The Holding Co.

National Labor Relations Board - Board Decisions

Aug 25, 1977

231 N.L.R.B. 383 (N.L.R.B. 1977)

THE HOLDING COMPANY
Gary Maughan and Michael Walsh, et a., a California
Limited Partnership, d/b/a The Holding Company
and Hotel and Restaurani Employees and Barten-
ders Union, Local 2, Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO. Cases 20-CA-11323, 20-CA-11693,
and 20-RC-13488
August 15, 1977
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 15, 1977, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this consolidated proceeding.' Thereafter, both
Respondent and General Counsel filed exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge only to the extent consistent herewith, and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge concluded that
after the Union obtained authorization cards from a
majority of unit employees Respondent violated
Section 8(a)(1) of the Act on seven occasions and
discharged four employees in violation of Section
8(a)(3). Accordingly, he overruled challenges to the
ballots of the four unlawfully discharged employees.
The Administrative Law Judge also found that
Respondent interfered with the election by engaging
in certain objectionable conduct.
In fashioning an order to remedy Respondent's
unlawful and objectionable conduct, the Administra-
tive Law Judge made the following recommendation:
A certification of representative should be issued to
the Union if the revised tally of ballots results in a
I On June 12 and 15. 1976, an election was conducted among the
employees in the stipulated unit. The tally of ballots showed that of
approximately 31 eligible voters. 12 cast ballots for, and 15 cast ballots
against, the Petitioner. There were four challenged ballots, sufficient in
number to affect the results of the election. These ballots were cast by the
four employees whose discharges were alleged to have been unlawful.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
We note that, in sec. IV of the Administrative Law Judge's Decision
dealing with the 8(a)(3) violations. the Administrative Law Judge inadver-
231 NLRB No. 53
union majority. If, however, the Union does not
ultimately prevail in the election, the Board should
then determine whether the Union is entitled under
Gissel Packing Co.,3 to a bargaining order directed
against Respondent. 4 In effect, the Administrative
Law Judge determined that the Union was entitled to
either a certification of representative or a bargaining
order, but not both. The General Counsel took
exception to this rationale, asserting that the out-
come of the election should not be determinative of
whether a bargaining order should issue. We agree
with the General Counsel on this matter.
In The Great Atlantic and Pacific Tea Company,
Inc., 230 NLRB No. 102 (1977), decided by the
Board after the Administrative Law Judge issued his
Decision herein, we not only ordered the employer to
bargain retroactively with the union as a remedy for
its unfair labor practices committed after the union
attained majority status, but we also directed the
Regional Director to issue a certification of represen-
tative to the union if the revised tally of ballots
resulted in a union majority. That result is based on
the rationale that a certification alone would not
suffice to correct any unilateral changes the employ-
er may have instituted between the time when its
bargaining obligation commenced and a certification
of representative issued. Moreover, a certification
alone might well require the union to institute still
another unfair labor practice proceeding in order to
compel the employer to honor the certification by
bargaining with the union. 5 Finally, if the union
ultimately prevailed in the election, a bargaining
order should not preclude the union from enjoying
any of the benefits to which it may otherwise be
entitled as the certified representative of the unit
employees.
Since the Administrative Law Judge failed to
determine whether Respondent's unfair labor prac-
tices, committed subsequent to the time that the
Union obtained a majority of authorization cards, 6
dictate the imposition of a bargaining order, we
ourselves will analyze Respondent's unlawful con-
duct in light of Gissel Packing Co., and its progeny.
tently stated that the discharges took place on Apnl 13. 2 days before the
end of the pay penod, whereas it is clear from his Decision and the record
that he intended to state that the discharges took place on Apnl 14, I day
pnor to the end of the pay period.
N. L R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
4 If a bargaining order was not deemed appropriate, a second election
would then be conducted.
5 See Pope Maintenance Corporation. 228 NLRB 326 (1977); Independent
Sprinkler& Fire Protection Co., 220 NLRB 941,964 (1975).
6 Chairman Fanning finds it unnecessary to pass on the correctness of
the Administrative Law Judge's ruling regarding Wilner's card, as there is a
majority even without it. Nor does he and Member Jenkins adopt the
Administrative Law Judge's comments about the effect of Irving Air Chute,
addressed, as they are, to an entirely hypothetical situation.
383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(l) of the
Act by threatening to discharge an employee because
of his union sympathies and activities, to impose
adverse working conditions if employees support a
union, to take economic reprisals against employees
who actually vote for the Union, to sell or "get rid
of' the business if the Union prevails, and to refuse
to sign a contract with any union. The Administra-
tive Law Judge also found that Respondent violated
Section 8(a)(1) by interrogating an employee about
her and her coworkers' union sympathies and
activities, and by soliciting an employee to inform
management of the union activities of other employ-
ees. We also adopt the Administrative Law Judge's
finding that Respondent violated Section 8(a)(3) of
the Act by discriminatorily discharging four employ-
ees who were active union adherents, including the
leading union organizer among the employees. 7
We are persuaded that these unfair labor practices
clearly had "the tendency to undermine majority
strength and impede the election processes."8 Under
these circumstances, a bargaining order is warranted
not only to protect the employees' right to determine
freely whether they desire union representation, but
also to insure that Respondent does not profit from
his own wrongful conduct.9 Moreover, we shall date
the bargaining obligation as of April 1, 1976, the date
on which Respondent committed its initial violation
of Section 8(a)(1) and "embarked on a clear course
of unlawful conduct." 10
Accordingly, as we find merit in the General
Counsel's exception, we shall adopt the Administra-
tive Law Judge's recommended Order as modified
herein and issued the Direction set forth below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Gary Maughan and Michael Walsh, el al., a
California Limited Partnership, d/b/a The Holding
Company, San Francisco, California, its officers,
agents, successors, and assigns, shall:
1. Insert the following as paragraph 2(c) and
reletter the following paragraphs accordingly:
"(c) Recognize, effective from the date beginning
April 1, 1976, and, upon request, bargain collectively
and in good faith with Hotel and Restaurant
Employees and Bartenders Union, Local 2, Hotel
and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, as the exclusive representa-
tive of all employees in the appropriate unit, with
respect to rates of pay, wages, hours and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement. The appropriate bargaining unit
is:
"All regular full-time and part-time employees of
the Holding Company at its operation at #2
Embarcadero Center, San Francisco, California;
excluding the manager, office clerical employees,
guards and supervisors as defined in the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
DIRECTION
It is hereby directed that the Regional Director for
Region 20 shall, within 10 days from the date of this
Decision, open and count the ballots cast by Jane
Findlay, Winston Matthews, Thomas McDermott,
and Dana Wilner in Case 20-RC-13488, and prepare
and serve on the parties a revised tally of ballots. If
the revised tally reveals that the Petitioner has
received a majority of the valid ballots cast, the
Regional Director shall issue a Certification of
Representative. However, if the revised tally shows
that the Petitioner has not received a majority of the
valid ballots cast, the Regional Director shall set
aside the election results, dismiss the petition, and
vacate the proceedings.
I The Administrative Law Judge concluded that the discharges of Jane
Findlcy and Winston Matthews were motivated in part by Respondent's
union animus. We note, however, that his Decision otherwise clearly
indicates, the record demonstrates, and we therefore find that the reasons
asserted by Respondent to justify these discharges were pretextual in nature,
and that the discharges were motivated entirely by Respondent's union
animus.
I Gissel Packing Co., supra at 614.
9 See Pilot Freight Carriers, Inc., and BBR of Florida, Inc., 223 NLRB
286, 306 (1976); Bushnell's Kitchens, Inc., 222 NLRB 110, 119 (1976):
Montgomery Ward & Co., Incorporated 220 NLRB 373, 374, 392 (1975); The
Great Atlantic and Pacific Tea Company, Inc., Birmingham Division, 210
NLRB 593, 602(1974).
o1 Trading Port, Inc., 219 NLRB 298, 301 (1975); Beasley Energy, Inc.,
d/b/a Peaker Run Coal Company, Ohio Division, 228 NLRB 93 (1977).
Chairman Fanning would issue a prospective bargaining order only.
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 both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we violated
the law and has ordered us to post this notice. We
intend to abide by the following:
384
THE HOLDING COMPANY
Section 7 of the Act gives all .employees these
rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining
or other mutual aid or protection
To bargain collectively through represen-
tatives of their own choosing
To refuse to do any or all of these things.
WE WILL offer to reinstate Jane Findlay,
Winston Matthews, Thomas McDermott, and
Dana Wilner to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without loss of seniority or other rights
previously enjoyed, and will make them whole for
any loss of earnings suffered because of their
discharges, together with 6-percent interest per
annum.
WE WILL NOT discourage membership in Hotel
and Restaurant Employees and Bartenders
Union, Local 2, Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO,
or in any other labor organization of our
employees, by discharging any of our employees
or by discriminating in any other manner in
regard to their hire or tenure of employment or
any term or condition of their employment.
WE WILL recognize, effective from the date
beginning April 1, 1976, and, upon request,
bargain collectively and in good faith with Hotel
and Restaurant Employees and Bartenders
Union, Local 2, Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO,
as the exclusive bargaining representative of all
employees in the appropriate unit 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
understanding in a signed agreement. The appro-
priate bargaining unit is:
All regular full-time and part-time employ-
ees of the Holding Company at its operation
at #2 Embarcadero Center, San Francisco,
California; excluding the manager, office
clerical employees, guards and supervisors
as defined in the Act.
WE WILL NOT interrogate our employees about
their or their coworkers' union sympathies and
activities; threaten our employees with reprisals
including onerous working conditions, discharge,
or the sale of the business if they join or support
the Union; tell our employees it would be futile
for them to support a union because we would
never agree to a contract with a union; solicit our
employees to keep other employees' union activi-
ties under surveillance and to keep us informed
about employees' union sympathies and activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in exercis-
ing their rights under Section 7 of the National
Labor Relations Act, as amended.
GARY MAUGHAN AND
MICHAEL WALSH, ET AL.,
D/B/A THE HOLDING
COMPANY
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: This
consolidated proceeding is based upon unfair labor
practice charges and a representation petition filed by the
above-named Union in Case 20-CA-11323 on April 15,
1976, as amended April 28, 1976, and in Case 20-CA-
11693 on July 13, 1976, as amended August 31, 1976. The
General Counsel of the National Labor Relations Board,
herein called the Board, by the Regional Director of the
Board, Region 20, issued complaints in Case 20-CA-11323
on May 28, 1976, as amended November 2, 1976, and in
Case 20-CA-11693 on August 31, 1976, alleging that the
above-named Employer, herein called Respondent, has
engaged in unfair labor practices within the meaning of
Section 8(aX)(l) and (3) of the National Labor Relations
Act, herein called the Act. Respondent filed timely answers
denying the commission of the alleged unfair labor
practices.
In the representation case, Case 20-RC-13488, the
Union filed a representation petition on April 15, 1976,
seeking an election among a unit of Respondent's employ-
ees. Pursuant to a Stipulation for Certification Upon
Consent Ele'tion, executed by the parties and approved by
the Board's Regional Director for Region 20, a secret ballot
election was conducted on June 12 and 15, 1976. The tally
of ballots shows that of the approximately 31 eligible
voters, 12 cast ballots for, and 15 cast ballots against, the
Union. There were four challenged ballots, sufficient to
affect the results of the election, which were cast by the
four employees-Winston Matthews, Jane Findlay, Thom-
as McDermott, and Dana Wilner-whose discharges are in
issue in the unfair labor practice proceeding. The Union
filed a timely objection to Respondent's preelection
conduct based upon the alleged unlawful discharge of
Dana Wilner. On November 2, 1976, pursuant to an order
of the Board, the Regional Director of Region 20, ordered
a hearing before an Administrative Law Judge to resolve
the four challenged ballots and the Union's objection and
further ordered that the hearing be consolidated with the
unfair labor practice cases involved herein.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
posthearing briefs, I make the following:
385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Gary Maughan and Michael Walsh, et al., d/b/a The
Holding Company, the Respondent, is a California limited
partnership which operates a bar and restaurant at Two
Embarcadero Center, San Francisco, California. Respon-
dent annually has a gross volume of sales exceeding
$500,000 and purchases and receives supplies exceeding
$50,000 directly from suppliers outside the State of
California. Respondent admits it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Hotel and Restaurant Employees and Bartenders Union,
Local 2, Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO, herein called the Union, is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ISSUES
The essential questions presented in the unfair labor
practice proceedings are whether Respondent interrogated
an employee about her Union sentiments and activities and
those of other employees, and requested said employee to
engage in the surveillance of employees' union activities;
told an employee it was futile for the employees to support
a union since Respondent would never enter into a
collective-bargaining agreement with a union; threatened
employees with economic reprisals to discourage them
from supporting the Union; discharged four employees
because of their union sympathies and activities; and, if
Respondent engaged in some or all of this misconduct, is it
obligated to recognize and bargain with the Union as the
employees' bargaining representative to remedy the mis-
conduct.
