Poor Richard's PubDownload PDFNational Labor Relations Board - Board DecisionsOct 17, 1975220 N.L.R.B. 1363 (N.L.R.B. 1975) Copy Citation POOR RICHARD'S PUB Poor Richard's Pub-A California Corporation and Culinary Alliance and Bartenders Union Local 498 and Culinary Alliance and Bartenders of Santa Barbara and Ventura County, Local 498, affiliated with Hotel and Restaurant Employees and Barten- ders International Union, AFL-CIO, Petitioner. Cases 31-CA-4371 and 31-RC-2736 October 17, 1975 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION By MEMBERS FANNING, JENKINS, AND PENELLO On March 26, 1975, the Board issued a Decision and Order I in this case in which it found that it would assert jurisdiction over Respondent, and or- dered the case remanded to Administrative Law Judge James T. Rasbury for such further action as was required in light of the Board's assertion of juris- diction, including the issuance of a decision on the merits of the complaint. On May 23, 1975, the Ad- ministrative Law Judge issued the attached Supple- mental Decision. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in opposition to Respondent's exceptions. 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 Supplemental Decision in light of the excep- tions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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, Poor Richard's Pub-A California Corporation, Santa Barbara, California, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. DIRECTION It is hereby directed that Case 31-RC-2736 be re- manded to the Regional Director for Region 31 who shall, pursuant to the Rules and Regulations of the Board and within 10 days of the date of this Supple- 1363 mental Decision open and count the ballots of Liza- beth Kaska, Gael Menze, Shelagh Hill, Gayle Nagy, Judith Weldon, David Anglin, Chris Brady, Tim Bra- dy, Janice Crampton, Mary C. Giles, Susan Glo- bisch, Bill McDonough, Jacob Michel, Susan Marat- ti, Sydney Moseley, Kevin Quirk, Craig Toms, Sydney Berg, Lorraine Phillips, Karen Longford, and Patricia MacAfee, and thereafter issue and serve on the parties a revised tally of ballots. In the event that the results as shown by the revised tally, including the above ballots, are determinative of the election, the Regional Director shall issue the appropriate cer- tification. IT IS FURTHER DIRECTED that, if the challenge to the ballot of Mary Nolan becomes determinative of the election, the Regional Director conduct a further in- vestigation into any relevant factors necessary to re- solve the status of her ballot. IT IS FURTHER DIRECTED that Case 12-RC-2736 be, and it hereby is, referred to the Regional Director for Region 31 for further proceedings pursuant hereto. 217 NLRB No 24 SUPPLEMENTAL DECISION STATEMENT OF THE CASE JAMES T. RASBURY , Administrative Law Judge: These consolidated cases were heard by me in Santa Barbara, California, on September 3, 4, and 5, 1974. In my Decision dated November 14, 1974, I ordered the unfair labor prac- tice complaint dismissed on the theory that the Board would not assert jurisdiction in a case where an employer does not meet the Board 's discretionary jurisdictional stan- dards at the time the alleged unfair labor practices oc- curred even though within the 10 (b) period from the time the charge was filed the employer's business had expanded sufficiently to meet the required standard.' Resolution of the voting rights of the challenged ballots in Case 31-RC-2736 was made in a manner consistent with dis- missal of the unfair labor practice complaint . The Board in its Decision dated March 26, 1975,2 was of the opinion that Furusato, supra, was readily distinguishable and based on N.L.R.B v Guernsey- Muskingum Electric Cooperative, Inc., 285 F.2d 8 (C.A. 6, 1960), concluded that it was appropri- ate to assert jurisdiction and remanded the case to this Administrative Law Judge for a more complete consider- ation of the unfair labor practices alleged. It follows that the resolution of the voting rights of the challenged ballots must be reconsidered and resolved in a manner consistent with the final resolution of the complaint in Case 31-CA-4371. On January 31, 1975, while the above-captioned matter Citing Furusato Hawaii , Ltd, 192 NLRB 105 (1971) 1217 NLRB No 24 (1975) 220 NLRB No. 215 1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was pending before the National Labor Relations Board, counsel for the General Counsel filed with the Board a motion to amend complaint , reopen record , and remand for further hearing Alternatively , the General Counsel filed a motion to reopen the record , consolidate Case 31-CA-4980, and remand for further hearing These mo- tions were also remanded to the Administrative Law Judge for disposition On April 1 , 1975, counsel for the General Counsel moved to withdraw the previously filed motions and, when neither counsel for Respondent nor the Charg- ing Party opposed the General Counsel 's motion to with- draw, it was , by order of this Administrative Law Judge dated