Captain Nemo's

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 537 (N.L.R.B. 1981)

CAPTAIN NEMO'S
Valley Plaza, Inc. d/b/a Captain Nemo's and Cater-
ing Industry, Hospital Workers and Bartenders
Union, Local 688, Hotel and Restaurant Em-
ployees and Bartenders International Union,
AFL-CIO. Case 7-CA-17126
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 25, 1981, Administrative Law
Judge Marion C. Ladwig issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Valley Plaza,
Inc. d/b/a Captain Nemo's, Midland, Michigan, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order.
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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In addition, we find no basis for, and hereby reject, Respondent's asser-
tion of bias and partiality on the part of the Administrative Law Judge.
N.LR.B. v. Pittsburgh Steamship Company, 337 U.S. 656 (1949).
2 Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This
case was heard at Midland, Michigan, on July 1-3 and
7-10, 1980. The charge was filed by the Union on No-
vember 30, 1979,1 and the complaint was issued on Janu-
I All dates are in 1979 unless otherwise indicated
ary 15, 1980, and amended at the hearing. The case arose
when the Company, which operates a nonunion motel-
restaurant-theater-recreational complex, discharged and
laid off a total of eight union supporters during the
Union's organizing campaign at Captain Nemo's steak-
house restaurant. The primary issues are whether the
Company, the Respondent herein, (a) discriminatorily
discharged five of its best dinner waitresses when they
stayed off the job in protest to being assigned a split
shift, (b) discriminatorily discharged and laid off a
busboy and two cooks, (c) solicited and remedied com-
plaints, established a new "Open Door" policy for griev-
ances, and announced wage increases to undermine sup-
port of the Union, (d) coercively photographed pickets,
interrogated and threatened employees, and engaged in
other coercive conduct, and (e) unlawfully refused to
bargain and destroyed the Union's majority support, pre-
venting a fair election and necessitating a bargaining
order, in violation of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and the
Company, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a Michigan corporation, is engaged in
operating a motel, restaurants, and other facilities in Mid-
land, Michigan, where it annually receives in excess of
$500,000 in goods and materials, over $50,000 of which
is received directly from outside the State. The Compa-
ny admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
11. ALLEGED UNFAIR LABOR PRACTICES
A. Antiunion Background
The Valley Plaza complex includes the Ramada Inn
with Captain Nemo's restaurant on the second floor, the
Train Station restaurant, Goodie Shop, Great Hall ban-
quet hall, commissa.y, Valley Lanes bowling alley,
Studio M Theater, bars and cocktail lounges, ice cream
parlor, arcade, and various recreational facilities.
1. Conduct outside limitation period
There have been several unsuccessful union organizing
campaigns at Valley Plaza. One was in 1975 when Lynn
Nikowski was manager of Captain Nemo's. As credibly
testified by senior waitress Sandra Valead (one of the
five discharged dinner waitresses who impressed me
most favorably as being an honest, forthright witness),
Manager Nikowski asked, in her office, "if I had heard
about anybody trying to start a union, if I knew who
was trying to start one" and "did I know anything about
it." Later, in each of two other union organizing cam-
paigns Nikowski's successor, Manager Jack Young, inter-
258 NLRB No. 76
537
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rogated Valead in the office concerning what she had
heard about the organizing.
In July 1978, on the first day of employment for wait-
ress Deborah Cheek (another one of the discharged wait-
resses who impressed me as being an honest witness), she
asked Manager Kristine Selleck (who later discharged
her) if the restaurant was a "union house." Selleck an-
swered no, and instructed her, "Don't ever mention that
in here again." Manager Selleck repeatedly cautioned
other employees about a union. As cook Marcia Murphy
(later laid off by Selleck) credibly testified, whenever
one of the employees would become angry and comment
that "if we had a union in here, things would be a little
different," Selleck repeatedly would say, "Don't even
speak about the union, absolutely no union." On many
occasions Selleck "told us [if "people tried to start a
union"] that we would definitely lose our job and if it
happened while she was there, she would lose hers also."
In addition, Murphy would hear Selleck ask an employee
to report to her on union activities. (Concerning Man-
ager Selleck's denials, her credibility is discussed later.)
2. Other evidence of union animus
Meanwhile, the Company was endeavoring to stop an
organizing drive elsewhere in Valley Plaza. In June
1979, Valley Plaza General Manager Gary Pearson met
Commissary Manager Robert Hammontre in the hallway
between the commissary and Train Station restaurant. As
credibly testified by Hammontre (who appeared by his
demeanor on the stand to be a most conscientious wit-
ness, endeavoring to give a true account of what hap-
pened), Pearson stated that he had been informed that
there were two of Hammontre's commissary employees who
were engaged in union activities, and that Hammontre was
to terminate them in such a way that the Company
would not be required to pay them unemployment bene-
fits. (I discredit Pearson's denials. From his demeanor, he
appeared more concerned with supporting the Compa-
ny's cause than being a candid witness.) During the next
6 weeks, before the two employees were discharged,
either Food and Beverage Manager Armond Prasch
(Hammontre's immediate supervisor) or Administrative
Assistant Susan Houghtaling (then in charge of sales)
would question Hammontre at least once or twice a
week about whether or not he had made any progress in
carrying out Pearson's instructions, and Pearson himself
asked Hammontre a time or two "why these people are
still there." I discredit the denials. (The legality of the
discharge of these two commissary employees is not in
issue.)
In the meantime, in the middle or latter part of June,
Ramada Inn Manager Dorothy Trombley, speaking "as
one manager to another," told Hammontre "she felt she
had a union problem there within the motel," stated she
felt that a porter was engaged in union activities, and ex-
pressed a desire to find some reason to discharge him.
The two managers decided that the porter would be as-
signed to shampooing the carpeting in the Great Hall en-
trance, and that "If he left his work area" or "conferred
with people in the Commissary . . . I was to contact her
immediately so she would come over and give him a
verbal warning," before a written warning and then ter-
mination. Later, when Hammontre reported that the
porter had completed the job without leaving the area or
contacting anybody, Trombley responded, "I guess I had
better find a different way to take care of this situation."
(I discredit Trombley's denial that she ever told Ham-
montre she wanted to find a reason to discharge the
porter.)
Beginning about the middle of July, Food Manager
Prasch questioned Manager Hammontre about union ac-
tivities "on the other side of the Plaza up at Nemo's."
Hammontre's fiancee, Kristine Randall, was employed as
a dinner waitress at Captain Nemo's. About two or three
times over a period of about a month, as Hammontre
credibly testified, Prasch asked him if Randall happened
to "make a comment about the union," and Hammontre
answered no. Once in July, in the commissary kitchen,
Prasch informed Hammontre "that there were still union
activities going on in the Plaza, but he thought he had
things pretty well under control because he had a direct
source of information." (Emphasis supplied.) Prasch ex-
plained that "there were people in Captain Nemo's in the
day kitchen and cooking crew that were friends with indi-
viduals within the Commissary, close personal friends,"
and "they kept him aware of what the union activities were
on that side of the Plaza." (Emphasis supplied.) The
Ramada Inn and Captain Nemo's are located a consider-
able distance from the commissary. (Prasch terminated
Hammontre on August 15.)
3. Conduct within limitation period
It was in this context that Captain Nemo's manager,
Selleck, interrogated senior dinner waitress Valead about
the union campaign. In June or July, Selleck called
Valead to her office, "asked me if I had heard anything
about a union being started at the motel. She asked me if
anybody had contacted me and tried to get me to sign
up, and she asked me if I would tell her if anybody did
.... I told her I would." (Selleck first testified, "I
imagine I did" have discussions with employees regard-
ing unions in the period of June or July, and "I am sure
I asked what other people thought about it, but it was
never directly connected with a specific union at Captain
Nemo's." On cross-examination she denied telling em-
ployees that she would appreciate them letting her know
if they heard anything about a union; and when asked if
the subject of the union came up around June or July,
she claimed, "I don't recall when the subject came up. I
said the union was often a topic of conversation. It could
have been in May, February, August or any time." She
further claimed that, when the subject of the Union
would come up with employees, "I would just listen to
what they had to say and that was it. I never discussed
anything with them." Yet she later testified that in the
conversation with employees about what a union would
do "if there was a union at Valley Plaza" and how the
employees would be benefited, "I can't say that I have
never responded to them. I am sure that I did, but what
the comments would have been, and my responses would
have been, I can't remember." I credit Valead's testimo-
ny and find that the interrogation tended to be coercive
538
CAI'lAIN NN()'S
in the exercise of employee Section 7 rights, violating
Section 8(a)(l) of the Act.
Around this same time (about a year after dinner wait-
ress Cheek was employed in July 1978), Manager Selleck
indicated her concern to Cheek and dinner waitress
Bonnie Bassett (two of the five waitresses Selleck dis-
charged on November 6) upon learning that Cheek had
previously been a union waitress. As Cheek credibly tes-
tified, the three of them were talking in the Little Chef's
restaurant in Midland when "Bonnie asked Kris if she
ever really checked our references. Kris said yes for
Bonnie, but no for mine because mine was from New
Jersey." Cheek mentioned "that the place I did work last
was a union house, and Kris was very surprised and said
well, that wasn't on your application. And I said the
reason it was not was because the way it was asked on
the application was are you now a member of a union,
and at the time that I filled out the application, I was
not." (Selleck testified, "It is possible, but I really don't
recall" a conversation there about Cheek's application.)
The employment application which the Company was
using in July 1978 (outside the 10(b) limitation period)
concluded with the question, "Give name of any labor
organization of which you are a member," with the local
name, city, and state. (G.C. Exh. 3.) The employment
application in use between March 1979 and February or
March 1980 (the complaint herein was issued on January
15, 1980) similarly asked about union membership.
Prominently placed about the middle of the first page
(G.C. Exh. 4) was the word "Union," followed by a long
line for the answer. I find it clear that this unlawful ques-
tion about the applicant's union affiliation was a form of
coercive interrogation which tended to interfere with
employee Section 7 rights, and therefore violated Section
8(a)(1) of the Act.
Finally, in late September or early October (about a
month before dinner waitresses Valead, Bassett, and
Cheek went to the union hall requesting representation),
Manager Selleck warned waitress Pamlla Shaver (one of
the five discharged dinner waitresses) of getting into
trouble if she continued to refer to "Sandy" Valead as
the union steward. (As Shaver testified, "If Sandy would
go to Kris [Selleck] with a problem, Kris would listen to
her more and we would get more results"; Selleck ad-
mitted that the other waitresses looked on Valead as a
leader, and that they used her as an intermediary be-
tween them and Selleck.) On this occasion Shaver jok-
ingly referred to Sandy Valead as our "union steward"
and "Kris cut me short and said not to say that, talk
about unions or refer to Sandy as a union steward be-
cause I would get into trouble if I continued to do that."
(Shaver appeared to be a most credible witness on the
stand. Selleck denied recalling the conversation.)