The essential questions presented in the representation
proceeding are whether the four employees whose ballots
are challenged were eligible to vote and whether the
Union's objection to the election was meritorious. The
voting eligibility of the four dischargees, whose ballots have
been challenged, depends upon whether, as alleged in the
unfair labor practice proceedings, they were discharged for
union activities. Likewise, the merit of the Union's election
objection depends upon whether, as alleged in the unfair
labor practice proceedings, dischargee Dana Wilner was
discharged for union activities and, if so, whether this
conduct occurred during the critical period so it may serve
as a basis for setting aside the election.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts in Chronology
Respondent operates a bar and restaurant known as The
Holding Company which during the time material to this
' All dates herein unless otherwise stated refer to 1976.
2 The April I conversation between Walsh and McDermott is based
upon McDermott's testimony. Walsh denied cursing unions in general or
case employed between approximately 24 to 29 employees
under the supervision of managing partners Gary Mau-
ghan and Michael Walsh and Manager Larry McElwaney.
On March 12, 1976,1 waitress Dana Wilner, an alleged
discriminatee, visited the Union's offices and spoke with
union organizers about union representation. She was
given a copy of a collective-bargaining agreement negotiat-
ed by the Union and a supply of union authorization cards
for employees to sign. The cards designated the Union as
the employees' collective-bargaining representative. On
March 19 Wilner signed a union authorization card and
the same day, while at The Holding Company, solicited
seven employees to sign these cards. Two employees who
signed cards were alleged discriminatees, Jane Findlay and
Winston Matthews. On March 22 Wilner solicited bartend-
er Thomas McDermott, another alleged discriminatee, to
sign a card. He signed and, while at work, solicited two of
the bartenders to support the Union. Findlay notified two
employees about union meetings or matters of significance
concerning the Union. Matthews, a cook, told the two
employees who worked with him in the kitchen that he was
a union sympathizer. On March 19 in addition to soliciting
employees to sign cards Wilner gave waitress Jill Ballinger
several cards to distribute. On March 19, while at work,
Ballinger solicited two employees to sign cards and on
March 20, while off duty, solicited another employee.
The first union organizational meeting was scheduled for
March 29 at McDermott's residence and was attended by
approximately 12 employees including the alleged discri-
minatees. The employees discussed the terms of the
contract the Union had negotiated with other employers
and discussed the benefits the employees expected from
union representation.
On April 1, in the morning, McDermott and managing
partner Michael Walsh had a brief conversation about the
current strike by the unions which represented workers
employed by the city of San Francisco. McDermott and
Walsh indicated their disgust with the strike which had
shut down the city's public transportation system. Walsh
ended the conversation by cursing labor unions in general
and by telling McDermott: "I'll be damned if I'll ever sign
my name to any union contract." McDermott mumbled
something to the effect that he agreed with Walsh.2
On April 2, the manager of The Holding Company,
Larry McElwaney, approached waitress Jane Lochrie in
the restaurant and asked, "What's this about a Union?"
Lochrie replied that the subject of union representation
had only been casually discussed by the employees and
"pretty much dismissed." McElwaney asked "who'd been
interested in the union?" Lochrie named employees who
were no longer working for The Holding Company.
McElwaney told her The Holding Company did not want a
union because it could not afford one, that a union would
not help "things," and stated, "he thought he would have to
get rid of the little girl in the kitchen," and warned Lochrie
that "he made the schedule out and that he could change
hours if he had to keep the union out." McElwaney
stating he would not sign his name to a union contract. McDermott
impressed me as the more trustworthy witness.
386
THE HOLDING COMPANY
explained to Lochrie that he had learned about the Union
from waitress Karin Purcell3 who had told him about the
Union's organizational campaign and that she was upset
about it. McElwaney asked Lochrie "to keep him in-
formed" about "who was involved in the Union and when
meetings were taking place." Lochrie agreed. 4
On Tuesday, April 13 from about 7:30 to 9 p.m.
approximately 10 of The Holding Company's employees,
including the 4 alleged discriminatees-Matthews, McDer-
mott, Findlay, and Wilner-met with union officials at the
Union's offices. By this date a majority of The Holding
Company's employees had signed cards designating the
Union as their bargaining representative. The employees
present at the April 13 union meeting discussed whether
the Union should petition the Board for a representation
election or inform management that a majority of the
employees had signed union authorization cards and
demand that the company voluntarily recognize and
bargain with the Union. The employees directed the union
officials to file a representation petition with the Board and
also to notify the company of the Union's majority status.
On Wednesday, April 14 between 8 and 9 p.m., long after
Matthews, McDermott, Findlay, and Wilner had finished
work and left the premises, the Respondent's managing
partners, Walsh and Maughan, decided to discharge them
immediately. Walsh prepared their final paychecks and
deposited the checks in the mail and phoned all but
Wilner 5 and told them they should not come to work the
next day inasmuch as they had been discharged and their
final checks deposited in the mail. Findlay asked several
times for an explanation for her discharge. Walsh refused
to divulge the reason but, in reply to this question,
answered, "it's in the best interests of the company."
Findlay insisted on her right to know the reason for her
discharge and in effect asked for a meeting with Walsh to
discuss the matter. Walsh replied, "he felt there was no
need" for an explanation but, when Findlay continued to
press for an explanation told her "maybe sometime in the
future" he would arrange to meet with her and give her an
explanation. Similarly, when Matthews asked for the
reason he was discharged, Walsh told him "it was for the
good of The Holding Company." Walsh turned down
Matthews' request for a more detailed explanation and a
meeting to discuss the matter. In a like manner, when
McDermott asked why he was discharged, Walsh an-
' In September McElwaney and Purcell became husband and wife.
4 The descnption of the April 2 conversation between McElwaney and
Lochrie is based upon Lochne's testimony. McElwaney flatly denied
uttering any of these remarks. He testified all he talked to Lochrie about was
the current city strike. In urging that I credit McElwaney's denial
Respondent contends that in other respects Lochrie's testimony is
inconsistent and that her testimony about the conversation was inherently
incredible because Purcell, at the time the conversation took place. at least
overtly, was a union sympathizer. I have carefully considered these
contentions but, based upon my observation of the witnesses, Lochne
impressed me as an honest witness making a sincere effort to accurately
present what occurred between herself and McElwaney. McElwaney
impressed me as an untrustworthy witness.
Walsh did not have Wilner's phone number.
The description of the discharge interviews is based upon the alleged
discriminatees' testimony. Walsh's testimony does not differ in most
significant respects. In those instances where his testimony differs I have
credited the version given by the discharged employees who impressed me
as more credible and reliable witnesses than Walsh.
swered, "for the good of the restaurant," commenting
"that's all there is to be said." The next day, April 15, when
Wilner arrived for work, Walsh immediately notified her
that she was discharged and would have been discharged
the night before but he did not have her telephone number.
Wilner asked why she was discharged. Walsh, as in the case
of the other alleged discriminatees, answered "let's say it's
for the good of the restaurant." Wilner stated it was the
first time she had ever been fired from a job and wanted an
explanation but Walsh refused to discuss the matter any
further.6
On April 15 the Union filed a representation petition in
Case 20-RC-13488 seeking to represent The Holding
Company's employees. An election was held on June 12
and 15 with, as described above, 12 votes being cast for,
and 15 against, the Union with the challenged ballots of the
4 alleged discriminatees being determinative.
On June 15, after the results of the election had been
announced, Manager McElwaney, while at the bar,
informed one of the cocktail waitresses about the results of
the election and commented that with the 4 challenged
ballots the vote would be 16-15 in favor of the Union. At
this point, with tears running down his face, McElwaney
made a forceful gesture with his hands and stated: "We
have 12 people working here who voted for the Union and
we've got a lot of shit and we've got to shovel it."'
Also on June 15, late in the evening, when bartenders
Teasdale and Barnett were in the process of closing up for
the night, managing partner Walsh sat down where they
were working and commenced a long, rambling monologue
about the election and the Union, often repeating himself.
In pertinent part Walsh stated he was depressed about the
outcome of the election, that he wanted to keep control of
his business and would "sell the business if the Union did
come in." 8 Walsh explained he would lose control of the
business if the Union came in and it would no longer be
enjoyable for him to operate it, "so he would get rid of" the
business. Regarding the election, Walsh stated he had
guessed I I employees would vote for the Union but
another employee, whose sentiments he was not sure of,
must have voted for the Union. Walsh did not like the idea,
he told Teasdale and Barnett, that 12 of his employees had
voted for the Union and was personally hurt by their
conduct which indicated they did not trust Walsh. 9
7 The description of McElwaney's remarks to the cocktail waitress is
based upon the testimony of Michael Teasdale, a bartender, who was at his
work station approximately 5 feet from where McEJwaney was talking.
McElwaney denied ever telling anyone that "we have a lot of shit around
here and we have got to start shoveling." Teasdale, in manner and
demeanor, impressed me as an honest and reliable witness, a more
trustworthy one than McElwaney.
8 Walsh knew there was a distinct possibility that the Union might win
the election and thus "come in" inasmuch as a complaint had issued against
Respondent alleging that the employees whose challenged ballots would
determine the outcome of the election had been unlawfully discharged.
9 This description of Walsh's remarks is based on Teasdale's testimony.
Walsh acknowledged he spoke to Teasdale at the time in question, denied
certain of the remarks attributed to him, failed to specifically deny he
threatened to sell the business if the Union succeeded in winning the
election, and admitted he was "very emotional" and had expressed his
disappointment about the results of the election, telling Teasdale he did not
think the employees needed a union. As I have indicated. supra, Teasdale's
demeanor was that of an honest witness. In assessing his credibility I have
(Continued)
387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Conclusionary Findings
I. The alleged interference, restraint, and coercion
in violation of Section 8(a)(l) of the Act
a. McElwaney's conduct
On April 2, as fully described supra, The Holding
Company's manager, McElwaney, questioned employee
Lochrie about the Union's campaign and, in the context of
voicing Respondent's opposition to union representation,
told Lochrie he would have to discharge employee
Matthews.10 Since the topic of conversation was McElwa-
ney's desire to learn as much as possible about the Union's
organizational campaign including the names of the
employees who were union adherents, it is clear his threat
to discharge Matthews was based on a belief that
Matthews was a union adherent. In its context McElwa-
ney's threat was reasonably calculated to impress Lochrie
as being motivated by McElwaney's belief that Matthews
was a union adherent. Accordingly, I find that by
threatening to discharge Matthews because of his union
sympathies and activities Respondent violated Section
8(a)(l) of the Act.
Likewise, Respondent violated Section 8(a)(l) when
McElwaney in the same conversation warned Lochrie he
could change the employees' working schedules in order to
keep the union out. This constitutes an explicit threat of
adverse working conditions if the employees supported the
Union.
Respondent also violated Section 8(aX)(1) of the Act when
McElwaney during this conversation questioned Lochrie
about her union sympathies and activities-"what's this
about a Union?"-and about the union sympathies and
activities of other employees-"who'd been interested in
the union?" McElwaney did not have, and did not suggest
to Lochrie there was a legitimate reason for questioning her
and gave no assurances against reprisals. " Quite the
contrary, McElwaney told Lochrie he would discharge
Matthews on account of his union activities and threatened
employees with adverse working conditions if they support-
ed the Union. In these circumstances, McElwaney's
interrogation of Lochrie reasonably tended to restrain and
coerce Lochrie in the exercise of her statutory right to
support the Union, hence, violating Section 8(aX)(1) of the
Act.