April 14, 1975, granted Upon the entire record and from my observation of the demeanor of the witnesses , I hereby make the following FINDINGS OF FACT I THE ISSUES 1 What were the motivating forces causing the Respon- dent to discharge Kaska, Menze, Hill, Nagy, and Weldon9 2 What precipitated the strike which commenced on January 22, 19749 (Was it an economic strike or an unfair labor practice strike") 3 Did Respondent illegally promulgate a no-solicitation rule9 4 What are the voting rights of each of the 35 chal- lenged voters who voted in the election conducted May 2, 1974, among Respondent's employees (Case 31-RC-2736)9 II JURISDICTION Respondent, a California corporation, is engaged in the business of operating two restaurants The concern here is known as Squire Richard's Pub and is located in Santa Barbara, California The other is located in Woodland Hills, a suburban area of Los Angeles, California Respon- dent is principally owned by Richard Headley and Loretta Headley, husband and wife, although there are a number of other small interest owners Respondent and Charging Party entered into a stipulation for consent election agree- ment in Case 31-RC-2736 on April 16, 1974, stipulating, inter alia, that the combined gross volume of business of the two restaurants exceeded the Board's discretionary ju- risdictional standards of $500,000 gross business Under these circumstances and for the reasons delineated in the remand, the Board has concluded that it is appropriate to assert jurisdiction III THE LABOR ORGANIZATION INVOLVED The Culinary Alliance and Bartenders of Santa Barbara and Ventura County, Local 498, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act 3 Her nickname was Poppet and there are frequent references in the Iran script to Poppet Hill IV THE ALLEGED UNFAIR LABOR PRACTICES A The Discharges Richard Headley actively participated in the manage- ment of the Respondent's Santa Barbara restaurant from the day it first opened until the early summer of 1973 Beginning in May 1973, Richard Headley spent most of his time supervising the construction of a similar restaurant located in the Woodland Hills area near Los Angeles, Cali- fornia During Richard Headley's absence from the Santa Barbara restaurant, the only location involved in this dis- pute, the profit-and-loss statement took a definite down- turn and in October registered a substantial loss At that time, Loretta Headley assumed an active role in the man- agement of the Santa Barbara restaurant Shelagh Hi113 was employed in May 1971 and was serv- ing as head waitress in the fall of 1973 Part of Shelagh Hill's duties as head waitress had been the preparation of the weekly work schedules for the waitresses ° However, in the summer of 1973, that system was changed to a straight rotation of schedules Under the rotating system, Shelagh Hill's only responsibility with the scheduling was to make sure it was posted so that all employees could refer to it and in the event a banquet was scheduled, she would make certain that at least one waitress was available to take care of the banquet The latter part of December 1973, the man- ner of scheduling was again changed and Mrs Headley's daughter, Lon, was given more of the night and weekend shifts (the most lucrative from the standpoint of tips) Two of the waitresses, Lizabeth Kaska and Mary K Giles, re- ceived fewer evening assignments than had been the cus- tom On December 20, Shelagh Hill questioned Mrs Head- ley regarding the schedule to be worked the week of December 24, because the hours were not evenly distribut- ed among the girls At that time, Mrs Headley indicated she was not going to change the schedule The matter of the schedule was raised again on December 22 with Mrs Headley, and again she refused to change the schedule Later that same evening, Shelagh Hill, accompanied by Gael Menze and Jan Crampton, asked Mr Headley if he would discuss the matter with them On this occasion, ac- cording to the testimony of Shelagh Hill, whom I fully credit, Shelagh pointed out the inequities of the schedule and how it could be easily changed to provide for an even distribution of the work Mr Headley was agreeable to the changes and felt that they would be desirable, however, Mrs Headley entered the office and abruptly vetoed any changes in the schedule which she had prepared The meet- ing came to a quick termination A meeting of several employees was held at Hill' s house on the morning of December 24, to consider their com- plaints with the management This meeting concluded with Respondent asserts that Shelagh Hill is a supervisor under the Act I do not find her to be a supervisor At most she is only a leadwoman paid a few cents higher wage because of her experience and a few extra duties she performed in leading the other girls Her authority to recommend new employees was no more than that of any other employee who might men tion to management that he or she knew of someone looking for work POOR RICHARD'S PUB 1365 a petition being drafted and signed by all