Lord Jim's

National Labor Relations Board - Board Decisions

Jan 22, 1982

259 N.L.R.B. 1162 (N.L.R.B. 1982)

1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lord Jim's and Hotel & Restaurant Employees and thereof was served on Lord Jim's (herein called Re-
Bartenders Union, Local 2. Cases 20-CA-15570 spondent) on August 19, 1980. On November 10, 1980,
and 20-CA-15793 the Regional Director for Region 20 of the National
Labor Relations Board issued a complaint and notice of
January 22, 1982 hearing in Case 20-CA-15570 alleging that Respondent
DECISION AND ORDER violated Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, 29 U.S.C. Sec. 151, et seq.,
BY MEMBERS FANNING, JENKINS, AND herein called the Act. On November 18, 1980, the Union
ZIMMERMAN filed the charge in Case 20-CA-15793. Following inves-
tigation thereof, the Acting Regional Director issued a
On May 14, 1981, Administrative Law Judge Jay complaint and notice of hearing on December 17, 1980,
R. Pollack issued the attached Decision in this pro- alleging that Respondent violated Section 8(a)(3) and (I)
ceeding. Thereafter, the General Counsel and Re- of the Act. On that same date, the Acting Regional Di-
spondent filed exceptions and supporting briefs, rector ordered that the two cases be consolidated for
and Respondent filed cross-exceptions and an an- purposes of hearing.
swering brief.
Pursuant to the provisions of Section 3(b) of thee Issues
National Labor Relations Act, as amended, the Na- On March 9, 1981, the second day of the hearing, I
tional Labor Relations Board has delegated its au- granted Respondent's motion to dismiss the complaint al-
thority in this proceeding to a three-member panel. leging a violation of Section 8(a)(5) of the Act (Case 20-
The Board has considered the record and the at- CA-15570) on the ground that the General Counsel and
tached Decision in light of the exceptions and the Union had failed to prove a prima facie case. The
briefs and has decided to affirm the rulings, find- basis of that ruling will be set forth herein. The principal
ings,' and conclusions of the Administrative Law issues presented for decision in Case 20-CA-15793 are asings, t and conclusions of the Administrative Law
Judge and to adopt his recommended Order. follows:
1. Whether Respondent violated Section 8(a)(l) and
ORDER (3) of the Act by discharging its employee Regan Foiles
on October 21, 1980.
Pursuant to Section 10(c) of the National Labor 2. Whether Respondent violated Section 8(a)(l) of the
Relations Act, as amended, the National Labor Re- Act by interrogating Foiles regarding her union sympa-
lations Board adopts as its Order the recommended thies; by instructing Foiles to disassociate herself from
Order of the Administrative Law Judge and the Union; by creating the impression that Foiles' union
hereby orders that the Respondent, Lord Jim's, activities were under surveillance by Respondent; and by
San Francisco, California, its officers, agents, suc- threatening Foiles with physical harm because of her
cessors, and assigns, shall take the action set forth union sympathies.
in the said recommended Order.2 All parties were given full opportunity to appear, to
introduce relevant evidence, to examine and cross-exam-
Respondent has excepted to certain credibility findings made by the ine witnesses, to argue orally, and to file briefs. Upon the
Administrative Law Judge. It is the Board's established policy not to entire record, from my observation of the demeanor of
overrule an administrative law judge's resolutions with respect to credi- t wi a i i t i
bility unless the clear preponderance of all of the relevant evidence con- the witnesses, and having considered the post-hearing
vinces us that the resolutions are incorrect. Standard Dry Wall Products, briefs of the parties, I make the following:
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings FINDINGS OF FACT AND CONCLUSIONS
In adopting the conclusions of the Administrative Law Judge, we find
it unnecessary to rely on his discussion of Amoco Production Company,
239 NLRB 1195 (1979), in view of the lack of any evidence to show that I. JURISDICTION
anyone other than the members of Bartenders Local 41. which was only
one of the unions involved, was given any opportunity to vote on the Respondent is a sole proprietorship of Spiro Tampour-
merger antzis' engaged in the operation of a bar and cocktail
2 Member Jenkins would award interest on backpay in accordance lounge in San Francisco, California. In the course and
with his dissent in Olympic Medical Corporation. 250 NLRB 146 (1980). conduct of its business, Respondent annually derives
gross revenues in excess of $500,000 and annually pur-
DECISION chases directly from suppliers located outside the State
of California goods and materials valued in excess of
STATEMENT OF THE CASE $5000
JAY R. POLLACK, Administrative Law Judge: These Accordingly, Respondent admits and I find Respond-
consolidated cases were heard before me in San Francis- ent to be an employer engaged in commerce within the
co, California, on February 20 and March 9, 1981. The meaning of Section 2(2), (6), and (7) of the Act.
charge in Case 20-CA-15570 was filed by Hotel & Res-
taurant Employees and Bartenders Union, Local 2 ' The transcript contains various spellings of Tampourantzis' name.
herein called the Union) o August 18, The spelling used herein is that given by Tampourantzis on the witness(herein called te Union on August 18, 1980, and a copy stand.
259 NLRB No. 164