In addition, McElwaney's request that Lochrie "keep
him informed" about "who was involved in the union and
when meetings were taking place," is violative of Section
8(a)(1) as a management attempt to induce an employee to
inform on the union sympathies and activities of other
employees. N.L.R.B. v. The Borden Company, 392 F.2d 412,
414, fn. 2 (C.A. 5, 1968).
considered he was laid off from work by Respondent shortly after June 15
and filed charges with the Board accusing Respondent of laying him off
because of his union activities. I have also taken into account the General
Counsel's failure to corroborate Teasdale's with Barnett's testimony.
Nonetheless, since Teasdale impressed me as an honest witness who was
telling the truth, whereas Walsh did not, I have credited Teasdale's
testimony.
'o McElwaney did not mention Matthews by name, rather, he referred to
"the little girl in the kitchen." There were three persons working in The
Also violative of Section 8(aXl) of the Act is McElwa-
ney's conduct of June 15, when, as fully described supra, in
the presence of employee Teasdale, McElwaney told a
waitress that "we [Respondent] have 12 people working
here who voted for the Union and we've got a lot of shit
and we've got to shovel it." This crude figure of speech is,
as alleged in the complaint, a none too subtle threat that
the employees who voted for the Union in the representa-
tion election of June 12 and 15 would suffer economic
reprisals.
b. Walsh's conduct
On April 1, as described fully supra, Walsh, one of The
Holding Company's two managing partners, informed
employee McDermott, "I'll be damned if I'll ever sign my
name to any union contract." In short Walsh made it quite
clear to McDermott that Respondent would never agree to
a contract with the Union. This threat that Respondent
"would never agree to a contract, since it warned of the
futility of organization, was a form of restraint prohibited
by Section 8(aXl)." N.LR.B. v. Varo, Inc., 425 F.2d 293,
299 (C.A. 5, 1970), especially in view of Respondent's other
unfair labor practices found herein. Likewise, Respondent
violated Section 8(a)(l) of the Act when, on June 15, as
fully described supra, Walsh told employees Teasdale and
Barnett he would either "sell" or "get rid of" the business if
the Union won the representation election.
2. The alleged unlawful discharges of Wilner,
McDermott, Findlay, and Matthews in violation of
Section 8(aX3) and (1) of the Act
a. The General Counsel's case
I am persuaded the record establishes a strong prima
facie case of unlawful discrimination in the cases of the
four dischargees involved herein, which imposed upon
Respondent the duty of going forward with evidence giving
an adequate explanation for its decision to discharge the
employees. N.LRKB. v. Miller Redwood Company, 407 F.2d
1366, 1369 (C.A. 9, 1969). This conclusion is based upon
the totality of the following considerations.
1. Each dischargee openly supported the Union. Wilner
initiated the Union's organizational campaign and, while at
The Holding Company, solicited several employees to
support the Union. McDermott, at whose residence the
Union's first organizational meeting was held, signed a
union authorization card and, while at work, solicited two
employees to support the Union. Findlay signed a union
authorization card and notified employees about union
organizational meetings and other matters of significance
involving union representation. Matthews signed a union
card and, while at work, communicated his prounion
Holding Company's kitchen, all of whom were male. Thus, it is clear that
McElwaney was talking about Matthews, who management and the
employees knew was a homosexual.
" Lochrie, because of a fear of reprisal, falsely told McElwaney, in
response to his interrogation, that the subject of union representation had
only been "casually" discussed among the employees and falsely named
employees who no longer worked for Respondent as having expressed an
interest in union representation.
388
THE HOLDING COMPANY
sentiments to other employees. Each dischargee attended
all of the Union's organizational meetings, on March 29
and April 13.
2. Respondent was hostile toward union activity in
general and toward union activists in particular. Manager
McElwaney, in violation of Section 8(aX)(1), threatened
employees with economic reprisals if they supported the
Union; threatened to discharge alleged discriminatee
Matthews because of his prounion sentiments; and
solicited an employee to keep the employees' union
activities under surveillance for management. Managing
partner Walsh indicated it was a sign of disloyalty to
management for employees to support the Union; that
management did not want a union; and, in violation of
Section 8(a)(1), told employees it was futile for employees
to support the Union because if the Union succeeded in
winning the representation election Walsh would never
agree to a contract and would either sell or "get rid" of the
business.
3. Respondent's refusal to give the dischargees an
explanation for their discharges is an indication that the
discharges were unlawfully motivated. A. J. Krajewski
Manufacturing Co. Inc. v. N.LR.B., 413 F.2d 673, fn. 2
(C.A. 1, 1969). Walsh, as fully described supra, refused to
give the dischargees an explanation for their discharges
even though each dischargee asked, and some of them
literally begged him for an explanation. Walsh simply told
them they were discharged because it was in the "best
interest" or for the "good" of The Holding Company. The
inference of illegality which flows from Walsh's refusal to
give an explanation is bolstered by his frivolous, shifting,
and sometimes inconsistent reasons advanced to justify this
conduct.: 2 When asked why he refused the dischargees'
several requests for an explanation, Walsh gave these
answers:
First of all, it was all on reasons that we had related
before and, to be fair to them and fair to me, you can't
do something like that over the phone. I did not want to
fire them on the phone. I would have rather dealt with
them face to face, except that meant then calling them
in and then sending them home, and that was not fair
either.
* *t
I had four people to fire. I had three schedules to redo.
I had a lot of things to take care of that night after I
talked to them and it was late, along with getting back
to running the restaurant, and was fully prepared to
talk to them at a later date if they'd ask me to, but what
I was trying to relate to them was that I don't want to
get into details at this time. I am open to discuss all the
problems that we are getting rid of you for because
we've already related them to you, but I don't want to
do it and spend an hour on the phone with each
employee.3
12 When testifying about his reasons for refusing to give the dischargees
an explanation for their discharges Walsh in manner and demeanor did not
impress me as a trustworthy witness.
1i The record reveals that Walsh, rather than suggest that the dischargees
talk with him at greater length at a later date, specifically discouraged any
When asked why he did not simply tell them they were
discharged for poor work performance and that he would
explain the reasons in more detail when he had the time,
Walsh's answer, given in an unconvincing manner which
was contrary to his earlier testimony, was as follows:
Because I was-You know, I don't like firing people
and it was very difficult to do it in the first place, and I
wanted to keep it just as short as-and tight as I could.
I just said, "I won't discuss it with you know," and it
was just because I did not want to go into it. I was
nervous about it, quite honestly. I did not like doing the
duty.
Walsh's several explanations, whether viewed separately or
in their totality, do not ring true. If, as Respondent
contends, each alleged discriminatee was discharged for
not heeding management's previous warnings to improve
their work performances, it would have been quite simple
and natural for Walsh to have stated they were being
discharged because their work performances had not
improved despite previous warnings. Instead Walsh re-
fused to advance any explanation but simply stated it was
in the "best interest" or for the "good" of The Holding
Company. This statement comes very close to being an
implied admission they were being terminated on account
of their union sympathies where, as here, the record
indicates that Walsh is of the opinion that union represen-
tation is not in the "best interest" or for the "good" of The
Holding Company. In any event, Walsh's refusal to give
the dischargees an explanation for their discharges is
evidence for inferring that the wholesale discharge of the
employees involved herein was discriminatorily motivated.
4. The timing of the discharges, coming as they did on
the heels of the Union's April 13 meeting, is strong
evidence of unlawful motivation. On the evening of
Tuesday, April 13 the Union held a meeting attended by 10
of The Holding Company's employees, including the 4
alleged discriminatees, at which time the employees
decided the Union should take immediate steps to file a
representation petition with the Board and contact Re-
spondent in an effort to become the employees' bargaining
representative. Less than 24 hours later Respondent
decided to discharge the four alleged discriminatees, none
of whom is being accused of engaging in the type of
flagrant misconduct normally associated with such summa-
ry dismissal. That the timing of this wholesale discharge of
employees was not just coincidental in time with the
Union's organizational campaign and the meeting of April
13 is illustrated by the fact that the discharges took place in
the middle of the discharged employees' workweek and 2
days before the end of the pay period and several days
prior to payday. Indeed Walsh's testimony indicates
Respondent normally terminates employees at the end of
the payroll period because, in Walsh's words, it is "the
logical time to get rid" of employees. Moreover, since
Thursday and Friday, the last 2 days of the discharged
future discussion with one dischargee and outright refused to meet with
another and in the case of the dischargee. who personally came to Walsh's
office, refused to give her an explanation for the discharge commenting that
"maybe" at some unspecified time in the future such an explanation would
be forthcoming.
389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees' workweek, are particularly busy lunch days and
all four of the dischargees worked the lunch shift, it was
particularly illogical for Respondent to discharge them
when it did, especially since no previous arrangements had
been made to hire new employees to fill the four vacancies
created by the discharges. Until new hires could be
employed to replace Findlay, Wilner, and McDermott, the
work schedules of three currently employed persons were
changed by Walsh who notified these employees on the
evening of April 13 about the change in their work
schedules for the following day. Regarding the vacancy
caused by Matthews' termination another kitchen employ-
ee was able to take over his job as cook but it was then
necessary for Walsh, the same evening, to contact an
applicant to fill the vacant kitchen job. In short, the
evening of April 13, was a hectic one for Walsh. In his
words, "I had four people to fire. I had three schedules to
redo, I had a lot of things to take care of that night after I
talked to them [referring to the dischargees] and it was late
.... " I am convinced that if the wholesale discharge of
the four employees involved herein was motivated by
legitimate business considerations Walsh could have first
decided upon their termination, then gone about securing
replacements to fill the vacancies created by their impend-
ing departures and, only then, at the end of the payroll
period or of the dischargees' workweek tell them face-to-
face they were discharged and explain to them the reason
for their discharges rather than at night by telephone in the
middle of the workweek precipitously notify them of their
discharges and refuse to explain the reason for the
discharges.
5. The abrupt and highly unusual manner in which this
wholesale discharge of employees was handled by manage-
ment is not consistent with the way in which an employer
discharges employees for legitimate business reasons;
rather, it suggests illegality. The decision to discharge was a
joint one reached by managing partners Walsh and
Maughan during the evening of Wednesday, April 14.
Between 8 and 9 p.m., San Francisco time, Walsh phoned
Maughan who was visiting his family in Miami, Florida,
where it was between II p.m. and 12 midnight, at which
time they decided to terminate the four alleged discrimina-
tees. Immediately after reaching this decision Walsh
prepared the employees' final paychecks which were
mailed to them that same evening. The same evening
Walsh also phoned the alleged discriminatees and told
them they were discharged.' 4 None of them is being
accused of engaging in the type of misconduct normally
associated with such a hasty dismissal. This haste and the
14 As found supra, Walsh did not have Wilner's phone number so was
unable to notify her that she was discharged until the following day when
she arrived for work.
16 During the hearing Walsh acknowledged that the manner in which the
dischargees were notified about their discharges was unusual. He testified,
"you can't do something like that [referring to informing employees the
reasons for the discharges] over the phone. I did not want to fire them on
the phone. I would rather have dealt with them face to face." His reason for
abruptly terminating the employees over the phone in the middle of the
workweek without giving them an explanation, was not given in a
convincing manner.
16 There were 10 employees who attended the meeting, including the 4
dischargees.
~T Respondent urges that since one of the most active union adherents,
Jill Ballinger, was not discharged it negates any showing that the discharges
strange and unconventional manner in which Respondent
handled these discharges,15 especially when viewed in the
context of the refusal to furnish the dischargees an
explanation for their discharges, strongly suggests that the
wholesale discharge of employees involved herein was not
based upon legitimate considerations but rather upon
illegal ones.
6. The disproportionate number of union adherents
abruptly discharged who attended the April 13 union
meeting and who signed cards for the Union is persuasive
evidence of discrimination. Thus, 40 percent of the
employees who attended the April 13 union meeting were
abruptly discharged less than 24 hours later.16 No employ-
ee who did not attend this meeting was discharged. Also
this represents a 100-percent discharge of union card
signers, while the percentage of union card signers in the
whole voting unit at this point of time was only 57 percent.
This disproportionate number of union adherents dis-
charged who had signed cards and attended the April 13
union meeting, when viewed in the context of Respon-
dent's extreme hostility toward union representation as
expressed by its violations of Section 8(a)(1) herein, and the
abruptness and the unusual manner in which the discharg-
es were effected, is persuasive evidence of discrimination.