4. Summary
Thus, before the Union began a separate organizational
campaign in the fall of 1979 among the employees at
Captain Nemo's restaurant, General Manager Pearson,
Food Manager Prasch, Manager Selleck, and other com-
pany supervisors had actively opposed the formation of a
union at Valley Plaza. Not only had these members of
management interrogated employees about union activi-
ties, requested employees to report mon uch acivities, in-
structed( them not to mention a union on the premises,
warned employees of the loss of jobs i they tried to start
a union, plotted to find pretexts for discharging union
supporters, and warned an employee of getting into trou-
ble if she continued to refer to the senior dinner waitress
as the union steward, but Prasch (Selleck's immediate su-
perior) also bragged that he had a "direct source of in-
formation" on union activities in Captain Nemo's kitchen
and cooking crew.
B. Divcharge of Five Dinner Waitrese.
1. The November 6 discharge
The seven full-time and two part-time dinner waitress-
es at Captain Nemo's were the employees with the high-
est income--"mostly tip money." It was not unusual for
them to make as much as $50 to $70 a night in tips. For
various reasons (babysitting problems, school schedule,
long hours, fatigue, low lunch tips, etc.), the dinner wait-
resses objected to working a split shift.
In March the Company began serving lunch 5 days a
week, Monday through Friday. Selleck gave the break-
fast waitresses extensive training in serving liquor and
taking orders to work as lunch waitresses. When addi-
tional waitresses were needed at lunch, she usually ob-
tained them by asking dinner waitresses to volunteer.
The only dinner waitresses who worked more than an
occasional lunch were Valead and Bassett, both of whom
requested such assignments in September to earn more
money for a vacation. Upon their return in early Octo-
ber, they continued to be assigned from one to three
lunches a week, and they complained to Selleck that
working so many lunches was adversely affecting their
evening performance.
Manager Selleck would have preferred having dinner
waitresses work at lunch in the hope that their "exper-
tise" would "rub off on" the breakfast waitresses, in
order to improve the service. However, realizing the op-
position of the dinner waitresses to working a split shift,
as she testified, "I try not to work the night waitresses"
at noon "if I can help it. The only time I used the night
waitresses to work noons is when I absolutely need
them."
On October 29, dinner waitresses Valead and Bassett
went with dinner waitress Cheek to the union hall seek-
ing representation, and the union organizing effort began.
Valead, Bassett, and Cheek signed union authorization
cards that day, and the other two dinner waitresses later
discharged with them, Janice Demick and Pamlla
Shaver, signed cards the following day, October 30.
At 2:30 p.m. on November 6 (8 days after the organiz-
ing began), Manager Selleck called a meeting of the
dinner waitresses and announced a requirement that all
of them begin working lunches. As discussed later, there
is much dispute in the record concerning whether she re-
quired them to sign up for only one lunch a week (as she
testified), or whether she announced that the number of
dinners would be prorated to the number of lunches they
worked (as the waitress witnesses testified). In any event,
the waitresses indicated their displeasure at being as-
S At)
DECISIONS OF NATIONAL LABOR REI.AOI()NS BOARD
signed a split shift, left the premises about 3:15 or 3:30
p.m., and went to the nearby Overpass Bar. Waitress
Demick, who had not attended the meeting, joined them
at the bar. All seven of the full-time waitresses (Bonnie
Bassett, Deborah Cheek, Janice Demick, Kristine Ran-
dall, Pamila Shaver, Sandra Valead, and Karen Watters)
were scheduled to begin working from 4:30 to 6 p.m.
that afternoon. As Randall credibly testified, Watters
(who had not signed a union card and who did not tes-
tify) returned to work at 4 p.m. The others decided to
telephone Selleck at the restaurant to see if something
could be worked out. When none of their telephone calls
(one each by Valead, Cheek, and Shaver, and three or
four by Randall) was answered, Randall decided to
report to work as scheduled, but the five others decided
to stay off the job in protest to the new split-shift re-
quirement.
Waitress Randall recalled that, when Manager Selleck
asked about the other waitresses, she answered that "as
far as I knew, they had decided not to come in." (Selleck
admitted that Randall told her the reason they were not
coming in was because they were unhappy with Selleck's
announcement.) Selleck's response was that "none of
them would ever work in the Tri-City Area again. She
would see to that." (Selleck admitted, "I could have said
that," explaining that she was very angry.) Selleck then
returned to her office and tried unsuccessfully to tele-
phone the five waitresses at their homes. She did not try
to reach them at the Overpass Bar. (She first testified on
cross-examination, "I did not know where they all
went," but when later asked, "Now, when Watters and
Randall came back to work, you asked one or both of
them where the waitresses were, and they told you they
were at the Overpass Bar? Isn't that right?" she ad-
mitted, "Yes. That is correct.")
That evening, by working as a waitress herself, Selleck
admittedly had a full crew of waitresses, although three
of the seven were not "trained Nemo waitresses." Sel-
leck and Great Hall banquet waitress Shirley Worsley
substituted for two missing waitresses in serving a ban-
quet. Dinner waitress Randall served another banquet
alone but, as it happened, only 18 or 20 of the expected
30 persons attended, and the absence of one of the miss-
ing waitresses did not cause her problems. Steakbar per-
sons-cashiers Alison Feagley and Vickie Finny (who at
least once had served as a dinner waitress at a party), as
well as regular part-time dinner waitress Janet Hoffman
(instead of steakbar person-cashier Deborah Czapski, as
recalled by Selleck), were called in to work with dinner
waitress Watters on the floor (the four of them doing the
work of three waitresses on the schedule). According to
Selleck, "Karen Watters took it upon herself, on the
floor, to make sure that for the most part everything was
running smoothly" and "Part of the time I would leave
[Worsley] instructions on what to do next and run up to
the front to make sure everything was going all right in
the drawing room, or as well as could be expected."
Food Manager Prasch also came in and assisted by
trying "to watch the kitchen and this type of thing" to
give Selleck "more time to work the floor that night."
The next morning when dinner waitress Cheek told Sel-
leck over the telephone that she was sorry they left Sel-
leck shorthanded and that it was not directed at Selleck
personally, Selleck responded (as Cheek credibly testi-
fied), "That's all right, I made $64 being a waitress. I en-
joyed it." I reject, as unfounded, the contention in the
Company's brief that "The night was a calamity . . .
The night was generally chaotic," and discredit as an ex-
aggeration Selleck's claim at one point that "it was a
mess.")
Late that evening, before the closing of the restaurant
for the night, Manager Selleck took action against the
absent waitresses. Having failed to reach any of them by
telephone, Selleck filled out and signed for each of them
a Valley Plaza employee appraisal, with an exit inter-
view form at the bottom (G.C. Exhs. 19A-E), stating as
"Reasons for Termination" that they had not showed up
for work that evening, and answering "No" to the ques-
tion, "Would you suggest rehiring?"-clearly a method
used to discharge employees. (Although Selleck admitted
that Valead was one of her best dinner waitresses, she
rated Valead only "Average" on five of the six separate
appraisal criteria on Valead's termination sheet, and "Un-
satisfactory" on the sixth criterion, "Dependability,"
G.C. Exh. 19D.)
Selleck claimed at the hearing that she considered the
five waitresses as quitting "Because they failed to show
up for work that night"; however, there is nothing on
the termination sheets to support this claim. She finally
admitted on cross-examination, after some evasion, that
the five waitresses were terminated that evening because
of their actions. (I note that it is evident that Selleck
gave false testimony when she claimed on direct exami-
nation that there was a company policy that "employees
who do not show up for work or call in" are "consid-
ered automatic quits.") She admitted on cross-examina-
tion that she discharged a marginal employee-one with
an "Unsatisfactory" overall rating (Resp. Exh. 17A)-
after he had three "no show's" and "no call's." I find to
be clearly pretextual the additional reason for termina-
tion stated on Demick's termination sheet-that she "did
not show up for waitress meeting"-this being added to
the sheet without any inquiry about the reason for her
missing the meeting, as well as the additional reason for
the termination of Cheek-that she "had already given
notice [of quitting]"-in view of Cheek's credited testi-
mony that she had not definitely done so. (She had often
talked about quitting, but she still wanted her job. She
joined in the picketing on November 13; she telephoned
General Manager Pearson on November 14 in an effort
to meet and settle the dispute over a split shift (He prom-
ised to call her back but he never did); and she was one
of the waitresses who filled in the word "Fired" on the
employee exit report when she picked up her paycheck.)
I discredit as a fabrication Selleck's claim at one point in
her direct examination that she wanted the waitresses to
come to work on November 7 as well as on November 8
because they were good employees and it would save
her a lot of time and trouble training a new staff to re-
place them. She had discharged them and, as discussed
below, replacements had already been found.
The Company argues in its brief that "the fact that the
five waitresses gave no notice to Respondent concerning
540
CAPTAIN NEMO'S
their actions or the reason such action was taken means
that Respondent could have no knowledge of the nature
of their activities"; that the waitresses "gave no actual
notice to their employer that they were walking out over
a dispute over working lunches, and therefore the em-
ployer could hardly discharge them on these grounds";
and further that "the evidence clearly establishes that
Respondent had no notice or knowledge of the reasons
underlying the action taken by the five waitresses."
However, Manager Selleck admitted believing that the
five dinner waitresses acted together in deciding not to
come to work that evening, and admitted, "I felt it was a
result of what I had announced at the meeting." She
then admitted that waitress Randall had told her that
evening that they were not coming in because they were
unhappy with her announcement, and that is what she
thought. I discredit Food Manager Prasch's claim that,
when Selleck called him for some help that evening, she
told him no, she did not know what the problem was.
Selleck admitted probably telling him "they were dissat-
isfied with my noon hour decision."
Although the Company contends that the waitresses
quit and were not discharged, I find it clear that the
Company discharged them on November 6 for concer-
tedly staying off the job that evening in protest to the
change in their working conditions. (I reject, as unfound-
ed, the Company's argument that the waitresses' conduct
was "irresponsible and unprotected activity" which ef-
fectively removed them from statutory protection.) Ac-
cordingly, I find that the Company discharged waitresses
Valead, Bassett, Cheek, Demick, and Shaver for engag-
ing in protected concerted activity in violation of Sec-
tion 8(a)(l) of the Act. I also find that Selleck's threat to
blacklist them in the Tri-City area for engaging in this
protected concerted activity tended to be coercive in the
exercise of employee Section 7 rights, further violating
Section 8(a)(1) of the Act.
The real question concerning their discharge is wheth-
er or not the Company was discriminatorily motivated in
discharging them because of the knowledge or belief that
they were engaged in union activity.