io l a t e d S e c t
io n ( ) (5) a nd ( 1) o f t h e N a t io n a l L a bo r
h e r e in c a l le d t h e A c t.
le d t h e
1)
f.
th e U nio n h a fa i le d t o c se .
b a s is o f t h a t w i be se t fo r t h
' t i ist tive i
s s ue s r t f r i i i ings, andconclsion f te dinistativ Law follows:
ge e . °
o s
3
il t i i t l fr
'

2
'Respondent
i i tr ti a J e. It is the oard's established policy not to entire record, fro y observation of the de eanor of
overrule an ad inistrative la judge's resolutions it respect to cre i- . ns n hi c d t post-hearing

t h e
Wit
,
. I
nmo
, 1
anyone other than the e bers of artenders ocal 41. hich as only ondent i a s r ro Tapor
IS S l i f r-
.
i l in r i , lif r i . In t c rse and
it i i t i l i i l r r ti . ( ). t it i , t a l ri
ir tl fr s li rs l cate tsi e t e tate
e5,r)
)
T he "tr"a"nipt
ll the i ) on ugust 18, 1980, and a copy L^"Tpelling used herein is that given by ranizis tnes
r fvy.
LORD JIM'S 1163
II. THE LABOR ORGANIZATION INVOLVED notice of the case of Karl Kahn, et. al. v. Hotel and Res-
The Union represents employees in the hotel and culi- taurant Employees etc., 469 F. Supp. 14 (N.D. Cal. 1977)
nary trades in dealing with their employers for purposes affd. per curiam 597 F.2d 1317 (9th Cir. 1979), in which
of collective bargaining. The Union is a labor organiza- the district court found that the instant merger was uni-
tion within the meaning of Section 2(5) of the Act. laterally ordered by the president of the Hotel and Res-
taurant Employees' and Bartenders' International Union
The Failure To Prove a Prima Facie 8(a)(5) and (1) and that there was no vote on the merger.
Violation In deciding whether a union is a successor to another
As discussed above, I granted Respondent's motion to union in any particular unit, the Board "looks to a
dismiss the complaint in Case 20-CA-15570 alleging a number of factors, including whether democratic proce-
violation of Section 8(a)(5) and (1) of the Act. In my dures have been followed in any vote on affiliation or
view, the General Counsel and the Union had failed to merger, whether the new organization has succeeded to
prove an essential element of a prima facie case. The rel- the assets and liabilities of the predecessor, whether the
evant complaint allegation reads as follows: employees in the bargaining unit have had an opportuni-
ty to register their desires, and whether there is a con-
Since an unknown date in the past, and at all tinuity in the leadership and representation of the em-
times material herein, the Union has been designat- ployees in the bargaining unit." See, e.g., Local 294, In-
ed exclusive collective-bargaining representative of ternational Brotherhood of Teamsters, Chauffeurs, Ware-
Respondent's employees in [an appropriate unit]. 2 housemen and Helpers of America (Gene Graham Ford,
. . . and since that time the Union has been recog- Inc.), 188 NLRB 515, 518 (1971). The Board has indicat-
nized as such representative by Respondent. Such ed that whether the employees in the unit have had an
recognition has been embodied in successive collec- opportunity to pass on the change of representative is
tive bargaining agreements, the most recent of "the primary concern" in such cases. Newspapers, Inc.,
which is effective by its terms for the period Octo- Publishers of the Austin American and the Austin States-
ber 7, 1973 to October 31, 1980. man, 210 NLRB 8, 9, fn. 4 (1974), affd. 515 F.2d 334
In support of this allegation, the General Counsel pre- (5th Cir. 1975). See also William B. Tanner Company
sented evidence that on October 7, 1973, Respondent en- (formerly Pepper & Tanner, Inc.), 212 NLRB 566, 567
tered into an agreement with six labor organizations 3 (1974), enforcement denied 517 F.2d 982 (6th Cir. 1975),
covering the terms and conditions of employment of its and Factory Services, Inc., 193 NLRB 722 (1971).
bartenders and cocktail waitresses. These six labor orga- In Jasper Seating Company, Inc., 231 NLRB 1025
nizations have ceased to exist. Prior to 1975, Waiters and (1977), the Board refused to find a successor union based
Dairy Lunchmen's Union No. 30 and Waitresses & Cafe- on the fact that nonmembers of the union were not given
teria Employees Union No. 48 merged into Dining an equal unqualified opportunity to participate in the af-
Room Employees Union, Local 9. In 1975, the remaining filiation vote. In Amoco Production Company, 239 NLRB
five labor organizations were merged into a single labor 1195 (1979), remanded 613 F.2d 107 (5th Cir. 1980), the
organization, the Union herein. The five labor organiza- Board overruled Jasper Seating stating:
tions went out of existence and a new labor organization,
the Union, was formed. Although not pleaded in the The fact that union merger or affiliation votes are
complaint, the General Counsel contends that the Union basically internal organizational matters, coupled
is a successor to the six contracting unions. Evidence with the employees' opportunity to exercise their
was presented that members of Bartenders, Local 41, right to choose whether to participate or to refrain
were given notice of and voted in an election relating to from engaging in concerted activity, persuades us to
the merger. There was no evidence that the employees find that union affiliation votes limited to union
of Respondent were members of Bartenders, Local 41, members are valid.
were given notice of the election, or voted in the elec-
tion. Further, there was no evidence that cocktail wait- An affiliation is the alignment or association of a
resses (the only other contract classification in which Re- union with a national or parent organization. An af-
spondent employed employees and who comprised half filiation does not create a new organization, nor
of the bargaining unit), whether union members or not, does it result in the dissolution of an already exist-
participated in any election relating to the merger. To ing organization.
the contrary, I was requested to take, and took, judicial
Thus, the Board expressly distinguished the creation of a
2 The appropriate unit alleged in the complaint is as follows: All em- new labor organization from an internal union matter
ployees employed by Respondent at 1500 Broadway, San Francisco, Cali- such as an affiliation vote.' Where a new labor organiza-
fornia, who are employed in the job classifications listed in the Independ- tion is formed and the existing bargaining representative
ent Restaurant & Tavern Agreement effective October 7. 1973: excluding
all other employees, guards and supervisors as defined in the National is dissolved, the rights of all unit employees and not just
Labor Relations Act union members are affected. Such a change goes beyond
The six unions were waiters and Dairy Lunchmen's Union No. 30; internal matters and affects representative status. See,
Waitresses & Cafeteria Employees Union No. 48; Bartenders, Local 41;
Cooks, Pastry Cooks and Assistants Union, Local 44; Miscellaneous Culi- e.g., Independent Drug Store Owners of Santa Clara
nary Employees Union. Local 110; and Hotel. Motel. Club and Service
Workers Union. Local 283 ' See also then Member Truesdale's concurring opinion at 119b.
l
l li
ta u r a n t l ye . t ., . . 14 ( . . al. 1977),
li i
a f . u r ia m 597 F .2d 3 17
( 9t h ir. 19 79 ) , in w h ic h
l i i i i l i
t h e d is t r ic t c o u r t f o u n d th a t t e in st an t er er
w as uni-
i ti i l
l
i i a ie
i i r
u n i o n in P rti l r it, t e ar "l s to a
n u m b e r o f f a c to r s n c l u d w h e t h e r