See N.L.R.B. v. Midwest Hanger Co. and Liberty Engineer-
ing Corp., 474 F.2d 1155, 1158 (C.A. 8, 1973). Also see
N.LR.B. v. Chicago Steel Foundry, 142 F.2d 306, 308 (C.A.
7, 1944), where the court stated:
To be sure, percentage evidence, standing alone, will
not support or sustain an order based on § 8(aX3) of
the Act. . .. . But disproportionate treatment of union
and nonunion workers may be very persuasive evidence
of discrimination. . . and may create an inference of
discrimination leaving it to the employer to give an
adequate explanation of the discharge or layoff....
The aforesaid considerations in their totality persuade
me the General Counsel has established by a preponder-
ance of the evidence a strongprimafacie case of unlawful
discrimination for each dischargee involved herein.'7 In so
concluding, I have carefully considered the testimony of
Respondent's supervision-managing partners Walsh and
Maughan and Manager McElwaney-that they were
without knowledge that any one of the alleged discrimina-
tees was a union adherent or that its employees in general
were conducting a union organizational campaign. Since
all three failed to impress me as honest witnesses I did not
give significant weight to their conclusionary denials of
of Findlay, Matthews, and McDermott, who were less active in their support
of the Union, was motivated by Respondent's union animus. I disagree. The
wholesale discharge of union adherents, as occurred in this case, albeit one
of the more active union adherents was not included, is sufficient to warn
those who remain that they will suffer the same fate if they persist in
organizational activities, especially, where as here, two of the most active
union adherents-Wilner and McDermott-were included in the discharge.
It is well settled that the failure of an employer to discharge all union
activists is no defense to those discharges which are demonstrated to be
discriminatorily motivated. See The Rust Engineering Company, et al. v.
N.LR.B., 445 F.2d 172, 174 (C.A. 6, 1971); N.LR.B. v. Puerto Rico
Telephone Company, 357 F.2d 919 (C.A. 1, 1966); Nachman Corporation v.
N. LR.B., 337 F.2d 421, 424 (C.A. 7, 1964); N.LR.B. v. W. C Nabors, d/b/a
W. C Nabors Company, 196 F.2d 272, 276 (C.A. 5, 1952).
390
THE HOLDING COMPANY
knowledge of union activities. Quite the contrary, a careful
assessment of all of the evidence pertaining to the
discharges leads me to reject Respondent's contention that
it was not cognizant of the discriminatees' union sympa-
thies and activities. Rather the whole record demonstrates
that at the time of the wholesale discharges involved
herein, Respondent possessed knowledge of the dischar-
gees' union activities. I am particularly persuaded as to the
validity of this finding by the following evidence, inter
alia:s8 Each dischargee openly supported the Union; the
small number of employees working at The Holding
Company (between 24 and 29 during the relevant times)
and the very close day-to-day contact management
maintained with the employees; 19 the Respondent exhib-
ited a hostility toward union activity in general and union
activities in particular, threatening to discharge one of the
discriminatees because of his union sympathies; the timing
and the abruptness of the discharges, which occurred in the
middle of the workweek within 24 hours of the alleged
discriminatees attending a union meeting; the highly
unusual manner in which the discharged employees were
notified about their discharge, over the phone at night and,
despite their requests, were not given an explanation for
their discharges; the disproportionate number of employ-
ees that were discharged who signed union cards and
attended the April 13 union meeting; and, the fact that
prior to the discharges Respondent was attempting to learn
the names of those employees who favored the Union and,
in this regard, interrogated at least one employee about the
union activities and sympathies of employees and solicited
this employee to keep the union activities of employees
under surveillance and keep management informed about
the union sympathies and activities of the employees.
Accordingly, I conclude there is ample evidence upon
which to predicate the inference that the managing
partners, Walsh and Maughan, were aware of the prounion
efforts of employees Wilner, Findlay, McDermott, and
Matthews when they decided to discharge them.
I shall now evaluate Respondent's reasons for discharg-
ing the alleged discriminatees.
b. The Respondent's justification for the discharges
Jane Findlay
Findlay began working at The Holding Company in
September 1975 as a food and cocktail waitress. In its
posthearing brief Respondent urges Findlay was an
unsatisfactory employee because: "[Findlay] did not
attend to her tables [and] as a result she did not clear the
'" It is well settled that proof of knowledge of union activity may be
shown by circumstantial as well as by direct evidence. Famet, Inc. v.
N.L.R.B., 490 F.2d 293 (C.A. 9, 1973), and N. L. R.B. v. Long Island Airport
Limousine Service Corp., 468 F.2d 292, 295 (C.A. 2, 1972).
i9 Walsh, Maughan, and McElwaney each spent between 10 to 12 hours
daily, 6 days a week. on the premises of The Holding Company mainly in
the working areas supervising the employees and continually visiting with
them, on a first-name basis, and even working with them. In Walsh's words:
It's a very small shop. It's only 3.000 square feet. The widest part of the
restaurant is no wider than this courtroom. You're watching and seeing
and eating and working with the same people from 4 to 8 hours a day
.... So you're around, you understand all their personal problems or
you get to know what they're doing and you know whose going to
tables of plates, ashtrays and glasses as expected";
"numerous" customers complained about her rudeness;
employees complained about her attitude; "Findlay was
never friendly or gregarious"; "she was very poor on
cocktails." The evidence offered in support of these
contentions is not impressive.
Regarding the complaints employees voiced about
Findlay's attitude, Walsh testified that once, in February,
newly hired waitresses asked if Findlay was the head
waitress, stating she had told them to perform certain
duties in connection with their side work-filling salt and
pepper shakers, etc.-which they had been led to believe
was not required of them. Walsh did not reprimand
Findlay but, as he testified, simply told her that if she
thought the new waitresses were not doing their work
correctly to come to either himself or Maughan or
McElwaney and not to take it upon herself "to train" the
new employees. This was the first and last time Findlay
engaged in this type of conduct. The only other testimony
adduced by Respondent in support of this contention was
McElwaney's testimony that three new employees told him
they felt "intimidated by Findlay when they came to work
that she was very cold to them and did not like a new
person coming into the operation." Respondent offered no
evidence to indicate in what manner Findlay's alleged poor
disposition toward new employees affected the operation
of the restaurant. It is a fair inference that the matter had
virtually no impact upon the employees' work or the
operation of the restaurant inasmuch as McElwaney
admittedly never spoke to Findlay about the matter.
The contention that Findlay was a "very poor" cocktail
waitress is based upon the conclusionary testimony of
Walsh, Maughan, and McElwaney. What it amounts to is
that Findlay prior to her employment with Respondent
never worked as a waitress and, as a result, was not familiar
with the names of the various cocktails. Also, according to
McElwaney, when waiting on luncheon customers she
would inquire, "may I take your order now," rather than,
"would you care to have a cocktail." In connection with
her lack of knowledge about the names of the various
cocktails Findlay was told, when she first began working in
September 1975, to become familiar with the names of the
cocktails by reading a book on the subject. Other than this,
the testimony of Maughan, McElwaney, and Walsh reveals
no further discussion by management with Findlay about
her cocktail service?2
The contention that Findlay was a poor waitress because
she did not clear her tables of dirty dishes, glasses, and
ashtrays is based upon Walsh's testimony that Findlay
school, what classes they're taking, what they're doing with their
hobbie. It turns into basically a family relationship ....
When you have a small shop like ours, everyone is working and the) all
sit and eat together; they converse together, they work together all day
long. They're all interrelated as far as their job activities; and, anything
that happens to anyone of them, everybody else knows about.
20 I recognize that at one point in his testimony Walsh volunteered, "we
tried to work with [Findlay] on [selling cocktails] and get her to sell more."
This conclusion was never particularized by either Walsh. McElwaney, or
Maughan.
391
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"was a sloppy waitress, her tables were very sloppy. The
plates, the ashtrays, the empty drink glasses, they were
usually picked up by somebody else rather than her."
Walsh did not particularize this generalization nor was his
testimony corroborated by either Maughan or McElwaney
who, when asked to detail Findlay's work problems,
conspicuously neglected to mention that she was a "sloppy
waitress" as described by Walsh.
The testimony offered in support of the contention that
Findlay was not friendly or gregarious and that manage-
ment received numerous complaints from customers about
her rudeness, like the other misconduct attributed to
Findlay, is singularly lacking in specifics. Walsh testified
that when he hired Findlay he knew she was a quiet rather
than a gregarious person but that after she began working
he observed she was inattentive and rude to customers
which type of conduct increased sharply on or about
March 1, 1976. The only evidence adduced by Respondent
concerning this alleged inattentiveness or rudeness toward
customers by Findlay, which approximates any degree of
specificity, is McElwaney's testimony that two customers
in the middle of March, one named Mack Hood and the
other named "Jim," complained she had been rude.
Respondent's supervisors-Walsh, Maughan, and McEI-
waney-testified that on several occasions they discussed
the problems they were having with Findlay. Walsh
testified McElwaney and he discussed Findlay's work
problems two or three times, the last time at the very end of
March when McElwaney told Walsh he was having
"continuing problems" with Findlay's job performance
and with her attitude toward the new hires and, Walsh
further testified, that at about the same time McElwaney
recommended Findlay's discharge. McElwaney testified he
related his problems with Findlay to Maughan and Walsh,
as the problems occurred, and as early as March I decided
she should be fired at which time he voiced this recommen-
dation to Maughan and Walsh and in late March repeated
this recommendation. Walsh and Maughan, according to
McElwaney, agreed with his evaluation of Findlay but said
she should be given a chance to improve. All three
supervisors testified that on several occasions they made it
clear to Findlay they were dissatisfied with her perfor-
mance. McElwaney testified he spoke with Findlay three
times about her unsatisfactory performance, the last time
in the middle of March when he told her that he had a
complaint from two customers that she had been rude and
told her he would not tolerate this type of conduct.
Maughan testified he spoke with Findlay about her work
deficiencies approximately two or three times, the last time
in the first week of April when he threatened her with
discharge "if she did not once again get her performance
up to par." Walsh testified that whenever he was in the
restaurant during lunch he would speak to Findlay about
her poor work, the last time being on April 14, the day she
was discharged.
Findlay's version of her employment history is in sharp
conflict with management's testimony. It is undisputed that
when she started work in September 1975 management
knew she had never previously worked as a waitress. The
result was that for the first 2 to 3 months of her
employment, as she testified, she received frequent criti-
cism about her lack of efficiency; slowness in serving
customers and clearing off the tables; and the fact she was
not familiar with the names of the numerous mixed drinks.
But, after this initial 2- or 3-month training period, Findlay
testified, she became a proficient waitress who received no
more than the usual comments from supervision, on the
floor of the restaurant, that were made to all of the
waitresses, i.e., "did you catch that table"-"they are done
eating, can you get that bussed." Findlay denied that
during her last several months of employment she was
spoken to, let alone criticized or reprimanded, about her
work performance, her attitude toward customers, her lack
of knowledge of cocktails, or that any member of
management indicated they were displeased with her work
performance, and she denied that on April 14 anyone said
anything about her work.
I credit Findlay's testimony that after her initial period
of employment she became a proficient waitress who was
never criticized, reprimanded, or spoken to by manage-
ment about her work performance or attitude. Findlay's
demeanor in presenting her testimony was that of a person
intent on telling the truth, whereas the demeanor of each
one of Respondent's witnesses was that of a person not
interested in the truth but rather in bolstering Respon-
dent's case. I realize this is a harsh judgment and I am not
an infallible observer and that appearances sometimes are
deceiving. However, the whole record not only fails to
indicate that I have done Walsh, Maughan, and McElwa-
ney an injustice, rather it strongly suggests their testimony
was fabricated.
Findlay was admittedly Respondent's top selling lunch-
eon waitress and from January 1976 continually to the date
of her discharge was assigned to those sections of the
restaurant which generated the most business. McElwaney,
who assigned the waitresses, testified he made work
assignments based upon his evaluation of the waitresses'
job performances, particularly their speed and courtesy
toward customers. Several waitresses apparently objected
to McElwaney's system of work assignments, feeling that a
strict rotation system should be used. They voiced this
complaint to him at a meeting in March 1976 and
specifically asked why McElwaney continually assigned
the same waitresses to the better work stations. In reply, it
is undisputed, McElwaney stated that "Findlay and
Marilyn [Galinsky] were the two top selling waitresses for
lunch" and that this was the reason they were assigned to
the busier work stations. Obviously, the continual assign-
ment of Findlay to work stations which, because they were
so busy, brought her into contact with more customers
than the other waitresses and allowed her to earn more
money than the others, does not square with the picture of
Findlay painted by Maughan, Walsh, and McElwaney: a
sloppy and inefficient waitress, rude and inconsiderate
toward the customers, who was the subject of countless
reprimands, and whose discharge had been recommended.