employees pre- sent (see G C Exh 3) which was presented to Mr Headley The petition asked to have the schedule changed, an op- portunity for the employees to "air" their grievances with management and a request that there be no retribution taken against those employees who had participated in the signing of the grievance petition The petition was present- ed and, according to the credited testimony, there ap- peared to have been some sympathy for the employees ex- pressed by Mr Headley, but Mrs Headley prevented anything from being changed and prevented Mr Headley from signing any agreement to refrain from adverse action against the petitioners On that same day, Shelagh Hill contacted an attorney from the Legal Collective named Warren Adler Adler sug- gested that it might be a good idea if all of the employees got together to ascertain if they were interested in forming a collective-bargaining unit There followed three or four meetings which were held at the homes of Kaska and Hill These employee meetings resulted in the preparation of a petition by the attorney, Warren Adler, requesting that the Respondent recognize and bargain with the employees through the Santa Barbara Workers' Union (see G C Exh 4) Warren Adler testified that he presented the petition to Mr and Mrs Headley on the evening of January 6, 1974, at which time Mr Headley indicated that he would have to consult with his attorney The parties stipulated that an election petition was filed with Region 31 in Case 31-RC-2660, on the morning of January 8, 1974 5 On January 7, 1974, Shelagh Hill received a written rep- nmand for "clocking in before scheduled to work on the following dates Friday, December 28, Thursday, January 3, and Friday, January 4" (see G C Exh 5) Proof that there had ever been instructions, either oral or in writing, against clocking in early was lacking Miss Hill testified that she had never received a written warning for any rea- son before and she had never known of any other employ- ee to receive a written warning Miss Hill was not sched- uled to work on January 8, but when she reported for work on January 9, she was unable to find her timecard and upon checking with Mrs Headley she was advised that she was being discharged for "failure to do your duties as head waitress" The payroll record stub (G C Exh 6), which Shelagh Hill received at the time of her actual termination on January 9, was dated January 8 This would tend to indicate that the decision had been made to terminate Miss Hill on January 8, 1974, at a time when she was not at work If there was merit in the reason advanced, why was it not included in the warning received on the last day worked9 On January 7, Gael Menze, who had been employed at the restaurant since February 1972, received a written warning advising that her work habits and general attitude had been found unsatisfactory Gael Menze had partici- pated in all of the employee meetings and had signed the 5 The record is not complete as to the exact disposition of this case but presumably it was withdrawn at the time the petition in Case 31-RC-2678 was filed In any event knowledge of its disposition is not necessary in reaching a decision in this case two petitions (G C Exhs 3 and 4) presented to manage- ment She had also been one of the girls who spoke to Mr Headley concerning the unfair distribution of work as scheduled by Mrs Headley On January 8, 1974, after Gael Menze had completed her regular luncheon shift at 2 30 p m, she was told by Mrs Headley they were going to have to let her go When she asked why, she was told it was because of her attitude Gael Menze testified that because of the warning note which she had received the day before that she had been particularly careful with her customers that day Liz Kaska was also discharged on January 8, 1974, alleg- edly because of her refusal to turn over to the management a sum of money which had been found at one of her sta- tions Liz Kaska testified that after the money had been found by one of the busboys, she informed the busboy that she had served those people and knew the name of the party who had probably lost it Shelagh Hill and Liz Kaska then attempted to reach a Mr Atkinson on the telephone but were unsuccessful The following day when Mr Atkin- son telephoned the restaurant to inquire about his loss and described the waitress, Mrs Headley questioned Liz Kaska who readily acknowledged that she had the money and that she had tried to reach Mr Atkinson in an effort to return it Thereafter, Liz Kaska refused to give the money to Mrs Headley, but she went home immediately after her shift and returned to the restaurant with the money await- ing Mr Atkinson so that she might return it personally Meantime, Mrs Headley asked Liz Kaska on two or three different occasions to give her the money and became "miffed" when Kaska would not deliver the money to her Mrs Headley finally advised Kaska that she was being discharged for violating a company rule The posted rules (see G C Exh 8) did not specifically indicate what