d u r e s h a v e b e e n f ll i te affiliati or
t i ti to
t h e a ss e t s a n d li iliti f t r r, t r t e
-
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fi t t i ffili ti t li it t i
t , l 41, e bers are valid.
i i ti
t tr r , I r t t t , t , j i i l
_______~~~~~~~~~~~~Thus, i
I
.
f r i , are e ployed in the job classifications listed in the Independ- tion is for ed and the existing bargaining representative
. ;
l ll U i
.
I si i r aiters a air c e 's nion o. 30; i ter al atters and affects representative status. See,
tres ;i j . Dr s S r r r . /-*
. . *g. e t rs t ra
,
r r i . l . ' l t l ' i i i t .
r h as i

1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
County, 211 NLRB 701 (1974), enfd. 528 F.2d 1225 (9th "with the Union." 7 in mid-October, Foiles had a similar
Cir. 1975). conversation with Rhonda Riley, a cocktail waitress and
In Amoco, the Board restated the principle that affili- friend of Tampourantzis.5 Shortly after her conversation
ation procedures must meet due process requirements; with Riley, on October 16, Foiles was questioned by
for example, proper notice to all members, an orderly Tampourantzis concerning the Union. Tampourantzis,
vote, and some reasonable precautions to maintain the se- who was talking to Riley, called Foiles over to him and
crecy of the ballot. In the instant case, the merger or- asked her how she voted in the union election. Foiles
dered by the president of the International Union does asked if there had been an election and Tampourantzis
not meet those requirements. Further, the only evidence answered asking Foiles how she would vote if there was
of an election showed that members of the Bartenders an election. Foiles then asked Tampourantzis if there was
Union voted in favor of the merger. There was no evi- going to be an election. Tampourantzis said there had al-
dence that members of the other labor organizations ready been an election and told Foiles to keep out of the
voted in any election. Thus, even if an election limited to Union and to "keep away from the whole thing." Tam-
union members were sufficient, there would be insuffi- pourantzis was not questioned about this conversation
cient evidence in this case to find proper successorship. and Riley did not remember the conversation. As indi-
The General Counsel and the Union have failed to cated above, Foiles' testimony is credited.
prove by any other means that Respondent was obligat- I find that Tampourantzis' questioning of Foiles tended
ed to bargain with the Union. In his post-hearing brief, to convey displeasure with union activity and thereby
the General Counsel contends that Respondent has rec- tended to discourage such activity. See PPG Industries,
ognized the Union and complied to some extent with the Inc., Lexington Plant, Fiber Glass Division, 251 NLRB
1973 collective-bargaining agreement. However, no evi- 1146 (1980). Accordingly, I find that Respondent violat-
dence in support of this contention was offered. Evi- ed Section 8(a)(1) of the Act. Further, Tampourantzis'
dence was presented that in 1977 the trust funds 5 instruction to Foiles not to have anything to do with the
brought suit against Respondent seeking payment pursu- Union unlawfully restricted Foiles' union activities and,
ant to the provisions of the 1973 bargaining agreement therefore, violated Section 8(a)(l) of the Act. Interstate
In that suit, a settlement was reached by the assignee of Transport/Security Division of PJR Enterprises, Inc., 240
the trust funds and Respondent. That evidence was pre- NLRB 274 (1979).
sented with the express purpose of showing attempts by On October 21, Foiles, who was not working that day,
the Union to enforce the agreement and, therefore, that went into Respondent's bar to use the pay telephone.
the Union had not abandoned its representative status. Tampourantzis approached Foiles and told her that she
However, the settlement was not offered and could not had betrayed him Tampourantzis alo aid that Foiles
be used as an admission that Respondent had recognized had gotten him in trouble with the Union. He then told