2. Alleged discriminatory motivation
a. Opposing contentions
The General Counsel contends that the November 6
dinner waitresses' meeting was "a set-up designed to pro-
vide an excuse to discharge waitresses that the Respond-
ent knew were attempting to organize a union." He con-
tends that the proration system which Manager Selleck
imposed on the waitresses, requiring them to work four
lunches a week in order to continue to be full-time
dinner waitresses, would admittedly leave her over-
staffed at the lunches and that, in imposing the system,
Selleck "in effect dared them to do something by telling
them that their replacements had been hired." He con-
tends that union animus is shown by the background evi-
dence as well as the Company's conduct in November.
He argues that the evidence indicating company knowl-
edge of their union activity includes General Manager
Pearson's statement about "housecleaning" (discussed
below), the evidence that both Food Manager Prasch
and Manager Selleck "had sources of information at
Captain Nemo's concerning the union activities of their
employees," and Selleck's reference to the union activi-
ties the first time she talked to cook Murphy after dis-
charging the five waitresses. He therefore contends that
the discharges violated Section 8(a)(3) as well as Section
8(a)(l) of the Act.
The Company denies awareness of the waitresses'
union activities, contending that Selleck did not know
that a union was involved until November 12 and that
Prasch and Pearson were not aware of it until still later.
It contends that, in order to alleviate the problem of
scheduling waitresses for lunches, Selleck announced at
the November 6 meeting that all night waitresses would
be required to be available to work at least one noon per
week; and that "Selleck then offered an alternative
method whereby the amount of nights that a waitress
worked would be prorated to the number of noons that a
waitress worked .. .. Selleck intended this to mean that
if she did not get a sufficient number of volunteers to
guarantee working one particular day, that she would
have to institute this proration system." The Company
also contends that when waitress Valead asked if Selleck
wanted their 2-week notices, Selleck "responded that she
was prepared to accept them if they wanted to give
them to her" and that "She then asked the girls to pro-
vide her with notice as soon as possible as to what day
they would be able to work lunches. There being no fur-
ther discussion, Selleck ended the meeting and left the
room." Concerning the testimony by several witnesses
that Selleck stated at the meeting that replacements had
already been interviewed and hired, the Company does
not deny in its brief (fn. 14) that Selleck made that state-
ment to the employees (Selleck having testified, "No, I
don't recall," telling the employees she already had re-
placements); it does deny that Selleck had "hired any
waitresses to replace Sandra Valead or any others" or
had "interviewed any waitresses to replace them." The
Company denies the "housekeeping" remark being made
by Pearson, and ignores the evidence regarding Prasch's
and Selleck's "sources of information" about union activ-
ities. After admitting in its brief (fn. 22) that Selleck re-
garded all five of the waitresses as being "excellent wait-
resses," the Company contends that Selleck's failure to
hear from them for 2 days after the meeting, "along with
the fact that Valead had threatened to give her two
weeks notice during the meeting, led Selleck to believe
that the waitresses had quit." It then argues: "When em-
ployees quit their jobs, neither Section 8(a)(l) nor Sec-
tion 8(a)(3) can offer them any protection." Finally it
argues that it "did not discriminate against the five wait-
resses on the basis of their union activity when they quit
on November 6, 1979, since Respondent had no knowl-
edge of union activity at Captain Nemo's until after No-
vember 6, 1979."
b. Proration of dinner shifts
The November 6 meeting was a long meeting, and dif-
ferent waitresses remembered different parts of the meet-
ing. However, it is undisputed that, at the beginning of
the discussion of lunches, Manager Selleck announced
541
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that all dinner waitresses would be required to work
lunches. The principal dispute is whether she imposed a
proration system-prorating the number of dinner shifts
a waitress could work to the number of lunches she
worked, permitting perhaps two dinners for one lunch,
three dinners for two lunches, four dinners for three
lunches, and five or six dinners for four lunches-or
whether she merely discussed it as an alternative, but
never imposed it as a requirement.
Sandra Valead and Pamlla Shaver, two of the four
waitresses who testified about the meeting, clearly re-
called that Selleck told the waitresses that the Company
was going to open the observatory (additional dining
areas) for lunch. Valead (who became the waitresses'
spokesman at the meeting), recalled that Selleck "said
that in 2 or 3 weeks, they were going to open the Obser-
vatory for lunch which would require having three wait-
resses down there every day," and that she needed two
or three waitresses to work lunches the next 2 days.
Valead, Shaver, Deborah Cheek, and Kristine Randall all
remembered that Selleck announced that she was going
to prorate their dinner shifts to their lunch shifts, and
that they must sign a sheet either that night or by the
next day indicating what days they could work lunches.
Cheek recalled Selleck stating, "Gary Pearson wanted
the expertise of the night waitresses at lunch" as a reason
for imposing the proration system, and Randall recalled
other reasons which Selleck gave: That she expected
more parties during the holidays, that "she didn't
expect" any dinner waitresses to volunteer to work the
lunches, that she felt prorating the dinners to lunches
would be "fair," that she had been unable to hire wait-
resses to work only lunches, and that "to work lunches
would be an alternative to hiring new girls and giving
them nights." Valead, Cheek, and Shaver recalled that,
at the end of the discussion, when Valead asked what
would happen if they gave 2-week notices or refused to
work lunches, Selleck stated that their replacements had
already been interviewed and hired, and she walked out of
the room. Randall recalled that Selleck responded "that
she was prepared for that reaction from us, and that she
was ready to replace every one of us." (All four of these
witnesses, from their demeanor on the stand, appeared to
be doing their best to recount accurately what had hap-
pened.)
Manager Selleck first testified three separate times that
she announced to the waitresses that all of them would
have to work at least one noon a week. (It is undisputed
that, with a total of nine dinner waitresses, a requirement
of only one lunch a week for each of them would pro-
vide more lunch shifts than the dinner waitresses had
been working before the meeting.) She later claimed that
she told the waitresses that each of them "had to work at
least one noon a week" (as she had repeatedly testified
earlier) "or be available to work one noon a week" (a
lower requirement). (Emphasis supplied.) She also testi-
fied that she stated she could not find waitresses to work
only lunches, and, "Then I explained to them that there
was another way that I could do this and that would be
to prorate noons to nights, meaning . . . if I didn't get
the cooperation that I needed." Then, after Selleck ex-
plained the proration system, Valead "asked me if I
wanted their two week notices? And I said that I was
prepared to accept them if she wanted to give them to
me," and "I asked them to let me know what noons they
would be available to work, and to let me know as soon
as possible." (Emphasis supplied.)" (When asked how she
said that, she repeated, "I said that I asked the waitresses
to let me know what noons they could work and to let
me know as soon as possible." (Emphasis supplied.) She
acknowledged that there had been talk about opening the
observatory for lunch. (The observatory was not opened
for lunch, but was closed about 2 weeks later for renova-
tion.) On cross-examination she testified yes, the wait-
resses became upset when she started off the meeting by
telling the waitresses they were going to have to work
one lunch a week, meaning "nine spots filled," and that
yes, she gave "the example," as an alternative, "that
these seven [full-time] waitresses can [each] work four or
five lunches a week" (that is, 28 to 35 lunches a week-
over three or four times the number of lunches the
dinner waitresses had been working.) She claimed that
"it was sort of like showing them the worst that could
happen, so the one noon would look a lot better, because
the second possibility was as I said, it was an example,
another alternative. It wasn't something that I had
planned to do. It was another possibility." She admitted
that, if this proration system had been used, the lunches
"would have been overstaffed," and admitted knowing
that the proration of nights to noons "wasn't possible."
Finally she claimed, "I gave them my first suggestion of
wanting to work one noon a week. They protested. I
gave them an alternative, which was the proration of
noons to nights, and then we . . . went back to the origi-
nal discussion of one noon per week." She claimed that,
after Valead commented about giving 2-week notices, "I
asked them to let me know what noon they could work"
and "let me know as soon as possible." (Emphasis sup-
plied.)
On rebuttal, Cheek (who, like Valead, impressed me as
being an honest, most conscientious witness) positively
denied that Selleck said anything about requiring one
lunch per week, "because if she would have only said
one lunch a week, we would never have gotten so upset
as we did." Also on rebuttal, Valead testified, "Had [Sel-
leck] indicated only one lunch a week, I would have
been happy to volunteer to work one lunch, because I
was already working two or three on numerous occa-
sions." She recalled that, when Selleck announced the
mandatory requirement that all dinner waitresses work
lunches, "said we had to let her know how many
lunches we could work and which days," and said it
would probably work out to three, four, or five lunches
a month, "Nobody was mad" at that point; but "Every-
body got mad" when Selleck said she was going to open
the observatory for lunch in 2 or 3 weeks and "told us
she was going to prorate our lunches to our nights," and
they would have to work three, four, or five lunches in
order to work five or six dinners a week."
Although the Company contends that Selleck, having
married and now living in England, "unlike other parties
to the case, has no interest in the outcome" and should
be credited, and although Selleck testified that she has
542
CAPTAIN NEMO'S
no intention "at this time" to return to the United States,
she impressed me as being a partisan witness, doing her
best to support the Company's defenses, rather than
being a candid witness. I do not believe her account of
what happened. In particular, I consider it most unlikely
that waitress Valead who, like waitress Bassett, was al-
ready working one to three lunches a week, would have
become so upset at Selleck's announcement if Selleck
had merely required them to sign up for only one lunch
a week, as Selleck claimed. I specifically discredit, as a
fabrication, her claim to that effect and find that she an-
nounced to the dinner waitresses in the November 6
meeting that the dinners would be prorated to the
number of lunches they worked, and that the waitresses
must sign a sheet, showing which days of the week they
could work the split shift. I also discredit her claim that
"No, I don't recall" saying she already had replacements,
and credit the testimony of waitresses Valead, Cheek,
and Shaver that she told the dinner waitresses that their
replacements had already been interviewed and hired.
c. Replacements alreadyfound
Immediately before the Tuesday, November 6, meet-
ing, Manager Selleck told dinner waitress Cheek that
Selleck "was going to tell everyone that lunches were
required." When Cheek said, "I know that people would
be upset" and may be giving "notice" of resigning, Sel-
leck responded, as Cheek credibly testified, "I am pre-
pared for it . . . I am ready for that." (Emphasis sup-
plied.) At the meeting, as the credited testimony estab-
lishes, Selleck told the dinner waitresses that their re-
placements had already been interviewed and hired. That
Tuesday evening, after the five waitresses decided to
stay away from work and after Food Manager Prasch
had sent over Great Hall banquet waitress Worsley to
work as a replacement, dinner waitress Randall asked
Selleck upon leaving what Selleck "was going to do
about the next evening" for waitresses. Randall credibly
testified that Selleck "said that she had five new girls
coming in the next day and that she was going to have a
meeting with them that afternoon and discuss our rules
and procedures and that they would be ready to go on
the floor that evening." (Emphasis supplied.)