should be done with articles that were found in the restaurant I am convinced that while Liz Kaska's action may not have been that of an exemplary employee, nonetheless she had no intentions of misappropriating the money and at all times was making a sincere effort to return it to its rightful owner Nothing in her conduct could have caused Mrs Headley to believe otherwise In any event, while her con- duct may have warranted some criticism, it was not in vio- lation of any specific house rule regarding what should be done with money found in the restaurant On or about January 9, Shelagh Hill, Gael Menze, and Liz Kaska started picketing the Respondent's Santa Barb- ara restaurant in what has been referred to as an informa- tional picket line Gayle Nagy was employed from October 1973 as a wait- ress by Respondent until she was discharged on January 17, 1974 Miss Nagy had been active in attending the em- ployee meetings and had signed both petitions presented to the management (see G C Exhs 3 and 4) On January 17, Miss Nagy received a call from John Garnier, the manager, advising her that she was being discharged because they had received complaints from customers about her attitude and that she had told customers not to cross the picket line Miss Nagy denied ever having told anyone not to cross the picket line and further indicated that she had not discussed the Union with any customers after the publication of Respondent's no-solicitation rule (see G C Exh 10) 1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Judith Weldon was first employed in June 1972 and worked until January 19, 1974, at which time she received a 2-week suspension 6 Thereafter, shejoined the picket line on January 22 and on either January 24 or 25, at a time when she was participating in the picketing, she was hand- ed a paycheck marked, "Termination " According to Wel- don, while engaged in picketing, she and another, named Kevin Quirk, "were called over by Mrs Headley, who was standing out there, and we were handed a paycheck and I looked at it and it said `Termination' and I said to her, how can I be terminated when I am only suspended" She said, "'You were terminated the moment you joined the picket line "' At the hearing, counsel for Respondent took the position that Judith Weldon had never been fired Shelagh Hill testified that there were general employee meetings held on January 18 and 19, 1974, at the Union's office On January 22 at 10 a in , a general meeting of all employees was held and it was decided that a general strike would be called to protest the discharges of Kaska, Menze, and Hill Unquestionably Shelagh Hill was the most active spokesman on behalf of the employees Gael Menze and Jan Crampton accompanied Hill when the matter of ine- quitable scheduling was discussed with Mr and Mrs Headley who had full knowledge of who was leading the protest The early employee meetings were held at the homes of Liz Kaska and Hill Hill, Kaska, Nagy, and Menze signed the December 24 petition to management (G C Exh 3) Respondent had full knowledge of the names of the leaders of the concerted activity on the part of the employees When Warren Adler presented the em- ployees' petition to Respondent on January 6, 1974, re- questing that the Santa Barbara Workers' Union be recog- nized by Respondent for purposes of collective bargaining, the names of Hill, Kaska, Menze, Nagy, and Weldon ap- peared thereon There can be no doubt that Respondent had full knowledge of the union interest and activity of Hill, Kaska, Menze, Nagy, and Weldon Respondent's primary defense to the discharges might be broadly characterized as economic Respondent's position is this The Santa Barbara restaurant started losing money in the summer of 1973 when it was necessary for Mr Headley to devote more and more of his time to the Wood- land Hills restaurant as it approached completion In the fall of 1973, Mrs Headley found it necessary to devote more and more of her time to supervising the Santa Barb- ara restaurant in an effort to correct the downturn in busi- ness Respondent argues that the role she played and the changes she instituted not only corrected the economic downturn but brought about a resentment on the part of several employees-particularly Shelagh Hill-which ne- cessitated their discharge Respondent's counsel argues in his beef that Mrs Headley acted "not to discourage any concerted activity, but to manage the business that they owned and not let the employees do the management for them " Where the relationships between employees and employ- 6 There was testimony that she was discharged in November 1973 for sitting at a table after her shift was over but she was given her job back on the next day er is not governed by a labor agreement, the employer has a perfect right to unilaterally promulgate such working rules and regulations as is deemed necessary for an effi- cient and economically sound business operation Howev- er, if those rules and regulations become an irritant to the employees and they seek to concertedly