the Union or an admission that Respondent had a bar- Foiles that she was fired and that he did not want her in
gaining agreement with the Union. See Federal Rules of the bar any more. Tampourantzis said he felt like hitting
Evidence, Rule 408. .her and that he should slap her face. Foiles said she
Accordingly, for the failure to prove a prima facie would talk to him again, when he was sober. Tampour-
case, the recommended Order will provide for dismissal wu t to h , w h wa s T o, t r r ill i f r i i l antzis again told Foiles to leave the bar. Foiles then left
of the complaint in Case 20-CA-15570. the bar and went home.9
Mll. THE ALLEGED UNFAIR LABOR PRACTICES IN CASE Tampourantzis testified that he had been at the bar for
20-CA-15793 a day and a half prior to this incident. However, at the
Regan Foiles first worked for Respondent as a cocktail ' At the time of this conversation, the charge in Case 20-CA-15570
waitress in 1974. She was fired in 1974 and rehired 2 was pending but the complaint had not yet issued. On August 6, Re-
years later. Thereafter, Foiles, a student, worked for Re- spondent filed a petition in Case 20-RM-2319 seeking a Board-conducted
election to resolve the question of union representation. On November 5,
spondent from time to time amounting to 4 or 5 months the Regional Director dismissed the petition based on the complaint in
a year. Foiles voluntarily quit on these occasions and Case 20-CA-15570. On December 29, the Board reversed the Regional
was always permitted to return when she needed work. Director and reinstated the petition in Case 20-RM-2319
In early September 1980,6 Foiles returned to work for ' Foiles testified in a candid and straightforward manner and, therefore,
her testimony is credited. Riley testified that she did not recall this con-
Respondent as a cocktail waitress. Her regularly sched- versation, but did not deny that the conversation occurred.
uled hours were 10 a.m. to 6 p.m., Saturdays and Sun- 9 Tom Glendenning, employed by Respondent as a bartender, was
days. Foiles also worked as a fill-in for I weekday each present during this conversation At the hearing, counsel for the General
week. Counsel represented that he had subpenaed Glendenning but that Glen-
denning had failed to appear to testify. Respondent, concurrent with its
Foiles was not a member of the Union. She testified post-trial brief, moved to strike, inter alia, these representations on the
that in early October she had a conversation with a bar- ground that proof of service was not established. Further, Respondent
tender in which she suggested that the employees would moved that I draw an adverse inference against the General Counsel for
have better working conditions and more job not calling Glendenning to corroborate Foiles' testimony.
have better working con nsecurity Glendenning, apparently still employed by Respondent, was equally
available to Respondent to refute Foiles' testimony as he was to the Gen-
5 San Francisco Culinary. Bartenders and Service Employees Welfare eral Counsel to corroborate it, but Respondent also failed to call him as a
Fund and San Francisco Culinary, Bartenders and Service Employees witness. Under such circumstances, no inference should be drawn. See
Pension Plan. Local 259. United Automobile. Aerospace, and Agricultural Implement
' Unless otherwise stated, all dates hereinafter refer to calendar year Workers of Ameria (Atherton Cadillac. Inc.), 225 NLRB 421. 422, fn. 3
1980. (1976).
),
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t i as pre- 274 (1979).
i , il
t i t f t t , ' .
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i i t i l t e
t i r i i t t t i
i i r t it t i . l l . t i i l li i i
. t t l l r f c . il said she
i l , f ^ ^ ^ ^ , ^^ ^ ^ ^^
case, t r ill i i i l ^, oul al i agi, he e s oer aofse the rcomplaint in Case 20-CAdefor 15570.a antzis again told Foiles to leave the bar. Foiles then left
of the complaint in Case 20-CA-15570. the bar and went home.'
I. ti
a a n a i t o t s