In an effort to explain why such an undesirable employee
was continually assigned the best work stations Walsh,
Maughan, and McElwaney each gave a different and
inconsistent reason. Walsh testified Findlay was assigned
to the better work stations because they "had a high
392
THE HOLDING COMPANY
visibility factor... so you could see everything she was
doing . and could make corrective suggestions."21
Maughan, however, made no mention of the need to keep
Findlay's work under surveillance but justified her assign-
ment to the better work stations, "because they are easier
sections to work . . . they are much more compact."
Finally, McElwaney relied upon a completely different
reason, namely, Findlay had requested to work late thus he
assigned her to section "d," the "late station" which
happens to be one of the best work stations in the
restaurant?.
It is undisputed that approximately the first part of
February McElwaney asked Findlay to work evenings as a
cocktail waitress. A strange request if, as Walsh, Maughan,
and McElwaney testified, Findlay was a "very poor"
cocktail waitress.
Walsh's inability to explain to Findlay the reason for her
discharge despite Findlay's repeated requests for an
explanation belies the testimony of Walsh, Maughan, and
McElwaney that they considered her a highly unsatisfacto-
ry employee who had personally been reprimanded by
each of them on several occasions and had been threatened
with discharge if she did not improve.
Based on the foregoing I find that prior to discharging
Findlay Respondent had not indicated that her job was in
jeopardy or otherwise reprimanded her on account of her
work performance or attitude but, to the contrary, for the
last 3-1/2 months of her employment continually assigned
her to work stations normally reserved for those waitresses
held in high esteem by management. These circumstances,
plus the insubstantial evidence adduced by Respondent to
justify its contention that Findlay was an unsatisfactory
employee, when added to the factors which make up the
General Counsel's prima facie case, supra, establish that
Findlay's discharge was motivated, at least in part, by the
Respondent's union animus. Accordingly, I find that by
discharging Findlay the Respondent violated Section
8(a)(l) and (3) of the Act.
Winston Matthews
Matthews, employed as a cook, began his employment at
The Holding Company July 25, 1975. The Holding
Company only serves one meal, lunch, and during the time
material to this case only served hamburgers, salads, and a
daily special (i.e., stew, spareribs). Matthews' duties were to
prepare the salads, the daily special, broil the hamburgers,
and order the produce, bread, and meat. Matthews, as he
testified, "sort of ran the kitchen" under the direct
supervision of McElwaney and Maughan.
Matthews' prior work experience as a cook was limited
to several months' work as a fry cook and short order cook.
He was trained by Maughan. His work performance was
regarded as sufficiently satisfactory to pass the company's
30-90-day probationary period for new hires and manage-
21 This does not ring true because The Holding Company, as Walsh
admitted, is a "very small shop ... only 3,000 square feet. The widest part
of the restaurant is no wider than this courtroom." Obviously, it was not
necessary for McElwaney to assign Findlay to one of the better work
stations in order to keep her work under surveillance.
22 Section "d" remains open for business until approximately 4 p.m.
whereas all of the other sections in the restaurant stopped serving lunch at 3
p.m. The record reveals Findlay worked late only 2 days a week, Thursday
ment continued to regard him as a satisfactory employee
until approximately January when, according to Respon-
dent's witnesses Walsh, Maughan, and McElwaney, his
overall work performance progressively commenced to
deteriorate in virtually every conceivable respect. They
testified Matthews was an unsatisfactory employee for the
following reasons: His attitude in communicating with
management and his fellow employees was poor; custom-
ers complained about his food; constantly tardy for work;
he ordered too much bread and lettuce thus causing
spoilage; management was unable to reach him at home
when he was absent from work; he gave employees food to
take home; he gave employees too much food to eat for
their lunch; he prepared an insufficient number of salads
for lunch; and once was responsible for the spoilage of a
substantial amount of hamburger. During this period from
approximately January to April 14, according to Maughan,
Walsh, and McElwaney they had numerous discussions
among themselves about Matthews' unsatisfactory work
performance. Also, on numerous occasions, they discussed
this with Matthews who was threatened with discharge by
McElwaney, the first week in April, and by Maughan, the
last week in March, if his job performance did not improve.
In the middle of March, according to Walsh's testimony, or
according to McElwaney's, as early as February 1,
McElwaney recommended to Walsh that Matthews be
terminated and, at this time, McElwaney commenced to
train another kitchen employee to take over Matthews'
duties if he failed to improve his work performance. 23
Matthews testified that Maughan or McElwaney spoke
critically to the three kitchen employees as a group about
their work on approximately seven occasions. Matthews
further testified that McElwaney spoke to him alone about
his work performance only once, approximately I month
before his discharge. McElwaney told him to "keep things
clean" and to prepare himself and the kitchen staff "a little
bit better." Matthews testified that management did not
threaten him with discharge or other discipline or criticize
him, as Maughan, McElwaney, and Walsh testified.
Regarding the specific instances of misconduct they
attribute to him, Matthews testified as follows: (I) He
denied being continually late for work but testified he was
tardy between 2 to 5 minutes once every 2 weeks and was
reprimanded only once when he was 30 minutes late; (2) he
testified that on the three or four times when he was absent
from work he notified supervision about his absence and
stayed home and was never reprimanded for not being at
home when supervision tried to reach him nor was accused
of this conduct; (3) regarding the episode of the spoiled
hamburger, Matthews testified the other kitchen employees
were responsible for this and that when Maughan spoke to
him about the matter Matthews told him it was the
responsibility of the other kitchen employees to replace the
unused hamburger in the cooler at the end of the work shift
and Friday. Since the kitchen closed Friday at 3 p.m. she worked late
regarding food service only I day a week. Under the circumstances
McElwaney's justification for assigning Findlay to section "d- is palpably
false.
23 McElwaney at first testified he recommended Matthews' discharge
approximately February I and then in later testimony inconsistently placed
the date of this recommendation as approximately March I and in other
testimony dated it as of late March.
393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that Maughan answered that he would investigate the
matter and never mentioned the subject again; (4)
regarding giving the employees too much food for their
lunch, Maughan testified this took place only twice, the
first time in July 1975 and the last time in January 1976
when Maughan observed an employee sitting at a table
eating lunch with more food than allowed under company
policy, so, he spoke to Matthews who denied having given
the waitress extra food; and (5) regarding giving employees
food to take home McElwaney testified that on approxi-
mately March I an employee told him Matthews was
giving employees a half pound of uncooked hamburger to
take home if they did not want to eat it at the restaurant for
lunch,24 but McElwaney never did speak to Matthews
about this and no one ever advised him there was anything
improper about allowing the employees to take their lunch
home.
Based upon my observation of their manner and
demeanor while testifying I received the impression
McElwaney, Maughan, and Walsh were not trustworthy
witnesses when testifying about Matthews' alleged failings
but were more interested in building a case against him.
Matthews impressed me as a trustworthy witness making a
sincere effort to truthfully answer questions. I find that
while Respondent may not have been entirely satisfied with
his performance, its displeasure never reached the point
where Matthews was threatened with discipline, including
termination, if his performance failed to improve.2 5 Also
indicative that Matthews' alleged unsatisfactory work
performance was not a significant factor behind his
discharge is the fact that exactly I week prior to the
discharge Maughan informed Matthews, who approxi-
mately 2 months earlier had received a pay raise of 20 cents
an hour, "you're doing a good job and we are raising you a
dime an hour," and thanked him for doing a good job.26 It
strains credulity to believe that on approximately the same
day Matthews received a pay raise that McElwaney, as he
testified, threatened him with discharge if his work
performance did not improve and that the previous week
Maughan, as he testified, made a similar threat to
Matthews. The conclusion that management never threat-
ened Matthews with discipline, let alone termination, is
bolstered by Walsh's refusal to give Matthews an explana-
tion for his discharge. In reply to Matthews' repeated
requests for an explanation Walsh told him that at "this
24 Employees are entitled to a half pound hamburger for lunch, a chefs
salad, or a daily special.
25 Likewise I reject Walsh's explanation of Matthews' April 14 miscon-
duct which Walsh testified triggered the decision to fire Matthews on that
date. Walsh was not questioned about this significant matter during either
direct or cross-examination so, after both counsel concluded their examina-
tion, I asked him what triggered the decision to discharge Matthews. Walsh
answered in substance that the proverbial "straw that broke the camel's
back" was a "tremendously bad day" in the kitchen on April 14: A large
number of meals were returned by customers as being undercooked; there
was "disharmony in the kitchen"; and Matthews failed to prepare a
sufficient number of salads. Walsh further testified that although not all of
the blame for this situation could be placed on Matthews that Matthews was
more responsible than the other kitchen employees since he occupied a more
responsible position. I observed Walsh very closely when he gave this
testimony, in response to my question, and he was not a convincing witness.
Moreover, I find it significant that Respondent, as part of its case-in-chief,
did not question Walsh about this significant matter and failed to adduce
corroborative evidence of the events of April 14 through McElwaney whose
time" he could only tell him he was being discharged "for
the good of The Holding Company." When Matthews
inquired when Walsh could discuss the matter in greater
detail, Walsh simply ignored the question. I am convinced
that if, as Respondent's witnesses say, management on
numerous occasions reprimanded Matthews about specific
work problems and on at least two occasions threatened
him with discharge if he failed to improve, that Walsh
would have simply told Matthews that previously he had
been reprimanded and threatened with discharge due to
poor work performance and was now being discharged for
not improving his performance.
Based on the foregoing I find that prior to discharging
Matthews Respondent did not indicate to him that his job
was in jeopardy if he failed to improve his work perfor-
mance or otherwise threatened him with discipline on
account of his work performance but, to the contrary, the
week before he was discharged Respondent granted him an
increase in his pay and complimented his work. These
circumstances when added to the factors which make up
the General Counsel's prima facie case, supra, including
Manager McElwaney's threat to discharge Matthews
because of his union sympathies, establish that Matthews'
discharge was motivated, at least in substantial part, by
Respondent's union animus. Accordingly, I find that by
discharging Winston Matthews the Respondent violated
Section 8(a)(3) and (1) of the Act.
Thomas McDermott
On August 15, 1975, McDermott began his employment
with The Holding Company as a bartender. Respondent's
supervisory staff-Walsh, Maughan, and McElwaney-
testified he was an unsatisfactory employee because his
bad attitude alienated customers and employees, he had
the habit of breaking an unusually large number of glasses,
and his cash register was short of cash. They also testified
that on numerous occasions his unsatisfactory work
performance was discussed among supervision and, like-
wise, on numerous occasions, each one of them personally
criticized him about his unsatisfactory performance.
Maughan and Walsh testified that their several conversa-
tions with McDermott culminated with a meeting between
the two of them and McDermott on March 2427 when
McDermott was issued an ultimatum to either change his
attitude toward work or face discharge and, then, early in
responsibility, as Maughan testified, was to see that lunch functioned
properly. Also, Matthews credibly testified that no one spoke to him on
April 14 about his work performance. For these reasons, I reject Walsh's
explanation of the April 14 events which supposedly triggered the decision
to discharge Matthews.
28 Respondent admittedly granted Matthews a pay raise on April 7 but
Maughan denies complimenting his work as described above. Matthews
impressed me as the more trustworthy witness, thus, I have credited his
testimony. Maughan explained the April 7 pay raise on the ground that the
two other kitchen employees received a pay raise on that day, that
Matthews' raise was the smallest, and was granted because Maughan "was
trying to save his job and did not want to cause animosity if the other
fellows got that kind of raise and he got none." In general Maughan failed to
impress me as a credible witness and his testimony on this point was not
given in a convincing manner, hence, I have rejected it.
27 Walsh was unsure of the date of this meeting. He placed it as taking
place in late March or early April. Maughan testified it took place about 2
weeks before McDermott's discharge. McDermott, who impressed me as the
more reliable witness, testified it took place March 24.