alter or change their working conditions, the employer may not interfere with, coerce, or restrain the employees engaging in such concerted activities I Nor may an employer discriminate as to tenure of employment to encourage or discourage mem- bership in a labor organization 8 In the instant case the employees acted concertedly with- out benefit of a labor organization, and later with the aid of a labor organization A careful analysis of the record reveals Mrs Headley's testimony to be contrived She was vague, uncertain, and vacillating I am convinced from all the testimony that she siezed upon the weakest of excuses to discharge employees Hill, Kaska, Menze , Nagy, and Weldon 9 in order to hide her real purpose of seeking to disrupt and destroy the efforts of the employees to bargain collectively While Nagy was told of her discharge by John Gamier, the manager, Gamier was never called to testify, it is quite apparent that at this time Mrs Headley was running the show The testimony of witnesses Hill, Nagy, Kaska, Menze, and Weldon was much more straightfor- ward and candid than that of Mrs Headley Where there is a conflict, the testimony of the employees is credited Moreover, this conclusion is buttressed by the unbiased and credited testimony of Don Atkinson, a customer, who testified that when he asked Lori Headley Stefanos if Kas- ka had been fired for taking the money, she replied, "Oh, no, that wasn't the only reason That she was trying to organize something at the Pub itself " Regardless of wheth- er Lori Headley Stefanos is to be regarded as an agent of Respondent, as the daughter of the owners, and living in their home at the time, she was undoubtedly privy to what might otherwise have been private discussions between Mr and Mrs Headley r Sec 8(a)(1) of the Act reads It shall be an unfair labor practice for an employer to interfere with restrain or coerce employees in the exercise of the rights guaranteed in section 7 Sec 7 states Employees shall have the right to self organization to form join or assist labor organizations to bargain collectively through representa- tives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec tion and shall also have the right to refrain from any or all such activi ties except to the extent that such right may be affected by an agree ment requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) 8 The relevant part of Sec 8(a)(3) of the Act reads It shall be an unfair labor practice for an employer-(3) by discrimma tion in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization 'in my earlier Decision I accepted Respondent counsels argument that Weldon was never terminated because under the prior holding the strike was purely economic and her rights to vote and to participate in the strike were not adversely effected by her employment status Having discredited the testimony of Mrs Headley I now find and hold that Judith Weldon was terminated because she joined the picket line POOR RICHARD'S PUB The discharges of Kaska, Menze, Hill, Nagy, and Wel- don were discriminatorily motivated and violated Section 8(a)(3) and (I) of the Act. B. The No-Solicitation Rule Sometime in mid-January 1974, Respondent caused the following notice to be promulgated (G C Exh. 10): NO SOLICITATION PERMITTED DURING WORKING HOURS WORK TIME IS FOR WORK It is important to you, as well as to this restaurant, that we consistently maintain our efficiency. We must in- sist that all employees maintain a high level of work concentrating on service and courtesies to our custom- ers. Please conduct your personal business on your time, such as lunch time and coffee break periods. Your cooperation will be appreciated John Gamier (signature) POOR RICHARD'S PUB Each of the employees was asked to read and sign the notice This no-solicitation rule is clearly confined to working time and the importance of allowing an employer, engaged in serving the public (i.e., restaurant, department stores, etc.), to restrict employees in their activities which might be controversial or offensive to some customers is fully recog- nized.10 Under normal circumstances such a no-solicitation rule, worded as this one, would not be violative of the Act. Nevertheless, where there has never been a no-solicitation rule, and then a rule, such as that involved here, is promul- gated at the very height of the union activity and coming as it did immediately after the discharge of the leaders in the union movement, it is reasonable to infer that the rule was made solely to interfere with, restrain, and coerce employ- ees in the exercise of their Section 7 rights and I so fmd.11 A rule valid on its face is also presumptively valid as to its promulgation and enforcement, however, where the evi- dence is so overwhelmingly convincing that it was promul- gated and enforced for discriminatory reasons the pre- sumption of validity is rebutted. C. The Strike This opinion has already found the discharges of em- ployees Kaska and Menze on January 8, 1974, and Hill on January 9 were for discriminatory