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o n d e nt fi led a pe ase 2
3 19 a
l ti l ti nt ti .
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mo v ed th at d r aw a n
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have better working conditions and re j security "not lli
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have better working conditions a d more jobsecurity l i r ntl til l t, ll
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Am
LORD JIM'S 1165
time of the incident, Tampourantzis was suffering from them." No evidence was offered that Foiles had ever
insufficient sleep and too much drink. For these reasons, broken a rule before. Foiles had never received a warn-
Tampourantzis' was unable to recall what he said while ing or reprimand during her employment with Respond-
discharging Foiles. However, while testifying, Tampour- ent. Further, from the credited testimony of Foiles and
antzis' moved his arms in such a manner as to confirm Riley it appears that Tampourantzis knew that Betty was
the threatening manner described by Foiles in her testi- the same waitress who Foiles had called in to work as
mony. Foiles' testimony regarding this incident is cred- her relief. Thus, Tampourantzis knew that Foiles had a
ited. legitimate reason for talking to Betty. Foiles credibly tes-
I find that Tampourantzis remarks in discharging tified that Tampourantzis was present in the bar during
Foiles created the impression of surveillance of employ- this conversation. 2 Finally, while Tampourantzis testi-
ees' union-related conversations and/or other union ac- fied that he investigates complaints against employees to
tivities. Accordingly, I find that Respondent violated ascertain whether the complaints are true, he took no
Section 8(a)(1) of the Act. Further, Tampourantzis' such action with respect to Foiles. Tampourantzis did
threatening statements, in the presence of employee not question either Foiles or Riley about this incident.
Glendenning, tended to threaten employees that Re- The critical issue herein is Respondent's motive for
spondent would resort to force to halt union activities discharging Foiles. Accordingly, the General Counsel
among its employees. By such conduct, Respondent vio- must first make a prima facie showing sufficient to sup-
lated Section 8(a)(l) of the Act. port the inference that an intent to discourage union
Respondent's defense is that it discharged Foiles be- membership was a "motivating factor" in Respondent's
cause, during the week prior to her discharge, Foiles decision. Upon such a showing, the burden shifts to Re-
spent 10 minutes talking to another employee, leaving spondent to demonstrate that the same action would
Riley to wait on all the customers. On the evening in have taken place even in the absence of such an intent.
question, Foiles, believing that no waitress was sched- See Wright Line, a Division of Wright Line, Inc., 251
uled to relieve her, called a waitress named Betty to NLRB 1083 (1980)
work as her relief. Unbeknownst to Foiles, Tampourant- Clearly, the General Counsel has established a prima
zis had called another waitress to work that shift. Foiles facie case. On October 16, Foiles was instructed not to
was directed by Tampourantzis to tell Betty that she have anything to do with the Union. On October 21, she
could not work. Thus, when Betty arrived, Foiles told was told that she had betrayed Respondent and gotten
her that she could not work and would not be paid Tampourantzis in trouble with the Union. She was
showup time. Understandably, Betty was upset and threatened with physical harm and discharged. The only
Foiles tried to explain the mixup to her. At the tail end conclusion to be drawn from such circumstances is that
of this conversation Foiles suggested that, if the employ- Foiles was discharged for her union sympathies It is no
ees were represented by the Union, Betty would have defense that Foiles did not join the Union or engage in
been paid showup time. union activities of any substance. It is violative of Sec-
Riley testified that Foiles, who was normally a very tion 8(a)(3) of the Act to discharge an employee in order
good employee, was talking with Betty for 10 minutes, to prevent or discourage such activities
while Riley had to wait on Foiles' customers. ° Riley Resnent hs fed to ret ts p a fe ce
was.displeased thi fat an Respondent has failed to rebut this prima facie case.was displeased by this fact and mentioned it to herwas displeased t is fact ti it The evidence presented in Respondent's defense estab-
friend, Susan O'Neil, who was also a close friend of T h e ev l d en c e p^ 'ed *" Respondents defense estab-frie , usan ' eil, as als a cl se frie f lishes that, upon hearing that Foiles discussed the Union
Tampourantzis. Riley testified that on October 18 she with Betty Tampourantzis decided to terminate Foiles.
had drinks with O'Neil and at that time mentioned that h Tamouatis d t temate Fo les
Foiles had been talking to Betty about the Union, while He had known that Foles had a legitimate reaaon to talk
Riley had to wait on her customers. O'Neil testified that to Betty about the scheduling mixu that evening. I
on October 19 she repeated this conversation to Tam- fact, Tampourantzis had told Foiles to inform Betty that
