer's knowledge of their union sympathies and regardless of whether they are prounion at all. See. Rock Tenn (ompany. Corrugated Division, 234 NLRB 823. 825 (1978). Also see American Bottling Co.. 99 NLRB 345. 352 (1952). 5. By failing and refusing to recognize and bargain with the Union as the exclusive representative of the employees in the appropriate unit, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. 6. By unilaterally changing previously established terms and conditions of employment for bargaining unit employ- ees that were in existence at the time Respondent incurred its obligation to recognize and bargain with the Union as the exclusive representative of the employees in the appro- priate unit, and by failing as a consequence to grant bar- gaining unit employees the benefits to which they were en- titled under such terms and conditions, Respondent has engaged in, and is engaging in, unfair labor practices with- in the meaning of Section 8(aX5) and (I) of the Act. 7. By interrogating employees about their union sympa- thies, by soliciting employees to withdraw from the Union, by promising an employee better terms and conditions of employment to dissuade him from supporting the Union, by threatening employees with discharge because they are represented by the Union, by interrogating employees about their willingness to support a strike by the Union, by conditioning continued employment upon employees agreeing not to support a union-sponsored strike, and by telling employees that Respondent does not intend to sign a contract with the Union, Respondent has engaged in, and is engaging in, unfair labor practices within the mean- ing of Section 8(a)(l) of the Act. 8. By discharging the employees who are named in Ap- pendix A of this Decision on October 2, 1977, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 9. By discharging Armand "Ted" Allegra, Sr., William Allen, and Genaro Amezcua on October 2, 1977, Respon- dent has engaged in, and is engaging in, unfair labor prac- tices within the meaning of Section 8(a)(l) of the Act. THE REMEDY Having found that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union after August 8, 1977, and by unilaterally changing employees' wages, hours, and other terms and conditions of employment after August 8, 1977, 1 shall rec- ommend it to cease and desist therefrom and to take cer- tain affirmative action in order to effectuate the policies of the Act. The remedy should be fashioned with a view to- ward restoring the situation, as nearly as possible, to that which would have prevailed absent the unfair labor prac- tices. I shall therefore recommend that, among other things, Respondent, upon the request of the Union, revoke until such time as Respondent negotiates with the Union in good faith to agreement or impasse thereon, all the unila- teral changes which heretofore in this Decision have been found to have violated the Act and to make the unit em- ployees whole for any financial loss they may have suffered by reason of the aforesaid unilateral changes, 57 with inter- " So there is no misunderstanding. I note that the make whole portion of "The Remedy" herein requires that Respondent make whole the unit em- Continued 797 DECISIONS OF NATIONAL LABOR RELATIONS BOARD est as prescribed in Florida Steel ('orporation, 231 NLRB 651 (1977). Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)( 1) and (3) of t:ie Act. I shall recommend that it cease and desist therefrom and take certain affiramtive action de- signed to effectuate the policies of the Act. Specifically. having found that the discriminatees named in Appendix A herein, as well as Armand "Ted" Allegra. Sr., William Allen, and Genaro Amezcua, were illegally discharged by Respondent I shall recommend that Respondent. if it has not already one so. offer each of them immeidate and full reinstatement to their former jobs 58 or, if those jobs are no longer in existence, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges and to make them whole for any oss of pay S9 or other employment benefits they may have suffered as the result of their discharges. Backpay shall be computed on a quarterly basis in accordance with F. W. Woolworth Com- pany, 90 NLRB 289 (1950). with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). See gener- ally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The record reveals that on October 4, 1977, a number of the discriminatees were reinstated and thereafter two more were reinstated. However, whether or not Respondent's obligation to reinstate these discriminatees has been satis- fied was not litigated and is better left for the compliance stage of this proceeding. The parties, however, fully litigat- ed whether Respondent's offers of reinstatement to dis- criminatees Tom Atkin, Hamilton Townsley, Michael La- bire, Beverly Souza, and Lee Duran satisfied Respondent's obligation. I find that the offers of reinstatement to these employees were insufficient to terminate Respondent's re- instatement or backpay liability obligation. Thus, as de- scribed in detail supra, Respondent did not offer Souza or Duran their former positions as part-time workers but re- quired them to accept full-time work. And, with respect to Townsley, Respondent offered him his old position but un- der significantly different terms of employment. Townsely, who previously had been guaranteed 40 hours of work a week, was informed he no longer would be guaranteed 40 hours and if the work load did not warrant his presence would be sent home before his shift ended. This offer was consistent with Respondent's new policy of paying employ- ees such as Townsley by the hour rather than by the shift ployees by. among other things. paying all pension. health and welfare con- tributions set forth in the terminated collective-bargaining agreement which have not been paid and which would have been paid absent Respondent's unlawful unilateral discontinuance of such payments found herein See Charles Srarbuck and Diane Srarbuck, d b a Sltarco fIarers Market, 237 NLRB No. 52 11978). is As found supra. discriminatee Mark Mason several months after his discharge repeatedly threatened to kill Respondent's president. By engaging in this conduct. I find that Mason forfeited his right to reinstatement and I shall recommend that Respondent pay him backpay from the time Respon- dent unlawfully discharged him. October 2. 