reasons violative of the Act. The picketing begun by these employees on January 9 was in the nature of informational picketing. However, on the morning of January 22, 1974, at a meeting held at the Union, a majority of the employees agreed to strike in pro- test of the unlawful discharge of their fellow workers (On January 17, 1974, Gayle Nagy was added to the list of unlawful dischargees.) A strike is characterized as an un- fair labor practice strike if initiated in whole, or in part, in 10 See Famous-Barr Co, 59 NLRB 976, SNC Manufacturing Co, Inc, 174 NLRB 159 ( 1969), affd as modified 434 F 2d 473 (C A D C, 1970) 11 Ward Manufacturing, Inc, 152 NLRB 1270 (1965) 1367 response to unfair labor practices committed by the em- ployer.12 I find the strike which commenced on January 22, 1974, was, and at all times has been, an unfair labor practice strike and the rights of the employees shall be resolved on that basis. CONCLUSIONS OF LAW 1. Respondent, Poor Richard's Pub, is a California cor- poration engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Culinary Alliance and Bartenders of Santa Barb- ara and Ventura County, Local 498, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following group of employees constitute an ap- propriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All kitchen and dining room employees, including the doorman em- ployed at Squire Richard's Pub No 1, Santa Barbara, Cali- fornia, excluding office clerical employees, guards and su- pervisors as defined in the Act. 13 4. Richard Headley, Loretta Headley, and John Gamier are supervisors and agents of Respondent within the mean- ing of Section 2(11) and (13) of the Act. 5. The discharges of Lizabeth Kaska and Gael Menze on January 8, 1974; Shelagh Hill on January 9, 1974; Gayle Nagy on January 17, 1974; and Judith Weldon on January 22, 1974, were motivated by the concerted em- ployee activity of these named individuals and their indi- vidual and collective support and activities on behalf of the Union, thus discriminatory and in violation of Section 8(a)(3) and (1) of the Act. 6. By its course of conduct in promulgating a no-solici- tation rule in mid-January 1974, Respondent has engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 7. The strike commencing on January 22, 1974, was par- ticipated in by a majority of Respondent's employees in protest to the unlawful discharges of employees Kaska, Menze, Hill, and Nagy and was an unfair labor practice strike. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section IV, above, occurring in connection with the operations de- scribed in section II, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. 12 Pecheur Lozenge Co, Inc, 98 NLRB 496 (1952), enfd as modified 209 F 2d 393 (C A 2, 1953), cert denied 347 U S 953 U The parties stipulated to the above unit and the Board found it to be an appropriate unit in their decision dated August 12, 1974 , in Case 31-RC-2736 1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE CHALLENGED BALLOT Unfair labor practice strikers are employees entitled to reinstatement and entitled to vote, but replacements for unfair labor practice strikers are not entitled to vote 14 On the basis of this legal principle and the findings herembe- fore set forth, it follows that the unlawfully discharged em- ployees Lizabeth Kaska, Gael Menze, Shelagh Hill, Gayle Nagy, and Judith Weldon are employees entitled to vote and the challenges to their ballots shall be overruled, the ballots opened and counted The following named employees were unfair labor prac- tice strikers as of the date of the election, May 2, 1974, and are entitled to reinstatement and thus the challenge to their ballots shall be overruled-the ballots opened and count- ed David Anglin, Chris Brady, Tim Brady, Janice Cramp- ton, Mary C Giles, Susan Globisch, Bill McDonough, Ja- cob Michel, Susan Maratti, Sydney Moseley, Kevin Quirk, and Craig Toms 15 It appears from the record that employees Sydney Berg, Lorraine Phillips, Karen Longford, and Patricia MacAfee were all employed before the strike began in jobs included within the bargaining unit and were working employees on the date of the election The challenges to their ballots shall be overruled, the ballots opened and counted It appears from the evidence presented at the hearing that the following named employees were hired as replace- ments for the unfair labor practice strikers, thus the chal- lenges to their ballots should be sustained Carl Perilli- Mietti, Wayne Grooms, Shawn Headley, Juan Sanchez, Debbie Shamal, Christine Smith, Miguel Alcantar Chaidez, Ton Hennessey, James Torgensen, Emmanuel Tsompanos, and Eric Peterson III Lon Headley Stefanos is the daughter of the principal owners, Richard and Loretta Headley, and is currently re- siding in the guest home of her mother and father Al- though she is working as a waitress and would normally be within the bargaining unit, in a small corporate business where the parents are the principal stockholders such as is involved here, it is well