pourantzis. O'Neil testified that she told Tampourantzis she (Betty) was not needed that evening. Thus, all Tam-
that Foiles had talked to Betty about the Union, while pourantzis learned from O'Neil was that Foiles discussed
Riley had to wait on Foiles' customers. Tampourantzis the Union with Betty. In discharging Foiles, Tampour-
denied that O'Neil mentioned the Union to him. Tam- antzis made no reference to the alleged reason for the
pourantzis' denial is not credited. discharge to any other work transgression. He only said
Tampourantzis testified that, after he learned that that Foiles had betrayed him and gotten him i trouble
Foiles was talking instead of working he decided to fire wit h t h e Unon. F u r t h e r, n o opportunity to explain the
her. He fired Foiles on October 21, the first time he saw n c d e n t w a s a ffo rd e d F o l e s , spite o f Tampourantzis'
her after that decision. As discussed above, he was not alleged practice of giving employees such opportunities
able to recall the conversation and Foiles' version of the prior to discharging them. Finally, there was no evi-
discharge is credited. Tampourantzis testified that he has dence tht Foiles had ever before violated any of Re-
fired many other employees for breaking rules. However, spondent's rules. According to Tampourantzis, he gave
he said he gave employees many chances and that it was
only after they continued to break his rules that he fired ten chTapouances He also testified that he red employees after he gave them"ten chances." He also testified that he gave some employees "twenty
chances." He did not deny Foiles' testimony that she was never warned
'I Riley testified that, except for the evening in question, Foiles or reprimanded during her employment with Respondent.
"always worked, she never used to fool around or talk to customers " Riley's testimony to the contrary. that Tampourantzis had left the
when she was working." bar momentarily. is not credited
l 2
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(l)
i t
it ett to L 1083 (1980).
li t il r l l t li i
l tr if . , il i t t
ir t r t i t t ll tt t t t i t it t i . ,
l t , i , il l t t t t
r t t l t r l t i r t i i t l i t i
ti . t bly, tt t t r t it i l r i r . l
il tri t l i t i t r. t t t il l i t f i t i t t
f t i r ti il t t t, if t l - i r f r r i t i . It i
r r r t t i , tt l il i t j i t i r i
been~ ~ ~ ~ ~ ~ ~ ~ ~ ~~~~ees paid showup time. .... joi , h .no ,r .nag . .
ee i s ti e. i ti iti f t . It is i l ti f c-
il t tifi t t il , r ll i l
l l i i i t i ti i i .
il il t it il ' st rs.10 il f t r t f ase.
,., ., rr , * .1. i. ~~~~~Respondent t i f
s i l
l l fri f T h e
ev l d en c e Presented *" Respondent's defense estab-
fried, Ssan 'Nei, wh wa als a cose rien of lishes that, upon hearing that Foiles discussed the Union
r t i . il t tifi t t t r it at, uponha tzat Foi ed t he nion
il wH t B etknw ampouran zis decide o r inate tl k
il t l i t tt t t i , il tH e h a d kn o w n th at sles l iti t r v t t lk
il t it r t r . ' il t tifi t t t ofact, a bo u t zhe ha ldi i p t t i . In
on ctober 19 she repeated this conversation to Tam- fact, Tampourantzos had told Foiles to inform Betty that
r tzis. ' il t stifi that she t l r tzisl s h e ( etty) as not needed that evening. Thus, all Ta -
that Foiles had talked to Betty about the Union, while phantzis learned from t Neil was that Foiles discussed
il had to it on oiles' custo ers. r tzis ahe i it etty. In isc r i orles, a pour-
il an tz ls m ad e ° ll t
i l i l i
ti t t il tr i tt i in tr l
l i i i
t the i . Further, no rt it t l i t
r i i
t s ff r il es , in s it o f r t i '
i i . t ll ti
o f i i l s c rt iti
ll ti i i i r i t . i ll , t r i-
i ti d
e n c e t at il r f r i l t y f -
r i t' r l . r i t r t i , v
s i e l s s t t it as-------
l ft t ti t r i r les t at he fired .. ' ^ w^ Tapornli tetie thth ^ ^^mlye ferh aetonly fterthey ontiued o brek hi ruls tha ir t . l t tifi t t l
'
0
.
' ,
.
r .'
mn
toheduling
Pourantzi 0d
lh oing t ftup
o l
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees "five, ten or twenty chances" before ORDER 13
firing them. _,, _The Respondent, Lord Jim's, San Francisco, Califor-
In sum, I find that Foiles' union sympathies were a successors, and assigns, shall:
"motivating factor" in Respondent's decision to fire her i Cease and desist froms
and that Respondent's defense was not a true reason for r d .
(a) Questioning employees concerning their union ac-firing Foiles. A fortiori, Respondent has failed to establish ( esion mpl es.,.".,' ~ - . , .~ .tivities or union sympathies.that Foiles would have been discharged in the absence of i i mp e
her union sympathies. Therefore, I find that Respondent (b) Directl ng empa ees to disassociate themselves
from Hotel & Restaurant Employees and Bartendershas violated Section 8(a)(3) and (1) of the Act by dis-
has violated Section 8(a)(3) and (1) of the Act by dise Union, Local 2, or any other labor organization.
charging Foiles for such unlawful motive. , l .(c) Creating the impression of surveillance of its em-
CONCLUSIONS OF LAW ployees' union conversations or union activities.
(d) Threatening employees with physical harm because
1. Respondent is an employer engaged in commerce of their union activities or union sympathies.