394
THE HOLDING COMPANY
April, McElwaney likewise testified he issued an ultimatum
to McDermott if he continued to break glasses and did not
change his attitude toward the customers, he would be
discharged.
McDermott credibly testified that neither Walsh, Mau-
ghan, nor McElwaney ever issued a discharge ultimatum to
him. He specifically denied that during the meeting of
March 24 Maughan and Walsh criticized or told him his
attitude was poor or threatened to discharge him if his
work performance and attitude failed to improve.28 During
his 8-1/2 months of employment, McDermott credibly
testified, only once did supervision indicate it was not
satisfied with his work. This occurred on February 9 when
McDermott was reassigned to the 11 a.m.-7:30 p.m. shift
from the night shift. In reply to McDermott's inquiry about
the reason for this reassignment Walsh told him he was
spending too much time talking with the cocktail waitresses
instead of being attentive to the customers and that when
waiting on customers he was too slow in filling the cocktail
waitresses' orders and told McDermott that his "attitude
and spirits" seemed to fluctuate, which "somewhat dis-
turbed" Walsh. 29
Regarding the cash shortages in McDermott's cash
register, the record reveals that all bartenders suffer cash
shortages, the sum of money in the cash register at the end
of the bartender's work shift is less than the amount of
customers' billings. Walsh admitted that all bartenders
were short small amounts of money but testified McDer-
mott "was more erratic than the other bartenders."
McElwaney testified that while all bartenders suffered
small shortages, on one occasion McDermott was short
approximately $20 and, as a rule, suffered cash shortages
more frequently than the other bartenders. McDermott
acknowledged that once in February, as McElwaney
testified, he was short a large sum of money-$24--but
credibly testified he was not criticized for this and that the
next workday the missing money was located-another
bartender paid a bill with the money-and that McElwa-
ney informed him the matter had been straightened out
and that there was in fact no money shortage. There is no
evidence that supervision ever criticized or even spoke to
McDermott about the subject of cash shortages. Indeed,
when Walsh and Maughan were asked at the hearing to list
their complaints or problems they had with McDermott
neither one mentioned the matter of cash shortages. Under
the circumstances, the record overwhelmingly demon-
strates that the matter of McDermott's alleged cash
2" It is undisputed that neither Maughan nor Walsh initiated the March
24 meeting. rather McDermott asked to talk with them. This is hardly an
indication that on March 24 Walsh and Maughan. as they testified, were so
unhappy about McDermott's work performance that they were thinking in
terms of discharging him.
29 In crediting McDermott's denials over the testimony of Walsh.
Maughan, and McElwaney, I was influenced by the sincerity of McDer-
mott's demeanor when he testified whereas Walsh, Maughan, and
McElwaney did not impress me as honest witnesses. In addition. if, as
Respondent's witnesses testified, they reprimanded McDermott about
specific work problems and on at least two occasions. shortly before his
discharge, issued him discharge ultimatums, why did Walsh refuse to give
McDermott an explanation for his discharge? As indicated supra, on
February 9. when Walsh reassigned McDermott to a different work shift he
had no problem explaining the reassignment to McDermott. I am convinced
that Walsh's inability to give such an explanation to McDermott on the date
of the discharge belies the testimony of Maughan, Walsh, and McElwaney
shortages was of no concern to Respondent and played
absolutely no part in his discharge.
Regarding the breaking of glasses the record establishes
that due to the nature of their work it is not unusual for the
bartenders to break glasses. What was unusual, Walsh and
Maughan testified, was the extraordinary large number of
glasses which were continually broken by McDermott
because of his clumsiness and the fact that he picked up
too many with one hand. They testified the problem of
McDermott's glass breaking existed since the start of his
employment in August 1975 and with the installation of a
new dishwasher in November 1975, Walsh testified, the
problem got worse. Maughan testified he warned McDer-
mott half a dozen times about carrying too many glasses in
one hand, explaining, "[McDermott] likes to have a trick
where he could get as many stem glasses in one hand as he
could and generally break half of them." In order to prove
his point that McDermott continually broke large quanti-
ties of glasses, Maughan volunteered, "[McDermott] broke
practically all the beer mugs in the cooler one night, which
is not easy"-"as he was putting beer mugs in [the cooler]
he managed to destroy most of them." Since approximately
72 beer glasses are stored in the cooler this constitutes a
substantial amount of breakage, nevertheless, Maughan,
who witnessed the event, did not testify he reprimanded
McDermott for his negligence. McDermott, on the other
hand, credibly testified that when he first began work he
broke more than the normal amount of glasses but
thereafter broke no more than was usual and that the only
time anyone from management mentioned the matter, let
alone reprimand him, was in March when, as he broke a
glass, Walsh commented, "you are all thumbs." In regards
to the above-described beer glass episode McDermott
credibly testified that during the middle of February he
broke about 5 to 10 beer glasses as he placed them in the
cooler and that Maughan, who witnessed the incident,
made no comment. This is not surprising for it is
undisputed that McDermott was not at fault. The glasses
broke because the area in the cooler where they were
stacked in three tiers was uneven, thus causing the glasses
which McDermott was stacking to fall. It is undisputed
that the bartenders had been after management for quite
some time to remedy this situation. In sum, the record
overwhelmingly establishes that the matter of McDermott
breaking glasses was of little concern to Respondent and
played absolutely no part in his discharge.
that previously they had given him a discharge ultimatum or had spoken to
him in such a manner that he should have realized his job was in jeopardy.
30 The testimony of Respondent's witnesses that from the start of his
employment McDermott was prone to break an extraordinary large number
of glasses and that his problem became ever more acute starting in
November 1975 and that Respondent regarded the matter with concern is
belied by the fact that in the middle of December 1975 in an effort to find a
suitable person for night shift manager, Maughan and Walsh initiated an
interview with McDermott, among others, to determine if he was interested
in working for The Holding Company at the management level. If Maughan
and Walsh, at this time. felt McDermott was negligently breaking an
enormous number of glasses and viewed the matter with alarm, as they
testified, it is clear they would not have considered him as an applicant for a
management position. Moreover, during the interview. as McDermott
credibly testified. Maughan and Walsh told him "they were pleased with
Ihis I performance."
395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regarding McDermott's poor attitude, Maughan and
Walsh testified in effect that during his first 5 months of
employment he maintained a proper attitude, he was
gregarious and pleasant to customers and employees.
Suddenly in January 1976, according to Walsh, he
underwent a complete change in personality. In Walsh's
words McDermott became "moody," "depressed," and
"uncommunicative," very rarely speaking to anyone. He
"alienated" customers and employees because, as Walsh
testified, his attitude "affect[ed] the feeling in the restau-
rant. Gloom tends to spread gloom." Customers com-
plained, McElwaney testified, that McDermott was
"moody" and had a bad temper. Maughan testified that
"often times during the peak cocktail period" he observed
McDermott ignoring everyone and "staring off in space,"
and further testified that customers complained McDer-
mott was "cool" and "short" with them. In other words
after 5 months of employment McDermott underwent an
abrupt change in personality from a personable individual
to a "moody," "gloomy," "depressed," "uncommunica-
tive," "bad tempered," and "rude" individual. I think not.
Walsh, McElwaney, and Maughan, as they testified,
impressed me in manner and demeanor as more interested
in making a case for Respondent than in the truth. I am
persuaded they grossly exaggerated McDermott's failings. I
am sure, as shown by Walsh's remarks to McDermott at
the time of his February 9 transfer from the night shift and
his reassignment in late March to the day shift, that
Respondent was "somewhat" disturbed by McDermott's
attitude and did not regard him as one of its better
employees. However, as found supra, the record establishes
that subsequent to Walsh's February 9 criticism no one
from management reprimanded McDermott about his
attitude or otherwise indicated to him that his employment
was in jeopardy due to his attitude. Under these circum-
stances I cannot say the evidence which shows that
Respondent regarded McDermott as a problem employee
due to his unsatisfactory attitude is sufficient to rebut the
General Counsel's strong prima facie case that McDer-
mott's discharge was motivated in substantial part by
Respondent's union animus. Indeed, the General Counsel's
primafacie case is bolstered by the patently false reasons-
the breaking of glasses and the cash register shortages-
advanced by Respondent's witnesses during the hearing to
justify the discharge. Accordingly, I find that by discharg-
ing McDermott the Respondent violated Section 8(a)(3)
and (I) of the Act.
Dana Wilner
On August 15, 1975, Wilner began work for The Holding
Company as a cocktail and food waitress. Walsh testified
that the "main problems" with Wilner's work performance
involved "the service that she gave the tables and her
attitude towards the customers." He testified that com-
mencing in approximately January 1976 Wilner's perfor-
mance deteriorated and got progressively worse, that "her
overall waitressing ability was getting less and less
proficient through lack of attention," and although she was
not alienating employees, "she was very, very rude with
customers, very short with them, very unfriendly with
them." Before January, Walsh testified, Wilner was
"friendly" to the customers and "seemed to be having a
good time ... enjoying what she was doing," but starting
in January her performance progressively declined. No
customer complained to him personally, but Walsh
testified he observed Wilner's poor attitude and customers'
complaints were relayed to him by Maughan and McElwa-
ney. On six occasions, from February into April 1976,
McElwaney, according to Walsh, spoke to him critically
about Wilner's performance and, at the end of March,
recommended her discharge. Walsh refused to discharge
Wilner since he wanted to make an effort to get Wilner to
improve her performance because, as he testified, "at one
point in time I thought she was a very good waitress. She
had slipped downhill a lot." Walsh further testified he
"frequently" spoke to Wilner continuously about her
unsatisfactory performance up to the last day of her
employment.
Maughan testified that Wilner throughout her employ-
ment was inefficient in clearing customers' dirty dishes and
was "standoffish" and rude to customers. While there were
no customer complaints about her attitude when she first
began working, Maughan testified that thereafter between
8 and 10 customers complained to him she failed to give
them good service and/or was unfriendly and rude.
Maughan testified he considered Wilner's overall work
efficiency as so unsatisfactory that soon after she started
working in August 1975 he recommended her discharge to
Walsh. Wilner was not discharged because Walsh felt she
should be given a chance to improve her performance.
McElwaney, according to Maughan, spoke critically to him
about Wilner's performance three or four times during
February and March, the last conversation taking place
late in March when McElwaney recommended Wilner's
discharge. McElwaney told Maughan, "he did not like any
part of [Wilner's] performance." Maughan voiced his
agreement with McElwaney's sentiments and told him he
would discuss the recommendation with Walsh, which he
did. Nonetheless, Wilner was not discharged. In regards to
whether he spoke to Wilner personally about her unsatis-
factory performance Maughan testified that throughout
Wilner's employment he continually reprimanded Wilner
for not properly clearing dirty dishes from customers'
tables and also spoke to her about customers' complaints
that she was rude and, in this last respect, either in
February or March, told Wilner she would be discharged if
her attitude toward the customers did not improve.
McElwaney testified Wilner was the poorest of all the
waitresses because she was late for work, rude, and
unfriendly to the customers, was slow in removing dirty
dishes from customers' tables, and was slow in giving the
customers their checks when they wanted to leave. When
he assumed the position of manager of The Holding
Company in January 1976, McElwaney testified, he
promptly came to the conclusion Wilner was an unsatisfac-
tory employee and, in speaking about her work ability to
the other waitresses, it is undisputed that he described her
as a "shitty waitress." In January 1976, McElwaney
testified he recommended to both Maughan and Walsh
that Wilner be discharged. Walsh rejected this recommen-
dation but instead told McElwaney to teach Wilner to
become a better waitress. Thereafter, McElwaney testified
396
THE HOLDING COMPANY
he spoke about Wilner critically to Maughan and Walsh
approximately a dozen times, the last time at the end of
March when once again he recommended Wilner's dis-
charge. Nevertheless, Wilner was not discharged. Also,
according to McElwaney, he personally spoke to Wilner
about her poor work performance three or four times, the
last time in the middle of March when he warned her if her
performance failed to improve she would be fired.