As it turned out, the Company retained the one Great
Hall waitress at Captain Nemo's and hired four addition-
al replacements, Myrna Donaghy, Evelyn Dynyschuh,
Beverly Elson, and Mary Sherwood, who were idled by
a cooks' strike at the Shanghai Peddler, a restaurant
where Valley Plaza President John Rapanos owns the
building.
The Company contends that replacements had not
been interviewed or hired before the Tuesday, Novem-
ber 6, meeting but its witnesses gave conflicting testimo-
ny about the interviewing and hiring of the replace-
ments.
Selleck did meet with new waitresses (from the
Shanghai Peddler) on Wednesday afternoon, November
7, as she told waitress Randall on Tuesday night she
would. However, Selleck claimed that she had not inter-
viewed them before. She claimed that about 3 p.m. that
Wednesday Food Manager Prasch asked her if she were
interested in interviewing some Shanghai Peddler service
personnel and bartenders who were off the job in a
cooks walkout. "I said yes. And so he sent them over. I
interviewed them, I hired them, and they were put on
the staff that night." (Emphasis supplied.) She testified
that they had already filled out employment applications.
Prasch gave a widely conflicting version, and revealed
that President Rapanos was personally involved in the
decision to replace the discharged dinner waitresses with
waitresses from the Shanghai Peddler. Prasch testified:
A. The next morning [November 7] we tried to
discuss the apparent problem, and it was brought to
my attention that there were some waitresses availa-
ble from the restaurant called the Shanghai Peddler.
They had a walkout, a labor dispute of some sort,
and there were people available who we then could
hire.
JUDGE LADWIG: When was that walkout?
THE WITNESS: I don't know exactly when the
walkout was, but I was informed there were wait-
resses available because there was a walkout, but I
can't recall the date.
JUDGE LADWIG: When is your best recollection
of when the walkout occurred?
THE WITNESS: It may have been the night
before. I am not really sure. [Emphasis supplied.]
He testified that this Wednesday morning conversation
was with Manager Selleck, claimed he believed the
Shanghai Peddler walkout was on November 6, and tes-
tified:
A. I got together with Kris Selleck and I said,
we have got to do something immediately. I told
her about the available waitresses, gave her the
names and phone numbers, and then Kris Selleck
contacted some people, and I contacted some
people and I got them together with her and I think
three people were hired. I believe three people
were hired.
Q. From whom did you hear about the Shanghai
Peddler situation, if you recall?
A. John Rapanos.
President Rapanos, who assisted the company counsel at
the hearing, did not testify.
In the above-quoted testimony, Prasch at least implied
at first that the availability of the Shanghai Peddler wait-
resses was brought to his attention in the conversation on
Wednesday morning, when the "apparent problem" at
Captain Nemo's was discussed. But he then testified that
the conversation was with Selleck, and that he had
learned about the Shanghai Peddler walkout from Presi-
dent Rapanos, without stating when. Prasch testified that
he did not recall when the Shanghai Peddler walkout oc-
curred, but claimed it "may" have occurred on the night
of November 6, and he believed it did occur on that
date.
Under Prasch's version, President Rapanos informed
him (on an undisclosed date) of the availability of the
Shanghai Peddler waitresses; Prasch told Selleck
Wednesday morning about them; that morning both he
and Selleck began telephoning the idle waitresses; and he
543
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was present when the waitresses were interviewed and
hired. To the contrary, under Selleck's version, Prasch
informed her of the available waitresses about 3 p.m. on
Wednesday, and then sent the applicants over for her to
interview. Under both versions, the employment applica-
tions would have been dated Wednesday, November 7, if
the Shanghai Peddler walkout had occurred the night
before, November 6. (Under Prasch's version, the appli-
cations would have been dated when he and Selleck in-
terviewed the idle waitresses on Wednesday, November
7; under Selleck's version, the waitresses had already
filled out applications before Prasch sent them over and
she interviewed them.) Also under both versions, the ap-
plications could have been dated earlier than Wednesday,
November 7, if the Shanghai Peddler walkout occurred
before Selleck's November 6 meeting with the dinner
waitresses.
Thus at the hearing, as proof that the replacements
had not already been interviewed and hired before the
November 6 meeting, the Company relied on widely
conflicting versions of the timing and circumstances of
the interviewing and hiring of the four Shanghai Peddler
waitresses, instead of simply producing their four em-
ployment applications which would have proved (if true)
that the waitresses had not filled out their applications
and been interviewed until November 7, the day after
the November 6 meeting. I note that the Company called
Administrative Assistant Lughtaling (the person in
charge of personnel matters and the custodian of the em-
ployment applications), but she appeared without pro-
ducing the four applications. Testifying without them,
she claimed she did not remember if any of the new wait-
resses had been hired before the November 6 meeting, "I
don't think they were."
As found above, Food Manager Prasch falsely testified
that on Tuesday evening, November 6, Manager Selleck
told him no, she did not know what was the problem
which caused the five dinner waitresses to be absent
from work. In fact, both Prasch and General Manager
Pearson, although not present at the November 6 meet-
ing, were cognizant of what was going on. The imposing
of the proration system was a radical departure from the
previous working conditions of the dinner waitresses,
and Selleck testified that she talked to either Pearson or
Prasch probably two or three times about the problem of
covering lunches with waitresses maybe a week before
the November 6 meeting. I discredit her claim that she
did not discuss with them the prorating of dinners to
lunches, and find that she did, particularly in view of the
credited testimony by waitress Cheek that Selleck stated
at the November 6 meeting "that Gary Pearson wanted
the expertise of the night waitresses at lunch, to give the
service at lunchtime, and therefore, we would all be re-
quired to work a certain amount of lunches a month and
our nights would be prorated by how many lunches we
would work each week."
Having found that Manager Selleck told the dinner
waitresses in the November 6 meeting that their replace-
ments had already been interviewed and hired, and that
Selleck informed waitress Randall that evening that she
had "five new girls coming in the next day" (obviously
referring to the Shanghai Peddler waitresses), and having
considered the type of defense which the Company has
presented, I conclude that, when Selleck announced the
proration of dinners to lunches at the meeting, the Com-
pany had already found replacements. The widely con-
flicting versions given by Food Manager Prasch and Sel-
leck of the interviewing and hiring of replacements indi-
cate that both of them may have been giving fabricated
testimony in an effort to conceal what actually hap-
pened. (From their demeanor on the stand, they im-
pressed me as being less than candid.) Prasch claimed
that he did not recall when the cooks walkout at the
Shanghai Peddler occurred, but asserted that it "may"
have been on Tuesday night, November 6 (after Selleck's
Tuesday afternoon meeting with the dinner waitresses).
Undoubtedly if the cooks walkout had not occurred until
that Tuesday night, the Company would have produced
the employment applications which would have shown
the date of November 7. 1 therefore infer that the appli-
cations showed an earlier date, and for that reason were
not produced by the Company in its defense.
Having thus concluded that the Company had already
found replacements when it announced the proration
system, the fact that President Rapanos informed Food
Manager Prasch that the Shanghai Peddler waitresses
were available to be interviewed for replacements has
added significance. (Prasch did not reveal the date when
Rapanos informed him the waitresses were available, but
undoubtedly it was after the cooks walkout at the
Shanghai Peddler began and before the Company found
the idle waitresses to be suitable replacements.) Inasmuch
as knowledge of the Company's plan to impose the man-
datory split shift on the dinner waitresses was obviously
necessary for Rapanos to anticipate the need for replace-
ments, I find that Rapanos was aware that Manager Sel-
leck planned to announce the split-shift proration system
at the November 6 meeting.
Accordingly I find that the Company, with the knowl-
edge of President Rapanos, General Manager Pearson,
Food Manager Prasch, and Manager Selleck, had al-
ready arranged, before the November 6 meeting, for the
Shanghai Peddler waitresses to replace any dinner wait-
resses who refused to comply with Selleck's dinner-pro-
ration announcement at the meeting. (One Great Hall
waitress was retained as a replacement after being sent in
on short notice, and four of the Shanghai Peddler wait-
resses were placed on the staff the following day-after
Selleck met with them that afternoon and discussed "our
rules and regulations" to make them "ready to go on the
floor that evening.")
The Company's motivation for announcing the prora-
tion system on November 6, requiring dinner waitresses
to sign up for about four lunches a week to remain full-
time dinner waitresses working five or six dinners a
week, remains to be decided.
d. Union knowledge
There is circumstantial, and also some direct, evidence
that the Company knew, or at least suspected, that wait-
ress Valead and other dinner waitresses were involved in
union activity.
544
CAPTAIN NEMO()'S
Three of the discharged waitresses, Valead, Bassett,
and Cheek, went to the union hall seeking representation
on October 29, and the separate union organizing effort
at Captain Nemo's restaurant began on that date. These
three waitresses then signed union authorization cards,
and the two other dinner waitresses discharged the next
week, Demick and Shaver, signed cards the following
day.
By the time of the November 6 meeting, Valead (who
solicited a total of 13 of the 29 cards) had obtained
signed cards from four of the kitchen employees (cooks
Marcia Murphy and Donna Wenglikowski on October
31, salad person Diane Horning on November 3, and
cook Patrick Leitermann on November 4, G.C. Exh. 6).
As found above, Food Manager Prasch had informed an-
other supervisor in July that Prasch had "a direct source
of information" through employees in Captain Nemo's
"day kitchen and cooking crew," who were keeping him
aware of the union activity. The evidence at least sug-
gests that one of these informants was cook Judy Goo-
dell, who also was Manager Selleck's informant. Cook
Murphy credibly testified that on November 10, when
she was passing out union cards on the morning shift,
Judy "just obviously refused [to sign one] by saying that
she needed her job and that she was not going to lose it
signing a union card"; Goodell then left the kitchen and
was in Selleck's office for about 45 minutes; and thereaf-
ter when Murphy was at the front desk on her way out,
she spoke to Selleck who commented, "I have my
sources." The evidence does not disclose the date Goo-
dell (who did not testify) first became aware of the union
organizing. (Also as found above, Prasch had repeatedly
questioned the same supervisor in the summer why two
commissary employees were still there after General
Manager Pearson had instructed the supervisor to dis-
charge them for engaging in union activities.)
Some indication that Selleck had become aware of Va-
lead's union organizing is Selleck's admitted deviation,
before the November 6 meeting, from her regular prac-
tice of "running things by" waitress Valead before bring-
ing them up at the waitress meetings. On this occasion,
Selleck had said nothing to Valead either about requiring
all dinner waitresses to work lunches, or about prorating
the dinners. (Selleck instead spoke before the meeting
with waitress Cheek, who turned out to be also a union
supporter, although not an active organizer as Valead
was.)
On the stand, Selleck testified that she knew that no
matter what she did concerning the lunches it would be
an unpopular decision, and she claimed that she wanted
to take the route which would "cause the least amount
of dissension among the crew." Even if her own version
of the November 6 meeting were credited, I do not
deem it very persuasive that she was endeavoring to
keep down dissension by proposing as an "alternative"
an admittedly impracticable proration system which
clearly would provide several times as many lunch shifts
as she needed.