within the meaning of Section 2(2), (6), and (7) of the (e) Discharging employees in order to discourage
Act. membership in or activities on behalf of the Union or
2. The Union is a labor organization within the mean- any other labor organization.
ing of Section 2(5) of the Act. (f) In any like or related manner interfering with, re-
3. Respondent has engaged in unfair labor practices in straining, or coercing employees in the exercise of the
violation of Section 8(a)(l) of the Act by questioning an rights guaranteed them by Section 7 of the Act.
employee about her union sympathies; by directing an 2. Take the following affirmative action which is nec-
employee to disassociate herself from the Union; by cre- essary to effectuate the purpose of the Act:
ating the impression of surveillance of its employees' (a) Offer to reinstate Regan Foiles to her former posi-
union conversations and activities; and by threatening an tion of employment or, if that position no longer exists,
employee with physical harm because of her union activ- to a substantially equivalent position, without prejudice
ities or union sympathies. to her seniority or other rights and privileges, and make
4. Respondent has engaged in unfair labor practices in her whole for any loss of pay and benefits she may have
violation of Section 8(a)(3) and (1) of the Act by unlaw- suffered as a result of the discrimination against her, in
fully discharging Regan Foiles in order to discourage the manner set forth above in the section of this Decision
union activities among its employees. entitled "The Remedy."
5. The unfair labor practices specifically found above (b) Preserve and, upon request, make available to the
are unfair labor practices affecting commerce within the Board or its agents, for examination and copying, all
meaning of Section 2(6) and (7) of the Act. payroll records, social security payment records, time-
6. Respondent has not engaged in unfair labor prac- cards, personnel records and reports, and all other re-
tices in violation of Section 8(a)(5) of the Act as alleged cords necessary to analyze the amount of backpay due
in the complaint in Case 20-CA-15570. under the terms of this Order.
(c) Post at its San Francisco, California, facilities
THE REMEDY copies of the attached notice marked "Appendix."' 4
Having found that Respondent engaged in certain Copies of said notice, on forms provided by the Regional
unfair labor practices, I shall recommend that it cease Director for Region 20, after being duly signed by Re-
and desist therefrom and take certain affirmative action spondent's authorized representative shall be posted by
Respondent immediately upon receipt thereof, and be
designed to effectuate the purposes of the Act. maintained by it for 60 consecutive days thereafter, in
Respondent shall be required to offer Regan Foiles re-Respondent shall be required to offer Regan Foiles re- conspicuous places, including all places where notices to
instatement to her former position of employment or, if employees are customarily posted. Reasonable steps shall
that position no longer exists, to a substantially equiva- be taken by Respondent to insure that said notices are
lent position, without prejudice to her seniority or other not altered, defaced, or covered by any other material.
rights and privileges. Respondent shall be required to (d) Notify the Regional Director for Region 20, in
make Foiles whole for any loss of earnings she may have writing, within 20 days from the date of this Order, what
suffered by reason of her unlawful termination, with steps Respondent has taken to comply herewith.
backpay to be computed on a quarterly basis, making de-
ductions for interim earnings, F. W. Woolworth Company, 3 All outstanding motions inconsistent with this recommended Order
90 NLRB 289 (1950), with interest to be computed in the hereby are denied. In the event no exceptions are filed as provided by
manner prescribed in Florida Steel Corporation, 231 Sec. 102.46 of the Rules and Regulations of the National Labor Relations
NRLB 651 (1977). See, geneall, Isis Plu g H - Board, the findings, conclusions, and recommended Order herein shall, as
NRLB 651 (1977). See, generally, Isis Plumbing & Heat- provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
ing Co., 138 NLRB 716 (1962). Board and become its findings, conclusions, and Order, and all objections
Upon the foregoing findings of fact, conclusions of thereto shall be deemed waived for all purposes.
' In the event that this Order is enforced by a Judgment of a United
law, and the entire record, and pursuant to Section 10(c) States Court of Appeals, the words in the notice reading "Posted by
of the act, I hereby issue the following recommended: Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
'
firing the . _ , , _ The espondent, ord Ji 's, an rancisco, alifor-
, I i ' n i r
f t r i s t's decision to fire her 1. Cease and desist from:
t t t' f t ( Q u
r * c i A * * D i . i e -i i . .i-r i a i i . f tiorn t o u s p i
.,."., -. , * ,. . .. . ,~tivities
t t il s l i r i t _b D e to d tml
r i t i . r f r , I fi t t t fro DH r e c tl n g em ps a mees t o i ci t t l
s i l t ti ( )( ) ( ) t t i - Uno n Lo cal 2 orrant loreesganizati en.
. . r- -i r i. ! e i .*~~~~Union, ,
. , . ,. . , .
.
)
c t .
.