The composite testimony of Walsh, Maughan, and
McElwaney is that almost throughout Wilner's entire
period of employment management regarded her as an
undesirable employee who, from the start of her employ-
ment, was continually on the brink of discharge because
she was inattentive and rude to customers, late for work,
and did not clear her tables of dirty dishes properly. In
only one respect, involving the matter of tardiness, did
Wilner refute this testimony. On this subject, McElwaney
initially testified Wilner was late for work more than any
other waitress except one and specifically testified she was
late for work by 15 minutes once or twice a month
throughout her employment but later changed this to once
or twice during one particular month. Neither Walsh nor
Maughan, in their respective testimony, mentioned Wil-
ner's alleged tardiness, nor is there any contention by
McElwaney that he ever spoke critically to Wilner about
her tardiness. Wilner credibly testified she was only
"occasionally" late for work and that McElwaney spoke to
her about this only once when she was 15 minutes late-the
latest she ever was-at which time McElwaney simply
commented "you're kind of late today." Under the
circumstances I find Respondent did not regard Wilner's
tardiness for work as a serious matter and it played
absolutely no part in her discharge.
In sum a composite of the uncontradicted testimony of
Walsh, Maughan, and McElwaney establishes that virtual-
ly throughout Wilner's entire 8 months of employment she
was regarded by management as an unsatisfactory employ-
ee who was continually on the brink of being discharged
because of the manner in which she waited on customers
and her inability to properly clear tables.3' It is also
undisputed that Wilner's conduct immediately prior to her
discharge was no more unsatisfactory than it had been in
the past. In other words there is no evidence of any specific
act or acts of misconduct which either triggered the
discharge or was the proverbial straw which broke the
camel's back. The essential question for decision is, what
motivated Walsh's decision to hastily discharge Wilner on
the evening of April 14 in the middle of a workweek at a
time when he had not even hired a replacement. Walsh in
effect testified the only difference between the conditions
which existed on April 14 and those existing previously was
that Walsh and Maughan had decided to discharge
Matthews, hence, according to Walsh and Maughan, so
long as they were discharging one employee it would be no
:" In so concluding I have considered the fact that the demeanor of
Walsh, Maughan. and McElwaney indicated that in general they were not
trustworthy witnesses. Also I have taken into account the fact that there is a
strong indication in the record that their testimony concerning Wilner's
performance and attitude was exaggerated inasmuch as it is undisputed that
Maughan signed a letter of recommendation for Wilner, stating that Wilner
"has performed her duties well and is regarded as a valued employee."
Maughan did not explain the circumstances surrounding this undated letter.
more "disruptive" 3 2 to fire all four of the company's
unsatisfactory employees at the same time. This explana-
tion is absurd and, in advancing it neither Walsh nor
Maughan was a convincing witness.
The foregoing, plus the fact that Wilner was discharged
at the same time as three other employees all of whom were
discharged because of their union sympathies and activi-
ties, persuades me that Respondent has failed to rebut the
General Counsel's prima facie showing that Wilner's
discharge was unlawfully motivated and, I find, that in
discharging Wilner Respondent seized upon her poor work
record as an opportunity to rid itself of an active prounion
employee. Accordingly, I find that by discharging Wilner
Respondent violated Section 8(a) (3) and (1) of the Act.
The cases of Wilner and McDermott are troublesome
ones because an employer does not have to tolerate poor
performance merely because the offenders are leading
union adherents. Here even prior to Wilner's or McDer-
mott's union activities management regarded their work
performance as unsatisfactory, in Wilner's case to a far
greater degree than in McDermott's and threatened Wilner
with discharge if she did not improve. Nevertheless we
have been repeatedly advised, as stated by the court in
N.LR.B. v. Ayer Lar Sanitarium, 436 F.2d 45, 50 (C.A. 9,
1970):
[T]he cases are legion that the existence of a justifiable
ground for discharge will not prevent such discharge
from being an unfair labor practice if partially
motivated by the employee's protected activity; a
business reason cannot be used as a pretext for a
discriminatory firing.... The test is whether the
business reason or the protected union activity is the
moving cause behind the discharge.... In other
words, would this employee have been discharged but
for his union activity?. . . [Citations omitted.]
Here I am persuded for the reasons set forth above that
Respondent's union animus was at least a partial motiva-
tion in Wilner's and McDermott's discharges and that they
would not have been discharged but for their union
sympathies and activities.
V. THE REPRESENTATION CASE
The Union urges in its objection to the representation
election that by discharging Dana Wilner Respondent
prevented the employees from freely exercising their choice
in the representation election. Also, before me for decision
are the challenges to the ballots cast by Dana Wilner,
Winston Matthews, Jane Findlay, and Thomas McDer-
mott.
I have found, supra, Respondent unlawfully discharged
Wilner, Matthews, Findlay, and McDermott in violation of
Nonetheless, since Wilner did not deny the above-described threats and
reprimands by management and since employee Lochrie, a witness for the
General Counsel, corroborates McElwaney that as early as January 1976 he
regarded Wilner as an unsatisfactory employee and expressed this thought
openly, I have credited the uncontradicted testimony of Walsh. Maughan.
and McElwaney concerning Wilner's performance.
32 Walsh defined "disruptive" as. "the attitude, the conversations that
take place between the other help" about a discharge.
397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(3) and (1) of the Act, therefore, I shall
recommend the challenges to their ballots be overruled.
Respondent urges that the Union's objection not be
considered on its merits because by proceeding to an
election while the unfair labor practice case involving
Wil.ier's discharge was pending the Union waived its right
to base an objection to the election on this termination
and, in any event, it argues that Wilner's discharge did not
occur within the critical period of time.
The contention that the Union waived its right to use
Wilner's discharge as a basis for setting aside the election is
based upon an erroneous view of the law, see Owens-
Corning Fiberglas Corporation v. N.LR.B., 435 F.2d 960
(C.A. 4, 1970), thus I reject it.
Likewise, I reject the further contention that Wilner's
termination did not occur within the period of time critical
to the election. The law is settled "that the date of filing of
the petition . . . should be the cutoff time in considering
alleged objectionable conduct in contested cases." The
Ideal Electric and Manufacturing Company, 134 NLRB
1275, 1278 (1961). In the instant case on April 15 the Union
filed its representation petition. Respondent argues that
Wilner "was actually terminated on April 14." The record
establishes that on April 14 between the hours of 8 and 9
p.m., Respondent decided to discharge the four discrimina-
tees, including Wilner, and prepared their final paychecks
which were immediately deposited in the mail and, at that
time (the evening of April 14) by telephone notified three
of the discriminatees that they were discharged. Respon-
dent was unable to contact Wilner since it did not have her
phone number. Wilner was told she was discharged the
next morning when she arrived for work. There is no
evidence that on the evening of April 14 Respondent
informed any of its employees about Wilner's discharge.
The essential question for decision is whether Respon-
dent's decision to discharge Wilner which was reached
outside of the critical period but not communicated to
Wilner until the start of the critical period, can be a basis
for setting aside the election. I am of the view that Wilner's
discharge must be considered on its merits as a basis for
setting aside the election. Thus, it is clear from Walsh's
words that when, on April 15, he notified Wilner about her
discharge that Respondent believed the discharge was not
effective until it was actually communicated to Wilner.
Walsh, as Wilner credibly testified, told her she was
discharged but would have been discharged earlier, the
previous night, if the company possessed her phone
number. Indeed, the Court of Appeals for the Sixth Circuit
has held that "In order for the termination of an
employment relationship to be effective, the intent to
terminate must be communicated to the other party by
some affirmative action." Westchester Plastics of Ohio, Inc.
v. N.L.R.B., 401 F.2d 903, 908 (1968), citing Miami Rivet
Co., 147 NLRB 470, 483-484 (1964). In any event, in
deciding whether alleged objectionable conduct has oc-
curred within the critical period the Board has rejected the
argument that the date a decision was effective is the
3:1 The Board has held in West Texas Equipment Company, 142 NLRB
1358. 1359 (1963), that employer conduct occurring on the day a
representation petition was filed, although prior to the time of its filing,
takes place within the critical period. The Board refuses to fractionalize the
significant date, instead it has consistently held that "the
most significant date would be when the information as to
the [decision] was first conveyed to the employees,"
Stafford Furniture Corporation and Futorian Manufacturing
Company, 116 NLRB 1721 (1956), fn. 3 1722, (a case which
involved an increase in wages decided upon prior to the
filing of a representation petition but not announced until
the petition had been filed). Here, the decision to discharge
Wilner was not communicated to either Wilner or other
employees until April 15, the date the Union filed its
representation petition.3 3 For these reasons I find Wilner's
discharge occurred within the period of time critical to the
election and since, as found supra, her discharge violated
Section 8(a)(3) and (1) of the Act I further find that by
discharging Wilner, the leading union adherent, the
Respondent interfered with the conduct of the election.
Based on the foregoing I shall recommend that the Board
overrule the challenges to the ballots cast by McDermott,
Matthews, Wilner, and Findlay in the election held on
June 12 and 15, 1976, and shall direct that their ballots be
opened and counted. In the event that each one of these
ballots was cast for the Union, thereby giving the Union a
majority of the votes cast despite the preelection miscon-
duct by the Respondent found herein, I shall recommend
that the Board certify the Union as the bargaining
representative of the Respondent's employees.
In the event, however, that any one of these ballots was
cast against the Union, or proves to be invalid for any
reason, I shall recommend that the Board consider the
matter of whether the Respondent's unfair labor practices
in Cases 20-CA-11323 and 20-CA-11693 are sufficient so
as to warrant a remedial bargaining order and, if so, to
dismiss the petition in the representation case but, if not, to
direct a new election when the Regional Director advises
the Board that the circumstances permit a free expression
by the employees of their desires with respect to represen-
tation.
CONCLUSIONS OF LAW
1. The Respondent, Gary Maughan and Michael
Walsh, et al., d/b/a The Holding Company, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, Hotel and Restaurant Employees and
Bartenders Union, Local 2, Hotel and Restaurant Employ-
ees and Bartenders International Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By warning an employee that it was futile for the
employees to support the Union because Respondent
would never agree to a contract with any union, Respon-
dent engaged in unfair labor practices within the meaning
of Section 8 (aX)(l) of the Act.
4. By threatening to discharge an employee because of
his union sympathies or activities and threatening to
impose adverse working conditions if the employees
supported the Union, Respondent has engaged in unfair
day the petition is filed. Accordingly, even assuming, Wilner's discharge
took place on April 15 prior to the time the petition was filed it does not
affect the validity of the Union's objection.
398
THE HOLDING COMPANY
labor practices within the meaning of Section 8(aX I) of the
Act.
5. By interrogating an employee about her union
activities and sympathies and about the union activities
and sympathies of other employees, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
6. By soliciting an employee to keep employees' union
activities under surveillance and to keep management
informed about the union activities and sympathies of
employees, Respondent has engaged in unfair labor
practices within the meaning of Section 8(aX)(1) of the Act.
7. By threatening employees who voted in favor of the
Union with economic reprisals, Respondent has engaged in
unfair labor practices within the meaning of Section 8(aXI)
of the Act.
8. By threatening employees that Respondent would
either sell or get rid of the business if the Union won the
representation election, Respondent has engaged in unfair
labor practices within the meaning of Section 8(aX I) of the
Act.
9. By discharging Winston Matthews, Jane Findlay,
and Thomas McDermott on April 14, 1976, and Dana
Wilner on April 15, 1976, because of their union sympa-
thies and activities, Respondent has engaged in unfair
labor practices within the meaning of Section 8(aX3) and
(I) of the Act.
10. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found Respondent has engaged in unfair labor
practices violative of Section 8(aX3) and (1) of the Act, I
shall recommend that it cease and desist therefrom and
take certain affirmative action in order to effectuate the
policies of the Act.
Having found Respondent discriminatorily discharged
employees Winston Matthews, Dana Wilner, Thomas
McDermott, and Jane Findlay, I shall recommend that
Respondent offer each of them immediate and full
reinstatement to their former jobs or, if these jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges, and
make them whole for any loss of earnings they may have
suffered by reason of such discrimination by payment of a
sum of money equal to that which they normally would
have earned as wages from the date of their discharges to
the date of said offers of reinstatement, 3 4 less their net
earnings during such period, with backpay computed on a
quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950), and with
i4 There was testimony that in September 1976 Respondent changed its
lunch menu to a more elaborate bill of fare and hired a professional chef.
Whether this would have resulted in the termination of Winston Matthews
during the normal course of business is a matter for the compliance stage of
this proceeding.