Concerning the Company's alleged discriminatory mo-
tivation, the General Counsel's brief cites the evidence
that, "Sometime that afternoon or evening [of November
6], Donna Wenglikowski, a cook at Captain Nemo's had
a conversation with Selleck at the steak bar. The phone
was ringing and Selleck told Wenglikowski that she did
not want to answer it in case it was one of the girls. Sel-
leck did not answer the phone." This is the only direct
evidence of why the repeated telephone calls from the
waitresses at the Overpass Bar to the restaurant that
afternoon were not answered. Contrary to the General
Counsel's position, though, I find that Wenglikowski's
testimony is too untrustworthy to be relied upon. Her
timecard (G.C. Exh. 16) shows that she was not working
that evening, and some of her other testimony is clearly
erroneous (for example, she testified that General Man-
ager Pearson told the employees on November 15 that
there would not be any raises until January 1, whereas
he instead announced wage increases on that date, as dis-
cussed below). Wenglikowski testified that she tele-
phoned her roommate, cook Murphy, that afternoon and
claimed that she told Murphy "that Kris [Selleck] wasn't
answering the phone . . . in case it was one of the girls."
There is credible evidence that Wenglikowski did place a
call to Murphy after clocking out at 15.48 hours (about
3:30 p.m.), but nothing was said about Selleck refusing to
answer the telephone.
Other than Selleck's initial denial that she knew where
the waitresses had gone after leaving the November 6
meeting (contrary to her later admission), the Company
offered no explanation for her telephoning their homes
that afternoon but failing to telephone the Overpass Bar
where she was informed they had gathered. I infer that a
purpose for telephoning their homes was to determine
whether each waitress was participating in the joint
action. Later that evening when she reached Scott
Shaver (the husband of Pamlla Shaver) before filling out
the termination sheets for all five of the absent waitress-
es, Selleck asked (as he credibly testified) what had hap-
pened to Pam, and referred to Pam and "the rest of
them" who "walked out" as troublemakers. I infer that a
purpose of this telephone call, as well, was to confirm
waitress Pamlla Shaver's participation in the joint action,
before discharging the five waitresses.
About 10 o'clock the next morning, November 7, Sel-
leck telephoned Cheek, one of the five discharged wait-
resses. After asking Cheek how she was, Selleck asked
her "what were all the waitresses saying" the night
before and "what they object to about the meeting."
When Cheek answered that the waitresses thought they
may lose some of their nights if they could not work
lunches, Selleck said "that all of the Valley Plaza was
having a big laugh over this, and she and Gary Pearson
had just had coffee that morning and Gary Pearson said
that we should thank Sandy [Valead] for doing the best
housecleaning job ever done at Captain Nemo's." (Empha-
sis supplied.) I discredit the denials, and particularly
Pearson's claim, "I am not even sure if I knew about [the
'walkout of the five ladies'] then." (I also discredit Sel-
leck's claim that in the telephone conversation, she asked
Cheek why everyone "quit" on her like that.) This
"housekeeping" remark obviously indicated to Cheek
(who immediately reported the conversation to other dis-
charged waitresses) both that the Company had become
aware of their union activity, and that all of them were
545
DECISIONS OF NATIONAL L.A()OR RELATIO()NS BOARI)
regarded as discharged, although Selleck did not mention
the termination sheets she had signed the night before.
Inasmuch as Pearson admitted that these five dinner
waitresses were "five of our best waitresses," his "house-
keeping" remark could not have referred to culling out
unsatisfactory employees.
The Company contends that Selleck's first knowledge
of any union activity was on Monday, November 12.
However, there is direct, credible evidence that she at
least had suspected such activity. On Friday, November
9, the first day cook Murphy worked following Selleck's
November 6 meeting with the dinner waitresses, Selleck
came into the second kitchen and said (as Murphy credi-
bly testified) that she could not believe those waitresses
would do that to her, that "if they were trying to get a
union in, it would never go, that they worked there long
enough" and "they should know better than to try and get
a union in here." (Emphasis supplied.) Selleck again men-
tioned a union the following evening, Saturday, Novem-
ber 10, when four of the discharged waitresses were
picketing in the second-floor foyer outside the front door
of the restaurant. Selleck told Murphy "that if those girls
didn't get out of here before Gary Pearson came in,"
Selleck "would not have a job, if they were picketing for a
union." (Emphasis supplied.)
Under all these circumstances, I find that, at the time
of their discharge, the Company knew or suspected that
the principal employee organizer, Valead, and the four
other discharged dinner waitresses were engaging in
union activities and were supporting the Union in the or-
ganizational effort at the restaurant.
e. Concludingfindings on motivation
For years, the Company had successfully opposed the
repeated union organizational campaigns at Valley Plaza.
It had demonstrated its union animus by warning em-
ployees of the loss of jobs if they tried to start a union,
and by repeatedly plotting to find pretexts for discharg-
ing union supporters. Food Manager Prasch (the superior
of Kristine Selleck, manager of Captain Nemo's restau-
rant) bragged that he had a "direct source of informa-
tion" on union activities in Captain Nemo's day kitchen
and cooking crew.
About a week after five of Captain Nemo's best dinner
waitresses (Valead, Bassett, Cheek, Demick, and Shaver)
signed union authorization cards in a separate union cam-
paign at the restaurant, and during which time senior
waitress Valead (the principal organizer) had obtained
four signed cards in the kitchen, Manager Selleck deviat-
ed from her practice of consulting with Valead before
calling a meeting of dinner waitresses. After already
finding replacements, Selleck called the November 6
meeting and notified the seven full-time dinner waitresses
they were required to work a split shift, and to sign up
to work about four lunches a week (many more lunches
than needed) to remain full-time dinner waitresses work-
ing five or six dinners a week. That evening, after Union
Organizer Valead and the four other union supporters
absented themselves from work in protest, Selleck com-
pleted papers discharging them; and the next morning,
Selleck telephoned one of the protesting waitresses and
informed her that all of the Valley Plaza was "having a
big laugh" over this and that General Manager Pearson
"said we should thank Sandy [Valead] for doing the best
housecleaning job ever done at Captain Nemo's"-obvious-
ly referring to the discharge of these five union support-
ers.
In its defense, the Company contends that the five
waitresses quit and were not discharged; contends that
the proration of dinners to lunches was not a require-
ment, just an alternative; denies that replacements had
been interviewed or hired; and denies that the Company
had any knowledge of the union activity at the time.
Having concluded that the Company did discharge the
five union supporters; that it either knew or suspected at
the time of their discharge that they were supporting the
union organizational effort at the restaurant; that it had
already found replacements; and that the announced pro-
ration system would have resulted in overstaffing the
lunches, I find in agreement with the General Counsel
that the announcement of the split shift, prorating the
dinners to the number of lunches worked, was a "set-
up," designed to provide an excuse for discharging union
supporters. I therefore find that, when the Company dis-
charged Union Organizer Sandra Valead and union sup-
porters Bonnie Bassett, Deborah Cheek, Janice Demick,
and Pamlla Shaver on Tuesday evening, November 6, by
completing the termination sheets, it discriminatorily dis-
charged them for the purpose of undercutting the union
organizing drive, violating Section 8(a)(3) and (1) of the
Act.
Moreover, I would find that the discharge of the five
dinner waitresses was discriminatorily motivated even if
the Company had not found replacements before the
Tuesday afternoon, November 6, meeting, and even if
Manager Selleck was merely bluffing when she told the
waitresses that replacements had been interviewed and
hired. Thus even assuming that the Shanghai Peddler
cooks walkout did not occur until Tuesday night, No-
vember 6 (as Food Manager Prasch testified "may" have
happened); that either Prasch's or Selleck's inconsistent
versions of the interviewing and hiring on Wednesday
was not fabricated (either that Prasch and Selleck began
contacting the Shanghai Peddler waitresses that morning
to be interviewed, as Prasch testified, or that Selleck first
heard about the idle waitresses at 3 o'clock that after-
noon, after they had already filled out employment appli-
cations, as Selleck testified); and that the applications
were dated November 7, and the failure of the Company
to produce them at the hearing was inadvertent-I
would still find the evidence clear that Selleck was dis-
criminatorily motivated when she filled out and signed
the waitresses' termination sheets on Tuesday night. She
and her superiors were shown to have union animus.
With sources in the kitchen concerning the union activi-
ty, the Company knew or at least suspected that senior
waitress Valead and other waitresses were supporting the
organizational campaign. Its imposing an unnecessary,
impracticable dinner proration system on the dinner
waitresses was undoubtedly designed to ferret out the
union "troublemakers," who could be expected to pro-
test. Therefore, the discharge of the five dinner waitress-
es on November 6 violated Section 8(a)(3) of the Act.
546
CAPTAIN NEMO'S
C. Discriminatory Discharge of Bushoy
Manager Selleck summarily discharged the Company's
best busboy, Bryan Hopkins, the first time he reported to
work after he held a union party in his apartment. (He
worked only on Fridays and Saturdays.)
Selleck was aware of the union party, held after work
on Saturday night, November 10. As found below, Sel-
leck interrogated steak bar person Czapski on November
12 about the party, asking her which other employees
were present and who had signed the blue (union) cards.
Then on the next day, Hopkins went to the picket line
outside the premises where discharged waitresses were
picketing, and stayed there about 45 minutes, talking to
waitress Valead and the other pickets.
The following Friday, November 16, while he was
waiting to clock in, Selleck told him. "I thought I told
you to get your hair cut." He said he had, and she said,
"Well, it's not short enough." He said this is the way he
always got it cut, and she responded, "Well, it's not
good enough." He said, "Well, I'll get it cut by tomor-
row again," but she said, "No, as of today this is your
last day." Then, as he credibly testified, "I told her I
wasn't stupid and she wasn't stupid, that I knew the
reason why I got fired and she just remained quiet."
(According to Selleck, she told him he did not get his
hair cut; he said he had; she said it was not an acceptable
length: he said he would get it cut again; she said she
had warned and warned him; and "I told him to punch
out and go home. He was no longer an employee at Cap-
tain Nemo's.")
Hopkins was following the usual practice, for both
himself and other busboys, of getting a haircut whenever
reminded by Selleck. Once before in October his girl
friend, Susan Irish, had cut his hair, and it was done to
Selleck's satisfaction. This time, as Hopkins and Irish cre-
dibly testified, she cut Hopkins' hair in the same way, at
the same length, and on the same day he was discharged.
I discredit Selleck's unsupported claim that his hair was
below his collar. I also discredit her claim that each time
in the year he was working there as a busboy, she had to
remind or warn him on two successive weekends before
he would get his hair cut. (She repeatedly testified that
two warnings were necessary every time, but elsewhere
she testified that it would be "one or two" warnings or
"once or twice.") Hopkins appeared to be an honest,
forthright witness, and I credit his testimony that he was
never reminded more than once before having his hair
cut.