established that sons and/or daugh- ters are not entitled to vote The challenge to her ballot should be sustained 16 On the basis of the evidence presented, the challenge to the ballot of Russell Castillo should be sustained Castillo's own testimony indicated that he voluntarily quit his job as a dishwasher on January 7, 1974 However, according to his testimony, on January 17 he talked to Richard Headley and, after apologizing and asking for his job back, he was told that it would probably be all right but that he would have to come back to talk to John Gamier Castillo testi- fied that he talked to Gamier who told him that he might have his job back and to report to work on Saturday, Janu- 14 Lock Joint Tube Company 127 NLRB 1146 (1960) Tampa Sand & Material Company 137 NLRB 1549 (1962) 15 Stnkers are presumed to have retained their interest in the struck job and the burden is on the party challenging their eligibility to rebut that presumption with evidence of abandonment Pacific Tile and Porcelain Company 137 NLRB 1358 (1962) There was no showing of job abandon ment on the part of any of the strikers 16 See Sec 2(3) of the Act also Foam Rubber City #2 of Florida Inc 167 NLRB 623 (1967) ary 19 However, later he received a telephone call from Gamier and was told not to come back to work because business was real slow While there is some doubt concern- ing the precise status of Castillo, by his own testimony he quit before the strike and never actually returned to work again It is my recommendation that the challenge to his ballot be sustained and the ballot not be counted Of the 35 challenged ballots, there remains for resolution only the ballot of Mary Nolan In my opinion the record is inadequate at this time to make a determination concern- ing the status of Mary Nolan and I would recommend that her challenged ballot not be opened, but laid aside and only considered if it becomes determinative of the final election results The record reflects that Mary Nolan per- formed some general housekeeping duties in the restaurant on a part-time basis, but in my opinion there is insufficient evidence to adequately determine whether or not she has a community of interest with the other employees in the bar- gaining unit In the event that her ballot should become determinative, I would recommend that a more complete investigation be conducted by the Regional Office to de- termine the exact number of hours worked, amount and method of being paid, her complete duties and the relation- ship that her housekeeping duties might have to the wait- resses and the kitchen employees, and any other relevant factors necessary to resolve the status of her ballot THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirma- tive action which is necessary to effectuate the policies of the Act It having been found that the Respondent discriminato- rily discharged Lizabeth Kaska on January 8, 1974, Gael Menze on January 8, 1974, Shelagh Hill on January 9, 1974, Gayle Nagy on January 17, 1974, and Judith Wel- don on January 22, 1974, in violation of Section 8(a)(3) and (1) of the Act, it is recommended that the Respondent offer the above-named individuals immediate and full reinstate- ment to their formerjobs or, if theirjobs no longer exist, to substantially equivalent positions, without prejudice to any rights and privileges to which they are entitled, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, by making pay- ment to them of a sum of money equal to the amount they would have earned from the date of the discrimination to the date of the offer of reinstatement, less net earnings during said period Said sum to be computed on a quarter- ly basis in the manner established by the Board in F W Woolworth Company, 90 NLRB 289 (1950), and such pay- ment should include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth by the Board in Isis Plumbing & Heating Co, 138 NLRB 716 (1962) The following named employees having been found to be unfair labor practice strikers shall, upon an uncondi- tional offer to return to work, be reinstated to their former jobs or, if theirjobs no longer exist, to substantially equiva- lent positions, without prejudice to any rights and privi- POOR RICHARD'S PUB 1369 leges to which they are entitled, and all employees shall be made whole for any loss of pay they may suffer from the date of their unconditional offer to return to work until the date of reinstatement , by making payment to them of a sum of money equal to the amount they would have earned from the date of their offer to return to work to the date of the reinstatement, less net earnings during said period Da- vid Anglin, Chris Brady, Tim Brady, Janice Crampton, Mary C Giles, Susan Globisch, Bill McDonough, Jacob Michel, Susan Maratti, Sydney Moseley, Kevin Quirk, and Craig Toms Said sum to be computed on a quarterly basis in the manner established by the Board in F W Wool worth Company, supra, and to include the payment of inter- est at the rate of 6 percent per annum to be computed in the manner set forth