1977. until February 20. 1978. the time of Mason's own misconduct See O. R. (ooper and Son,t. 220 Nl RB 287 (1975). ' The record establishes that but for Respondent's decision to unlawfulls discharge all of its employees on October 2. that the Windjanmmer on Octo- ber 3 would have been open for business. Accordingly, those discriminatees who were scheduled to work October 3 should he reimbursed for their loss of earnings suffered due to the October 3 closing of the Windjammer which had been the past practice. T his was a change in a significant term and condition of Townsley's employment which, as I have found suran, was instituted unilaterally in violation of Section 8(a)(5) of the Act. Finally. regarding Atkin. Respondent's offer of reinstatement was specifically conditioned upon his agreeing to work "non-union," that is, to accept Respondent's unlawful refusal to recognize and bargain with the Union and to work under unlawfully imposed working conditions. See Superior Sprinkler, Inc.. 227 NLRB 204. 208 210 (1977). and Marquis Elevator Company. 217 NLRB 461 (1975). It is for these reasons that I find that Respondent's offers of reinstatement to Labire, Atkin, Townsley, Souza, and Duran were insufficient. As the unfair labor practices committed were of a char- acter which go to the very heart of the Act, I shall recom- mend an Order requiring Respondent to cease and desist therefrom and to cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 6o The Respondent, East Belden Corporation, Tiburon, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with the Union, Bartenders and Culinary Workers Union, Local 126, Hotel and Restaurant Employees and Bartenders In- ternational Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees employed by Respondent at the Wind- jammer bar and restaurant, Tiburon, California, ex- cluding guards and supervisors as defined in the Act. (b) Unilaterally changing wages, hours, or other terms and conditions of employment of the employees in the aforesaid bargaining unit in derogation of its bargaining obligations to the aforesaid Union and to the rights of em- ployees under the Act. (c) Discouraging membership in the aforesaid Union, or any other labor organization, by discharging employees or otherwise discriminating against them in any manner with regard to their hire and tenure of employment or any term or condition of employment. (d) Interrogating employees about their union sympa- thies and their willingness to support a union-sponsored strike, soliciting employees to withdraw from a union, promising employees better terms and conditions of em- ployment to dissuade them from supporting a union, ,'' In the event no exceptions are filed as pros ided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations. be ado.pted by the Board and become its findings. conclusions. and Order, and all objections thereto shall be deemed waised for ;ll purposes 798 EAST BELDEN CORPORATION threatening employees with discharge because they are rep- resented by a union, telling employees Respondent does not intend to sign a contract with a union, and condition- ing employees' employment upon their agreeing not to sup- port a unior-sponsored strike. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Recognize, and upon request bargain collectively with, the above-named Union as the exclusive representa- tive of all its employees in the appropriate unit described above, with respect to rates of pay. wages, hours of em- ployment, and other terms and conditions of employment. and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Upon the request of the above-named Union revoke the unilateral changes in the rates of pay, wages. and other terms and conditions of employment described in this De- cision which were placed into effect by Respondent in the appropriate unit, until such time as Respondent negotiates with the Union in good faith to agreement or impasse thereon. (c) Make whole the employees in the appropriate unit for any loss of pay or other benefits they may have suffered as a result of Respondent's unilateral implementation of rates of pay, wages, and other terms and conditions of em- ployment, which were described in this Decision. with in- terest as computed in Florida Steel Corporation, 231 NLRB 651 (1977), and continue such payments until such time as Respondent negotiates in good faith with the Union to agreement or to impasse. (d) Offer to Armand "Ted" Allegra, Sr., William Allen. Genaro Amezcua and to each of the persons named in Appendix B herein, if they have not already been so of- fered, immediate and full reinstatement to their former pc- sitions or, if such positions no longer exist, to substantially equivalent ones, without prejudice to seniority or other rights and privileges previously enjoyed. and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, in the manner set forth above in the section of this Decision entitled "The Remedy." "0 (e) Preserve and, upon request, make available to the Board or its agents. for examination or copying. all pay roll recoirds. social security payment records, timecards. per- sonnel records and reports, and all other records necessary to analN/e the alitlltms (,f backpay due and the tights of reinstatement under the ternms of this Order. (f) Post at its place of business copies of the attached notice marked "Appendix A." 62 Copies of said notice, on forms provided by the Regioanl Director fro Region 20. after being duly signed by Respondent's representatives, 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 are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order. what steps Respondent has taken to comply herewith. If IS FUtRTHER ORt)DRED that the complaint be, and it hereby is. dismissed insofar as it alleges that Respondent violated the Act otherwise then as found herein. ' As noted In the Remedy section of this Decision. Respondent does not hase to offer relnslalement to dlscriminatee Mark \Mason hose hackps period is from Ocobher 2. 197. to Februair 20. 1978 -In the evenl that this Order is enforced hs a judgment of a I nited States ( Court of Appeals. the words in the notice reading "Posted kh Order of the National I.Labohr Relalions Board" snail read "Posted Pursuant to, a Judgment of the l nited States ( ourt of ASppeals Fnforcine an Order if the Natllonal I blor Relllllos Board" 799 Copy with citationCopy as parenthetical citation