The General Counsel contends that this is a "classic"
8(a)(3) discharge, with the discharge occurring the next
workday after Hopkins, within the knowledge of the
Company, hosted the union party and demonstrated his
support for the waitresses when they were picketing.
The General Counsel also argues that "Selleck did not
contradict the testimony of Randall, Shaver, Cheek, and
Valead that Hopkins was the best busboy"; that "Selleck
admitted that the records offered in support of Respond-
ent's defense show nothing more than that the named
employees had numerous appearance problems and quit
as opposed to being discharged"; and "The testimony of
Hopkins and Susan Irish should be credited and a viola-
tion found."
The Company argues that, "There is no evidence to
suggest that Respondent was aware of any union activity
on Bryan Hopkins' part, or that such awareness had any-
thing to do with the decision to discharge Bryan Hop-
kins. Hopkins was aware of the restaurant policy con-
cerning hair length, and his failure to heed the constant
reminders and warnings constituted just cause for his dis-
charge. Therefore, there was no violation of Section
8(a)(3) in the discharge of Bryan Hopkins."
I find that, based on the credited testimony, it is clear
that the General Counsel has made a prima facie showing
that busboy Hopkins' union activity was a motivating
factor in the Company's decision to discharge him, and
that the Company has failed to demonstrate that it would
have taken the same action against him had he not en-
gaged in the union activity. Wright Line. a Division of
Wright Line, Inc., 251 NLRB 1083 (1980). 1 therefore
find that the Company discriminatorily discharged him
on November 16 in violation of Section 8(a)(3) and (I) of
the Act.
D. Discriminatory Layvo of Cooks
Part-time cooks Marcia Murphy and Patrick Leiter-
mann were the Company's senior cooks, who were re-
garded as valuable employees. (They had full-time jobs
elsewhere, and worked on weekends.) Repeatedly Man-
ager Selleck complimented them on doing a "nice job,"
as when they were working together on "super busy
nights," and Selleck would tell them that "everything
had gone real well and the food looked really good and
she had a lot of compliments on it." Murphy was also a
"trained morning cook" (as described by Selleck), and
sometimes worked Saturday and/or Sunday mornings as
well as Friday and/or Saturday evenings. Leitermann
had the reputation of being a "very good" cook who
"made a mean Lobster Thermidor," and of having much
knowledge in preparing gourmet food. In August, when
Leitermann obtained a full-time cooking job elsewhere
for higher pay, Selleck urged Murphy "to talk to him
and talk him in to staying." Leitermann agreed to stay
on as a part-time weekend cook.
On November 9 (less than 2 weeks before Murphy and
Leitermann were laid off), Manager Selleck learned that
both of them were supporting union organizer Valead
and the four other discharged dinner waitresses. On that
date, when Selleck went to the second (the observatory)
kitchen and told Murphy and Leitermann that the five
waitresses had worked there long enough to "know
better than to try and get a union in here" (as discussed
above), she questioned Murphy and Leitermann. As
Murphy credibly testified, Selleck asked the two cooks
"if we had heard the news about the girls and we said
yes and she said well, what do you think about it, or
how do you feel about it and Pat and I said that we
agreed with the waitresses." It was the next day, Satur-
day, November 10, when Selleck told Murphy, "I have
my sources," after cook Goodell spent 45 minutes off the
job, talking with Selleck in the office, as also discussed
above. (That day, Murphy worked the "morning" shift
in the front kitchen, from 9 a.m. to 5:51 p.m., Resp. Exh.
13.) Before Goodell went to the office, Murphy solicited
547
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her and four other employees (waitresses Donna Ca-
meron and Laurie Doyle and busboys Jose Jurado and
Troy Naugle) to sign union authorization cards. Goodell
refused to sign a card, stating "she was not going to
lose" her job "signing a union card," and went to the
office after the four other employees had signed the
cards. I infer from these circumstances, and from Sel-
leck's statement that she had her "sources," that Goodell
acted as an informant and revealed to Selleck that
Murphy was soliciting cards for the Union. Thus, I find,
the Company was aware that Murphy was one of the
union organizers, and that both she and Leitermann were
supporting the five discharged dinner waitresses, who as
found were discharged because of their known or sus-
pected union activity.
The Observatory, where Murphy and Leitermann
worked when it was open, was used when needed for
overflow business from the main dining room on Friday
and Saturday evenings. It was closed during the summer
because of poor business, and was reopened in Septem-
ber but was sometimes not needed. Murphy worked in
the front (main) kitchen when she worked the "morning"
or day shift (as she did on November 10), and both she
and Leitermann also worked in the front kitchen when
they worked on evenings in the Observatory kitchen
(called the "pit" because of the heat and lack of ventila-
tion) was closed. On these occasions, when they reported
to work on Friday and Saturday evenings, as Murphy
credibly testified, Selleck "was good to us . . . since she
knew that Pat and I had other jobs, she would usually
give us a choice of staying if we wanted to and let the
guys kitchen cooks go home early up front or it was up
to us if we wanted to go home right then."
Because of plans to convert the Observatory into
gourmet dining for a more profitable operation and to
make some long-needed improvements, the Company de-
cided to close the Observatory again, effective after busi-
ness on November 17, for remodeling. This time, the
Company laid off both Murphy and Leitermann. Al-
though Leitermann would be needed to serve as kitchen
manager when the Observatory kitchen reopened, be-
cause of his knowledge of gourmet cooking, Food Man-
ager Prasch telephoned him on November 21 and sum-
marily laid him off. Leitermann immediately alerted
Murphy what was happening, so when Prasch called
Murphy, she "already had some questions I was going to
ask him." (I discredit Prasch's claim that he telephoned
Murphy first. Selleck testified positively that Prasch
called Murphy first, but later claimed, "I believe" he
called her first and Leitermann second.)
When Prasch telephoned Murphy, as Murphy credibly
testified, "he told me that he hated to do this but . . .
they were going to redo the pit and they wouldn't be
needing any of the part-time help." She asked if he was
going to lay off all the part-time help, including the salad
person, and Prasch said yes, that he had orders on his
desk that all these people would be laid off. Murphy then
asked "why couldn't Pat and I work up in the front
kitchen and let the guys [cooks Brent Uhl and Rick
Curry] have the weekends off and we would work and
they would still get their five days in . . . which was
okay with those two." Prasch said no, "it would be too
much bother to redo the schedule," and said that they
needed their hours. Murphy then said, "I work the
morning shift also," but he responded no, he would not
be needing any part-time help. (I discredit Prasch's testi-
mony that he himself made the decision to lay off
Murphy and Leitermann because they were part-time
employees who "worked in the Observatory kitchen
only," and were no longer needed. Selleck testified that
she and Prasch sat down and discussed "what we were
going to do with the staff in the Observatory," and
claimed that "We [emphasis supplied] came to the con-
clusion" that only part-time weekend cooks Murphy and
Leitermann were really affected, and that "we had no
use" for them. Again she appeared to be less than
candid.) Despite what Prasch told Murphy on November
21, that he had orders on his desk to lay off all part-time
employees, Murphy and Leitermann were the only two
laid off.
In late January 1980, shortly after the complaint herein
was issued on January 15, Food Manager Prasch recalled
Murphy to work again in the front kitchen on the
"morning" shift. (Although Selleck was no longer the
manager, she claimed "we had a position open up." I dis-
credit this unsupported claim as an afterthought, to sup-
port the Company's defense.) Thereafter in February,
when the Observatory was reopened and the new man-
ager, Jacob van der Vlist, was "in desperate need" of a
gourmet cook to take over as kitchen manager, he tele-
phoned Leitermann and offered him the position of
kitchen manager-but the Company still did not offer to
recall Leitermann to his part-time weekend job, which
would have enabled Leitermann to retain the full-time
job which he had obtained before his layoff and which
he had decided to keep.
The General Counsel contends that "The only differ-
ence between summer and November [the Company em-
ploying Murphy and Leitermann in the front kitchen
when closing the Observatory in the summer, but laying
them off when closing the Observatory in November]
was the union activity of Murphy and Leitermann and a
violation therefor should be found. The recall of Murphy
is evidence of nothing more than Respondent's attempt
to mitigate its damages."
In addition to asserting incorrectly that "Marcia
Murphy only worked when the [Observatory] kitchen
was open," the Company contends that "There is no in-
dication on the record that the layoffs of Leitermann and
Murphy were in any way related to any alleged union
activity on their part . . . there is no indication that Sel-
leck or any other member of the Valley Plaza manage-
ment had any knowledge" of Murphy's allegation that
she was personally involved in soliciting union cards;
that Murphy's recall "negates any bad faith on the part
of Captain Nemo's management"; that "the record clear-
ly shows that legitimate and substantial business reasons
existed" for the layoffs; and "the General Counsel has
failed to meet his burden of proving discrimination based
on union activity."
The evidence shows that the Company, with union
animus, had knowledge of Murphy's and Leitermann's
union support. It laid off these two valuable senior cooks
548
CAPTAIN NEMO'S
instead of retaining them to work in the front kitchen as
it previously had done, before the union activity began at
the restaurant, when the Observatory similarly was
closed for several months. I find that the General Coun-
sel has made a prima facie showing that their union sup-
port was a motivating factor in the Company's decision
to lay them off, and find that the Company has failed to
demonstrate that it would have done so in the absence of
their union support, particularly in view of the fact that
Murphy had long worked on the morning shift when the
Observatory was not open, and the fact that Leitermann
was a gourmet cook whose services would be needed
when the remodeling was completed and who would be
less likely to work there full time if he were summarily
laid off, as he was. In view of the timing of Murphy's
recall, shortly after the issuance of the complaint herein
(to resume her previous employment in the front kitchen
on the morning shift, before the reopening of the Obser-
vatory), I reject the Company's contention that the recall
"negates any bad faith on the part of Captain Nemo's
management." I therefore find that the Company discri-
minatorily laid off Marcia Murphy and Patrick Leiter-
mann on November 21 because of their union support,
thereby violating Section 8(a)(3) and (1) of the Act.
E. Alleged Coercion and Interference
1. Removal of pickets from premises
About 7 o'clock on Saturday evening, November 10,
four of the five discharged dinner waitresses went to the
second-floor foyer outside Captain Nemo's entrance and
peacefully posted themselves on either side of the door.
They wore placards bearing the words, "Unfair Labor
Practices," and passed out to dining customers "do not
patronize" leaflets, complaining of wages and certain
working conditions. As directed by President Rapanos
and General Manager Pearson, a Valley Plaza security
guard required that they leave the premises.
The General Counsel contends that this was lawful
picketing and that the Company violated Section 8(a)(1)
of the Act by requiring the employees to leave the prem-
ises. His sole argument in his brief reads: "It is undisput-
ed that Respondent did require the picketing waitresses
to leave its property when they attempted to picket near
the entrance to Captain Nemo's. The waitresses had a
right to picket at the entrance to the restaurant. Seattle-
First National Bank, 243 NLRB 898 (1979).