by the Board in Isis Plumbing & Heat ing Co, supra It is further recommended that the Respondent preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and reports, timecards, and all other records necessary to compute the amount of backpay Upon the foregoing findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER 17 The Respondent, Poor Richard's Pub, Santa Barbara, California its officers, agents, successors , and assigns, shall I Cease and desist from (a) Discharging employees because of their concerted employee activity or interest and activities on behalf of a union (b) Promulgating or enforcing no-solicitation rules initi- ated for the purpose of discriminatorily interfering with, restraining, or coercing employees in the exercise of their Section 7 rights (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization , to form, join, or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities 2 Take the following affirmative action which is neces- sary to effectuate the policies of the Act (a) Offer to Lizabeth Kaska, Gael Menze, Shelagh Hill, Gayle Nagy, and Judith Weldon immediate and full rein- statement to their former positions or, if such positions no longer exist , to substantially equivalent positions, without prejudice to their seniority or other rights and priviledges, and make each of them whole for any loss of earnings suffered in the manner set forth in the section above enti- tled "The Remedy " (b) Upon receipt of a request for reinstatement from employees David Anglin, Chris Brady, Tim Brady, Janice Crampton Mary Giles, Susan Globish, Bill McDonough, Jacob Michel, Susan Maratti, Sydney Moseley, Kevin Quirk, and Craig Toms they shall be offered immediate and full reinstatement to their former or substantially equivalent jobs, respectively, without prejudice to their se- niority or other rights and privileges, dismissing , if neces- sary, any employees hired subsequent to the day the unfair labor strike began In the manner set forth in "The Reme- dy," make them whole for any loss of earnings they may have suffered as a result of Respondent 's failure to rein- state them after their unconditional offer to return to work (c) Post at its Santa Barbara restaurant copies of the attached notice marked "Appendix " 18 Copies of said no- tice , on forms provided by the Regional Director for Re- gion 31, after being duly signed by Respondent's author- ized representatives, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith IT IS FURTHER ORDERED that Case 31-RC-2736 be severed from Case 31-CA--4371 and referred to the Regional Di- rector of Region 31 for disposition of the challenged bal- lots in the manner set forth herein unless exceptions hereto are filed with the Board in accordance with Section 102 69 of the Board 's Rules and Regulations, Series 8, as amend- ed n In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions and recommended Order herein shall as provided in Sec 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and Order and all objections thereto shall be deemed waived for all purposes 18 In the event that the Board s Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present their evidence, the National Labor Relations Board has found that we interfered with the statutory rights of our employees and we have been directed to post this no- tice We intend to carry out the order of the Board and abide by the following WE WILL NOT discharge or threaten employees with discharge because of their concerted activity, or inter- est and activity on behalf of Culinary Alliance and Bartenders of Santa Barbara and Ventura County, Lo- cal 498, affiliated with Hotel and Restaurant Employ- ees and Bartenders International Union, AFL-CIO, or any other union 1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT publish or enforce no-solicitation rules directed and intended to interfere with , coerce, or re- strain employees in the exercise of their rights of self- organization WE WILL offer reinstatement to employees Lizabeth Kaska, Gael Menze , Shelagh Hill, Gayle Nagy, and Judith Weldon We will also make them whole for any monetary losses suffered because of our discriminato- ry treatment toward them in the manner prescribed by the National Labor Relations Board WE WILL, upon request , offer reemployment to em- ployees David Anglin , Chris Brady, Tim Brady , Janice Crampton , Mary C Giles , Susan Globisch , Bill Mc- Donough , Jacob Michel , Susan Maratti , Sydney Moseley , Kevin Quirk, and Craig Toms WE WILL NOT in any manner interfere with , restrain, or coerce our employees in the exercise of the rights guaranteed to employees under the National Labor Relations Act, which are as follows To engage in self-organization To form, join , or help unions To bargain collectively through a representative of their own choosing To act together for purposes of collective bargain- ing or other mutual aid or protection To refrain from any or all of these things POOR RICHARD'S PUB-A CALIFORNIA CORPORATION Copy with citationCopy as parenthetical citation