3. During the period March 29 through 31. 1976. 15 of 24 unit employees
had signed cards: 16 of 25 had signed cards during the period Apnl I
through 4. 16 of 26 had signed cards dunng the penod April 5 through 9; 16
of 27 had signed cards during the period April 10 through 12: and 16 of 28
had signed cards during the period April 13 through 14.
interest thereon as prescribed by the Board in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962).
As the unfair labor practices committed by Respondent
were of a character which go to the very heart of the Act, I
shall recommend that it cease and desist therefrom and in
any other manner from interfering with the rights of
employees guaranteed by Section 7 of the Act. N. LRB. v.
Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941).
The General Counsel additionally seeks a remedial
bargaining order. The law is settled that such an order is
appropriate where a respondent employer commits perva-
sive violations of Section 8(aXl) and (3) of the Act which
preclude the holding of a fair rerun election, the union files
meritorious objections to set aside the election, and the
union at one point of time was designated as the exclusive
bargaining representative by a majority of the employees in
an appropriate unit.
In the instant case the Union as found, supra, filed a
meritorious objection to the representation election. Also
the record establishes that immediately prior to the
unlawful discharges involved herein, a majority of the
employees in an appropriate unit signed cards designating
the Union as their bargaining representative. In this regard,
the parties agree that all the regular and part-time
employees employed at The Holding Company excluding
the manager, office clerical employees, guards, and
statutory supervisors constitute an appropriate unit. The
record establishes that from March 29 through April 14 a
majority of the bargaining unit employees signed union
authorization cards. 35 The cards, which are identical,
unambiguously recite that the card signer authorizes the
Union to act as the employees' representative for purposes
of collective bargaining.
Respondent adduced testimony surrounding the cards
signed by employees Barnett, Purcell, York, Gaymen, and
Menaker. I am of the opinion that the representations
made to these card signers do not suffice to "deliberately
and clearly canceled" the unambiguous language of the
cards. N.L.R.B. v. Gissel Packing Co., Inc., et al., 395 U.S.
575, 606 (1969).
Barnett testified he asked McDermott for a card, that
McDermott gave him one and told him, "take it home read
it; it's to petition for an election." Barnett took the card
home, read and signed it,-and returned it to McDermott
without any further conversation. s
Wilner, who solicited the majority of the cards involved
in this case, including the ones signed by Purcell, York,
Gaymen, and Menaker, testified she had no independent
recollection of what she specifically told the employees, but
credibly testified that generally she asked the employees to
read the card, told them its purpose "was for collective
bargaining, to have the Union represent us," and also told
the employees that one reason to sign the card was to
36 Barnett at vanous times answered "yes" when asked if McDermott
told him the "sole" or "primary" purpose of the card was to petition for an
election. The testimony set out in the text was given by Barnett when asked
in a nonleading manner to testify about what took place and what was
stated in connection with his signing of the union card. Barnett convincingly
testified that while he positively remembers McDermott telling him, as
described above, that the card was "to petition for an election," he does not
remember McDermott using the word "sole" in this connection.
399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facilitate the filing of a petition to have an election and also
told them that if more than a majority of the employees
signed cards the Union would go to the Employer and ask
for voluntary recognition without an election.
In connection with Purcell's card Wilner testified she had
no independent recollection of what words she used when
she solicited this card and further testified it was "possi-
ble," but unlikely, that she told Purcell that if she signed a
card "we can have an election at The Holding Company."
Purcell did not testify.
In connection with Gaymen's card Wilner testified she
thought she told Gaymen "we are trying to have the Union
represent us. If you would like to have the union represent
us in collective bargaining sign the card." She further
testified she may also have told Gaymen, "we're trying to
have an election at The Holding Company. Other employ-
ees have signed the card, and that's what the purpose of the
card is," but testified she does not believe she made this
statement. Gaymen did not testify.
Wilner testified that when soliciting York to sign a card
she probably "said something like the following to him:
Stephen, sign this card, the purpose being that when you
sign it, we can then have an election at The Holding
Company." York, a witness in this proceeding, was not
questioned about this matter.
Wilner testified that when soliciting Menaker to sign a
card, "I may have said that one of the reasons for signing
the card was to have an election," but testified she was
without an independent recollection of whether she in fact
made this statement. She specifically denied having told
Menaker that the "real reason for signing the card is to
have an election." Menaker did not testify.
Based on the foregoing I find that the totality of the
circumstances surrounding the card solicitation involving
employees Barnett, Purcell, Gaymen, York, and Menaker
does not add up to an assurance to the card signer that his
or her card will be used for no purpose other than to help
get an election. I note additionally that the cards state
unambiguously that the cards are for representation
purposes. Consequently I find that the cards signed by
these employees, as well as the other cards in evidence in
this proceeding, were proper expressions of support for
representation purposes. N.LR.B. v. Gissel Packing, supra
at 606-608.
Respondent contends that several of the authorization
cards should be invalidated in light of N.LR.B. v. Savair
Manufacturing Co., 414 U.S. 270 (1973). In Savair the
Supreme Court held that a union interferes with an election
when it offers to waive initiation fees only for those who
sign union authorization cards before the election. The
Court was concerned with the Section 7 right of employees
to refrain from union activity and with the buying of
endorsements through the waiver of initiation fees to those
joining the union before the election and thereby painting a
false portrait of employee support. The Court, while
recognizing a legitimate interest in waiving fees, stressed
that there is no legitimate union interest which justifies
17 What Wilner "may" have stated to York does not constitute an
admission that Wilner in fact made the statement.
a, Inland Shoe Manufacturing Co., Inc., 211 NLRB 724 (1974); D.A.B
limiting waiver offers to those signing cards prior to the
election.
In the instant case the evidence adduced by Respondent
in support of its contention that the Union improperly
waived initiation fees is based upon its examination of
Wilner, the employee who initiated the Union's organiza-
tional campaign and the one who solicited most of the card
signers. On March 12, when Wilner initially visited the
Union's offices she was informed by the union representa-
tives that "there was a possibility" that employees who
signed authorization cards before the election "might have
their initiation fees waived." Thereafter, Wilner on one
occasion, March 29, at the organizational meeting held at
McDermott's home, mentioned the subject of an initiation
fee waiver to employees. During the meeting which was not
attended by any union representatives Wilner told the
employees that "the union officials had said there was a
possibility of union initiation fees being waived." There is
no evidence that Wilner made this statement in the context
of an attempt to convince employees to sign union
authorization cards. Respondent, in questioning Wilner,
made no effort to establish the context of the remark. The
record establishes that of the card signers, three (Purcell,
Gaymen, and York) signed cards at this meeting and one
(Blake) who attended the meeting signed his card April 1.
The record is silent as to whether Wilner's statement about
initiation fees was made before or after Purcell and
Gaymen signed their cards. In York's case Wilner testified
she solicited him to sign the card during the meeting and
"may have said, [to York] we may have our initiation fees
waived."37 York, a witness for the General Counsel, who
testified about another matter was not interrogated by
Respondent about the circumstances surrounding his card
solicitation.
I find that the statement made to Wilner that "there was
a possibility" that employees who signed authorization
cards before the election "might have their initiation fees
waived," to be proscribed by Savair, hence, Wilner's card,
which she signed subsequently, is invalidated and may not
be used in computing the Union's majority status.
However, Wilner's statement to the employees made at the
March 29 meeting that "the union officials had said there
was a possibility of union initiation fees being waived" did
not transgress the specific mandate of Savair. Wilner's
statement did not in any way imply that the waiver of
initiation fees was limited to those employees who signed
union cards, let alone those who signed cards before the
election. Under the circumstances the instant case is easily
distinguishable from those Board Decisions cited by
Respondent38 in which a union's offers to waive fees were
found to have created an ambiguity as to when an
employee would have to join the union, or sign a union
card, in order to avoid paying initiation fees. See Allied
Metal Hose Company, Inc., 219 NLRB 1135 (1975). ("If we
join the union ... we don't have to pay any initiation fee,"
held not to constitute an impermissible offer to waive
initiation fees.) Accordingly, even assuming the cards of
Purcell and Gaymen were signed following Wilner's
Industries, Inc., 215 NLRB 527 (1974); Deming Division, Crane Co., 225
NLRB 657 (1976).
400
THE HOLDING COMPANY
statement, they are not tainted by it nor were the cards of
York and Blake.
In sum, the record establishes that one of the authoriza-
tion cards, the one signed by Wilner, is invalid and may not
be used in computing the Union's majority status.
Nevertheless, as found supra, even without Wilner's card
the Union was designated as the bargaining representative
by a majority of the company's employees in an appropri-
ate unit from March 29 through April 14, 1976, and as
found supra, filed a meritorious objection to the representa-
tion election. In these circumstances a remedial bargaining
order would ordinarily be appropriate if the unfair labor
practices committed by Respondent are sufficient to
warrant such a remedy under the principles set forth by the
Supreme Court in N.LR.B. v. Gissel Packing, supra.
However, a bargaining remedy is premature in this case
because it is highly likely that the Union will receive a
majority of the ballots cast in the representation election
and be certified by the Board. Cf. Free-Flow Packaging
Corporation, 219 NLRB 925 (1975), and M.S.P. Industries,
Inc., d/b/a The Larimer Press, 222 NLRB 220 (1976). In
the event this does not occur or, one or more of the
unlawful discharges are found without merit in enforce-
ment proceedings, it will then be time enough for the Board
to decide whether the unfair labor practices are sufficient
to warrant a bargaining remedy. Of course if Wilner's
discharge is ultimately found to be lawful the Union is not
entitled to a bargaining remedy under any circumstances
inasmuch as there would be no meritorious objection
before the Board to set aside the representation election.
Irving Air Chute Company, Inc., 149 NLRB 627 (1964),
enfd. 350 F.2d 176 (C.A. 2, 1965).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 39
Respondent Gary Maughan and Michael Walsh, et al.,
d/b/a The Holding Company, San Francisco, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of, Hotel and Restaurant Employees and Bartenders
Union, Local 2, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, or any other
labor organization, by discharging its employees, or
otherwise discriminating against them in any manner with
regard to their hire or tenure of employment or any term or
condition of employment because of their union member-
ship or activities.
(b) Interrogating employees about their union member-
ship, sympathies, or activities or about the union member-
ship, sympathies, or activities of other employees.
:" In the event no exceptions are 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.
(c) Threatening employees with economic reprisals
including onerous working conditions, discharge or the sale
of the business if they join or support the above-named
Union, or any other union.
(d) Telling employees it would be futile for them to
support the above-named Union, or any other union,
because it would never agree to a contract with a union.
(e) Soliciting employees to keep employees' union
activities under surveillance and to keep management
informed about the employees' union membership and
activities.
(f) 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
necessary to effectuate the policies of the Act:
(a) Offer Jane Findlay, Dana Wilner, Thomas McDer-
mott, and Winston Matthews immediate and full reinstate-
ment to their former positions or, if such positions no
longer exist, to substantially equivalent employment,
without prejudice to seniority or other rights and privileges
previously enjoyed, and make each 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."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amounts of backpay due and the rights of
reinstatement under the terms of this Order.
(c) Post at its place of business in San Francisco,
California, copies of the attached notice marked "Appen-
dix."40 Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly signed by
Respondent's representatives, shall be posted by Respon-
dent 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. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER DIRECTED AND ORDERED that in Case 20-
RC-13488 the Regional Director for Region 20 shall,
pursuant to the Rules and Regulations of the Board, within
ten (10) days from the date of this Direction, open and
count the ballots of Jane Findlay, Thomas McDermott,
Dana Wilner, and Winston Matthews, and thereafter shall
prepare and serve upon the parties a supplemental tally of
ballots, including therein the count of said challenged
ballots and that, in the event the Union has lost -the
election conducted on June 12 and 15, 1976, among the
40 In the event that the Board's Order is enforced by a Judgment of the
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."
401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of Respondent, that this election be, and it
hereby is, set aside.41
41 In the event that this election is set aside, we shall then consider
whether Respondent's unfair labor practices found to have been committed
in Cases 20-CA-11323 and 20-CA-11693 are sufficient to warrant a
remedial bargaining order and, if such relief is warranted, we shall dismiss
the representation petition or, if a remedial bargaining order is not
warranted, we shall direct a new election when the Regional Director
advises us that the circumstances permit a free expression by the employees
of their desires with respect to representation.
402