The Company contends in its brief that the removal of
the pickets was lawful inasmuch as its "private property
rights must prevail over the pickets' Section 7 rights be-
cause the pickets had other available and effective means
of communicating with their intended audience." It
argues that the presence of the pickets on the second-
floor foyer, directly in front of Captain Nemo's, was not
necessary: "The outside entrance to the Ramada Inn
would have accomplished the same purpose without re-
sulting in a severe infringement upon Captain Nemo's
property rights." It therefore contends that Seattle-First
National Bank, supra, where "the striking union's pres-
ence on the forty-sixth floor foyer was essential to its
ability effectively to communicate with its audience of
non-striking restaurant employees and potential custom-
ers," is "clearly and completely distinguishable."
In Seattle-First National Bank. supra, the Board found
that the union was engaged in primary economic strike
activity against the primary employer when it was hand-
billing and talking to customers in the 46th floor foyer of
the bank building, and that inasmuch as that factual set-
ting was analogous with the situation in Scott Hudgens,
230 NLRB 414 (1977), "our task is to reconcile the Sec-
tion 7 rights of those employees engaged in protected ac-
tivity and the private property rights of the Employer
'with as little destruction of one as is consistent with the
maintenance of the other,"' citing N.L.R.B. v. The Bab-
cock & Wilcox Company, 351 U.S. 105, 112 (1956). Here,
the General Counsel has not undertaken to accommodate
the discharged waitresses' Section 7 rights to engage in
primary economic activity with the Company's private
property rights. Contrary to the situation in Seattle-First
National Bank, the General Counsel has not even at-
tempted to make a factual showing that the waitresses'
presence in the second-floor foyer in front of Captain
Nemo's is "essential to [their] ability to effectively com-
municate with [their] intended audience." In these cir-
cumstances, I find that the General Counsel has failed to
establish that the Company's property rights must yield
to the employees' Section 7 rights, and that it was un-
lawful for the Company to require the picketing wait-
resses to leave the second-floor foyer. I therefore find
that the 8(a)(1) allegation must be dismissed.
2. Interrogation and impression of surveillance
On November 12, the second day after busboy Hop-
kins held a union party at his apartment and 4 days
before he was summarily discharged, Manager Selleck
asked steakbar-cashier Deborah Czapski if she would
come to Selleck's office. She jokingly responded, "Now
what did I do?" In the office, as Czapski credibly testi-
fied, Selleck "asked me if I was at the party at Bryan
Hopkins' a few nights before." She answered yes and
Selleck "asked me to name the other employees that I
can remember that were there." She gave Selleck the
names and then Selleck "asked me which of those em-
ployees had signed blue [union authorization] cards." She
answered, "Kris, I don't know for sure who all signed."
Selleck asked if she had signed a card and she answered
no, although she was one of the employees who did sign
union cards that night. (I discredit Selleck's denials that
she interrogated Czapski, and her claim that the subject
of the Union was brought up in a separate conversation
she had that same day with Czapski and steakbar person-
cashier Vickie Finny when Czapski and Finny were
asking to be made waitresses. She claimed that one of
them mentioned the Union, and claimed that, although
this was the first time she knew of any union activity at
Captain Nemo's, she did not relay the information to her
superior, Food Manager Prasch. Czapski, who impressed
me as being the more credible witness, credibly testified
that nothing was said about the Union when she and
Finny talked with Selleck in the Victorian Room about
being promoted to waitress. Finny did not testify.)
549
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that, particularly in the circumstances of Man-
ager Selleck summarily discharging busboy Hopkins 4
days later, this interrogation in Selleck's private office,
without assurance against reprisal, about who attended
Hopkins' party, which of the employees signed blue
(union) cards at the party, and whether Czapski signed a
card, was coercive. I also find that this interrogation cre-
ated the impression that the Company had the union ac-
tivity under surveillance. Accordingly, I find that the in-
terrogation and the creation of that impression interfered
with employee Section 7 rights and violated Section
8(a)(1) of the Act.
3. Photographing of pickets
About 5 p.m. on Tuesday, November 13, waitresses
Valead, Bassett, Cheek, and Shaver began picketing out-
side an entrance to Valley Plaza. Security officer Larry
Bowman (who is in charge of security and who makes
security reports to General Manager Pearson) drove up
and had busboy Hopkins move his car. Bowman then
left, and in a few minutes returned with a camera.
(Bowman testified that he was responding to calls over
the radio that evening, but he claimed that no manager
told him to make an observation of the pickets.)
Bowman first photographed the pickets and thereafter
took pictures of cars belonging to persons visiting the
picket line.
Bowman denied photographing the pickets. Concern-
ing the photographing of four nearby cars, which he
claimed were illegally parked, he testified that normally
he tries to get illegally parked cars moved; that depend-
ing on where the car is parked, "we go into the different
establishments and try to find out who the car belongs
to"; and that he takes pictures, if nobody responds, "For
purposes of showing that they are parked in an illegal
area, and if they have to be towed away." But this time,
after returning with the camera, he admittedly photo-
graphed the cars near the picket line without attempting
to get the car owners to move them-despite the fact, as
he admitted on cross-examination, he "could assume"
these cars belonged to people who were in the immedi-
ate area picketing, and the cars were moved after he
took the pictures. (He claimed that he did not see any-
body standing immediately next to the cars, but his pic-
ture of one of the cars, Resp. Exh. 36, shows that a
person was standing next to the driver's door.) Under
these circumstances, I reject the Company's contention
that Bowman's photographing the cars was the "custom-
ary routine."
Bowman impressed me as being less than candid. I dis-
credit his denial that he photographed the pickets, and I
infer that he was acting under company instructions
when he returned to the area of the picket line with a
camera and photographed the pickets who were engaged
in lawful, peaceful picketing.
The General Counsel contends that the Company vio-
lated Section 8(a)(1) of the Act on November 13 by en-
gaging in surveillance of employees by photographing
them while they were engaging in lawful picketing. The
Company relies in its brief on Bowman's discredited tes-
timony that he did not photograph the pickets. In addi-
tion, the Company argues that "Surveillance and picture
taking of picketers is not violative of Section 8(a)(l) if it
was undertaken in furtherance of some other lawful pur-
pose, i.e., to show the pickets were engaged in violent
activity" (which the Company does not contend hap-
pened), and that "By analogy, it is clear that where, as
here, surveillance and photography were undertaken
only as part of a security guard's normal and customary
security activities, and were not aimed at nor intended to
interfere with lawful picketing, such activity" is lawful.
To the contrary, Bowman was not acting in the normal
and customary fashion either when he photographed the
pickets or when he photographed the cars without first
asking the nearby owners to move them-even if the
cars were illegally parked.
I find that the Company's conspicuous photographing
of the picketing employees was not for any lawful pur-
pose, that it tended to implant fear of future reprisals,
and that it constituted coercive surveillance of the
lawful, peaceful picketing, interfering with the exercise
of employee Section 7 rights in violation of Section
8(a)(l) of the Act.
4. Meetings to undermine union support
The Company held unprecedented employee meetings
on November 15. The evidence shows that the obvious
purpose was to undermine support for the Union.
The evidence also shows that General Manager Pear-
son, who in the presence of Food Manager Prasch and
Manager Selleck conducted the meetings (one for the
day and one for the evening shift), gave false testimony
both about the purpose of the meetings and his lack of
knowledge of the existence of any union activity at the
restaurant.
Pearson testified that on Monday, November 12 (6
days after the Company discharged the five dinner wait-
resses and 2 days after the picketing in the second-floor
foyer and the union party at busboy Hopkins' apart-
ment), he decided to meet with the employees on No-
vember 15. Although he was fully aware of the reason
for the five waitresses absenting themselves from work
after Selleck announced a new split-shift dinner-proration
system, he gave the following answer-feigning igno-
rance of the problem-when asked by the company
counsel why he scheduled the November 15 meetings:
A. Well, I mean five of our best waitresses quit
their jobs, and I wanted to find out what was going
on. I mean a couple of those waitresses [Valead and
Bassett] had been with us for a long time, and there
had to be a problem some place.
My experience has always been in the past, when
there was a problem with the waitresses, the prob-
lem was the kitchen, and so I thought there was
probably something wrong with the kitchen. They
weren't able to get their food or something was
going on.
So, I wanted to get everybody at the meeting
and talk to everybody, so I told Kris Selleck to let
these people know, to write down the things they
wanted to discuss at this meeting, and I would be
550
CAPTAIN NEMO'S
there, and so that is what I did on the 12th. [Em-
phasis supplied.]
On cross-examination Pearson gave contradictory testi-
mony. He testified that he had taken the time to find out
from Selleck why the waitresses walked out, over a
"Split shift, yes.... That is what I thought." Then
when denying that he associated the Saturday evening
picketing with the Union, he again admitted his knowl-
edge of the "problem" with the five waitresses: "I
thought the waitresses were just getting back for work-
ing the split shift." Thus he was already aware of "what
was going on," causing the five discharged waitresses to
absent themselves in protest. He was therefore schedul-
ing the November 15 meeting for other reasons, which
he would not admit.
Furthermore, contrary to his claim that he had no
knowledge of any union activities until November 16,
the evidence as found above shows that he was personal-
ly involved in the Company's decision to impose the
split-shift proration system at the November 6 meeting as
a means of ferreting out the union "troublemakers." His
personal knowledge of the Company's maneuver to rid
the restaurant of the known or suspected union support-
ers was also shown by his statement to Selleck on No-
vember 7 that "we should thank Sandy [Valead, the
principal union organizer] for doing the best housekeep-
ing job ever done at Captain Nemo's." He admitted
knowledge of the Company's opposition to a union (testi-
fying that he and President Rapanos had discussed it and
"We can run [Valley Plaza] better without a union.") If
he actually had not heard anything about the union orga-
nizing at the restaurant, I deem it most unlikely that Sel-
leck would have kept the Union a secret from him until
after the November 15 meetings. (Selleck admitted
having an employee discussion on November 12 con-
cerning the Saturday night union party at busboy Hop-
kins' apartment and, as found, she told an employee on
November 9 that the five waitresses had "worked there
long enough" and "should know better than to try and
get a union in here"-manifesting her knowledge of the
Company's union animus.)