.
off

.
)
.
. "
Having found that espondent e a e i rt i i i l
f i i I ll r c that it ceasei Director for Region 20, after being duly signed by Re-
i t t rt i affir ative action spondent'
s authorized representative, shall be posted by
anddesigne therefrectuan take cerposes affirmative a n ARespondent i t l i f
designed to effectuate the purposes of the Act. aintained by it for 60 consecutive days thereafter, in
t s ll be r ir t ff r il r - i l i l i ll
i t t t t iti l t ril l l
t t iti l r i t , t tantially i - t t t i r t t i ti
l t iti , it t r j i t r i rit r t r t lt , f , ri l
ri t i ile . t ll i ti i l i
il l f r l f r i iti , it i f t t i
ff r l f l i ti i t l i
rt rl i , i -
. . , 13 ll tsta i ti s inconsistent ith this reco ended rder
, Wit r

ec , 10 2 46 o f th e a nd
MOIB n51 <;< liafl\ c< . ,, all., l,; DI l „ eAr u , , ( ). ing <& t-
'ter ll .
law, an the etire reord, ad pursunt to ection 0(c) 4In the event that this Order is enforced by a Judgment or a Unitedti t ti (c)^States rt f ppeals, the ords in the notice reading "Posted by

taor ant
f. Ar-
"
R u l
LORD JIM'S 1167
IT IS FURTHER ORDERED that the complaint in Case WE WILL NOT direct employees to disassociate
20-CA-15570 be dismissed in its entirety. themselves from Hotel & Restaurant Employees and
Bartenders Union, Local 2, or any other labor orga-
APPENDIX nization.
NOTICE To EMPLOYEES WE WILL NOT create the impression of surveil-
POSTED BY ORDER OF THE lance of our employees' union conversations or
NATIONAL LABOR RELATIONS BOARD union activities.
An Agency of the United States Government WE WILL NOT threaten employees with physical
harm because of their union activities or union sym-
After a hearing at which all sides had an opportunity to pathies.
present evidence and state their positions, the National WE WILL NOT discharge employees in order to
Labor Relations Board found that we have violated the discourage membership in or activities on behalf of
National Labor Relations Act, as amended, and has or- the Union or any other labor oraganization.
dered us to post this notice. WE WILL NOT in any like or related manner in-
The Act gives employees the following rights: terfere with, restrain, or coerce you in the exercise
of the rights guaranteed you by Section 7 of the
To engage in self-organization Act.
To form, join, or assist any union WE WILL offer to reinstate Regan Foiles to her
To bargain collectively through representa- former position of employment or, if that position
tives of their own choice no longer exists, to a substantially equivalent posi-
To engage in activities together for the pur- tion, without prejudice to her seniority or other
pose of collective bargaining or other mutual aid rights and privileges, and WE WILL make whole
or protection Foiles for any loss of earnings she may have suf-
To refrain from the exercise of any or all suchTo refrain from the exercise of any or all such fered by reason of our discrimination against her,
activities. ~~~~~~~~~activities. ~plu interest.
WE WILL NOT question employees concerning
their union activities or union sympathies. LORD JIM'S
I
,
,

W E W I L L N OT c r e a t e t h e

n

i ti , j i t ni rit t
f ll ti i i t l i i i ile , l
il f r l r i s s f-
i f by rs o ou d a her,... - ~~~~~~~~~~fered by reason of our discri ination against her, .. e*
plus interest.
.
PPF nI * }B