Before the November 15 meetings, Selleck had held
employee meetings to discuss problems and grievances
every month or so, but Pearson had never attended. At
the beginning of her November 6 meeting with the
dinner waitresses, she asked for any complaints. In her
words, they complained about the "usual things," need-
ing more equipment such as silverware and glasses. They
also complained about the busboys, pointing out that
Bryan Hopkins (later summarily discharged on Novem-
ber 16) was the only good one. They complained about
not getting the state minimum wage (of $2.18 for tipped
employees instead of $1.65 permitted under Federal
law-after deduction of the 50-percent tip allowance),
but Selleck "told us to forget it, we were no way getting
a raise." Other frequent complaints at such meetings
were the Observatory kitchen's heat, caused by lack of
proper ventilation; and the wet, slippery floors in the
main kitchen-listed as "safety hazards" (along with
unpaid minimum wage and no overtime pay) on the leaf-
lets distributed by the picketing discharged waitresses on
November 10 (before Rapanos ordered the removal of
the pickets). Despite the frequency of the employees'
complaints about the shortage of supplies and equipment
and about other working conditions, Selleck had failed
to solve many of these problems. She admitted running
out of equipment or supplies on a busy night and, ac-
cording to her, the employees were "very angry and
very upset . . . because things had not been getting
done," and this was affecting their work performance.
In the November 15 meetings, General Manager Pear-
son immediately remedied some of the grievances and
promised another meeting on November 22 as a follow
up on other grievances.
It is undisputed that the Company solicited all of the
employees' grievances. At the morning meeting for the
evening crew, as steakbar person Czapski credibly testi-
fied, "the first thing that was brought up was the Obser-
vatory, it being really hot back there," and Pearson
promised that would be corrected. (The Observatory
was closed the following week for renovation.) Pearson
promised that running out of supplies would no longer
be a problem; and shortly thereafter, an ample supply of
the long-requested items about which the employees
complained, such as dinnerware, teaspoons, coffee cups,
and napkins, began to arrive at the restaurant. (Pearson
admitted ordering as many of them as he could that same
day.) In response to the complaint about wet kitchen
floors, which caused employees to slip and fall, Pearson
granted the request for the rubber mats. (He ordered the
matting that same day, and it was installed within a day
or two.) Concerning the wage complaint, Pearson devi-
ated from his policy of not announcing an upcoming
wage increase. Contrary to Selleck's statement 9 days
earlier-to "forget it," the employees were "no way get-
ting a raise"-Pearson not only answered that he had
been planning raises for a long time and that the employ-
ees would be getting a raise in the next paycheck, includ-
ing a raise to $2.18 for the waitresses (the Michigan mini-
mum wage for them), but he went further. As Czapski
credibly testified, contrary to the denials, "He said the
reason for [the raises] was he wanted to surprise his em-
ployees instead of having them going to their bosses and
asking for a raise. He said it was something like a Christ-
mas bonus," a "Christmas present from him." (In fact,
Pearson had decided on October 18 to grant the mini-
mum wage, non-tipped employees a raise effective in the
November 5-18 pay period, payable November 23, fol-
lowing a rise in the Ramada Inn room rates; and the
Company had decided to avoid litigation and begin com-
plying with the state minimum wage law for tipped em-
ployees.) Finally, Pearson adopted a new "Open Door"
policy, telling employees that "if we had problems" and
Selleck "couldn't help us, to go to him because his door
was always open." He mentioned neither the Union nor
the five dinner waitresses who had been picketing. (At
the afternoon meeting that same day, few complaints
were raised.) The promised followup general meeting
was held by Food Manager Prasch on November 22.
After being told (according to Selleck) that all of the
items "were taken care of' and the employees "had no
551
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other complaints or comments to offer," Prasch intro-
duced the new manager, Jacob van der Vlist.
The General Counsel contends that the meetings were
not called to find out what problems had led to the wait-
resses' walkout but rather in reaction to union activity,
and that the statements made in the meetings violated
Section 8(a)(1) of the Act as alleged. The Company con-
tends in its brief that the November 15 meetings were
called "to determine the extent of damage wrought by
the events of November 6"; that the employee griev-
ances "did not deal in any way with complaints specifi-
cally related to employee relations or working condi-
tions"; that "Pearson had no knowledge of any union ac-
tivity at Captain Nemo's until after the conclusion of the
second meeting on November 15"; that the Company
"had a legitimate interest in remedying" the problem of
inadequate supplies and wet floors, and "These concerns
are not such that would interfere with union organiza-
tional efforts or activity, since no connection between
these matters and union activity can be made"; and "The
evidence shows only that Gary Pearson desired to un-
cover the problems indicated by the events of November
6. There is no evidence that these meetings were held to
discourage union membership, nor that Respondent in
any way overtly suggested this end to the assembled em-
ployees." Concerning the announcement of the wage in-
creases, the Company argues, "Mr. Pearson did not vol-
unteer any notice or offer of a pay raise. Rather, after a
question concerning pay was raised by an employee at
the meeting, Mr. Pearson merely stated that an across-
the-board raise had been in the works for a long time
and that it would appear in the next check."
Contrary to General Manager Pearson's testimony that
he called the meetings to determine why "five of our
best waitresses quit," thinking there was "probably some-
thing wrong with the kitchen"; contrary to the Compa-
ny's inconsistent contentions, that Pearson called the
meetings "to determine the extent of damage wrought by
the events of November 6" (as first asserted in its brief),
or "to uncover the problems indicated by the events of
November 6" (as later asserted); and contrary to Pear-
son's untrue claim that he was not aware of any union
activity at the restaurant at the time, I find that the so-
licitation and remedying of the longstanding griev-
ances-particularly in the context of the union activity
and the picketing-were obviously for the purpose of
improving their working conditions without a union, and
thereby undermining the union organizational drive.
Accordingly, I find that the solicitation and remedying
of the employee grievances were for the purpose of un-
dermining support for the Union, and interfered with the
exercise of employee Section 7 rights in violation of Sec-
tion 8(a)(1) of the Act. I also find that, in the circum-
stances of these November 15 meetings, General Man-
ager Pearson's announcement of a new open door policy,
thereby making an implied promise that future griev-
ances would be remedied without union representation,
was for the same unlawful purpose and similarly violated
Section 8(a)(l) of the Act. Finally, I find that Pearson's
announcement of the wage increases was also for the
purpose of unlawfully undermining the Union. Instead of
simply announcing the increases, or also revealing that
they were being given in due course of business after the
rise in motel room rates and to comply with the Michi-
gan interpretation of the minimum wage law, Pearson
went further. By telling the employees that he wanted to
"surprise" them with "something like a Christmas bonus"
or a "Christmas present from him," he at least implied
that he had decided to give the raises as a further dem-
onstration of the improvements the Company was will-
ing to make without a union. I therefore find that the an-
nouncement also violated Section 8(a)(1) of the Act. In
the absence of credible evidence of similar violations at
the November 22 followup meeting I find that the allega-
tions concerning that meeting must be dismissed.
5. Overly broad no-solicitation rule
Admittedly the Company had in its employee manual
a no-solicitation rule which read:
It is the rule of this company that unauthorized so-
licitation of employees or customers upon the premises
or in the work area by or on behalf of any club, so-
ciety, labor union, religious organization, political
party or similar association is strictly prohibited. This
prohibition applies both to employees on working time
and to outsiders, and it covers soliciting in any form,
whether for membership for subscription, or for
payment of money. [Emphasis supplied.]
The General Counsel contends that the first sentence
of this rule is clearly overly broad since it is not limited
to working time, Essex International, Inc., 211 NLRB
749, 750 (1974); that it is unclear whether the reference
to "working time" in the second sentence modifies the
first sentence; and therefore the rule is ambiguous and
must be construed against the Company, Mallory Battery
Company (A Division of P. R. Mallory & Co., Inc.), 239
NLRB 204, 205 (1978). The Company contends that the
rule prohibits solicitation on the premises only during
working time, and "This allows for nonworking time so-
licitation in non-work areas."
The first sentence of the rule states that "solicitation of
employees . . . upon the premises . . . on behalf of any
. . .labor organization . . . is strictly prohibited." This
is a flat, unequivocal prohibition against an employee so-
liciting another employee upon the premises, even if the
solicitation occurs on nonworking time. The second sen-
tence specifically refers to "working time," but does not
mention nonworking time. Thus the first sentence pro-
hibits employee solicitation on nonworking time, and the
second sentence does not state what if any right an em-
ployee supporter of a union would have under the rule
to solicit another employee on nonworking time. I find
that the rule is capable of being interpreted as restricting
employees' rights under Section 7 of the Act to engage
in union solicitation during their nonworking time, and is
therefore overly broad on its face. Inasmuch as "the
posting itself" of such a rule is "sufficient promulgation
to constitute a violation," General Thermodynamics, Inc.,
253 NLRB 180 (1980), 1 find that the admitted mainte-
nance of the rule violated Section 8(a)(1) of the Act.
552
CAPTAIN NEMO'S
F. Refusal To Bargain
1. Majority status and refusal
The parties agree, and I find, that the following is an
appropriate bargaining unit:
All full-time and regular part-time employees em-
ployed by Respondent at its restaurant known as
Captain Nemo's located in the Valley Plaza, Mid-
land, Michigan, including waitresses, hostesses, bus
persons, cooks, dishwashers, salad persons, and bar-
tenders including the downstairs bartenders, but ex-
cluding all office clerical employees, managerial em-
ployees, confidential employees, guards, and super-
visors as defined in the Act and all other employees
of Valley Plaza, Inc.
The parties also agree that there were 54 employees in
the bargaining unit on November 15. (G.C. Exh. 2.)
They are in disagreement whether the five dinner wait-
resses discharged on November 6 (Valead, Bassett,
Cheek, Demick, and Shaver) or their five replacements
(Donaghy, Dynyschuh, Elson, Sherwood, and Worsley)
should be included in the unit on that date. Inasmuch as
the five dinner waitresses were discriminatorily dis-
charged, and it being well established that "in determin-
ing unit composition for the purpose of determining a
union's representative status, employees who were hired
to replace the discriminatees are not counted," Air Ex-
press International Corporation, 245 NLRB 478, 501
(1979), citing N.LR.B. v. Fabsteel Company of Louisiana,
587 F.2d 689 (5th Cir. 1979), I find that the discharged
employees and not their replacements are properly in-
cluded in the unit of 54 employees.
The Union hand delivered its letter requesting recogni-
tion on November 15. (I discredit General Manager
Pearson's claim that he did not become aware of the
Union's organizational effort at the restaurant until No-
vember 16. According to him, Food Manager Prasch on
November 15 gave him a letter which was addressed to
President Rapanos and which Prasch said had been
given to Prasch on the parking lot. Pearson claimed that
he did not "really" note the envelope, although testifying
that it had on it some "abbreviated letters or something."
Later he admitted that it was "kind of an unusual thing"
for somebody to hand Prasch a letter for Rapanos in the
parking lot, but he claimed, "I honestly thought it was
for an advertisement." He also claimed that he merely
put the letter in the central office to be sent to Rapanos'
office and that the next day, November 16, John Ra-
panos with "another gentleman" called a meeting with
himself, Prasch, and Manager Selleck, "at which time
John opened this envelope and it was a letter from the
union stating that they were representing our employees.
That was the first time I knew anything about a union."
I consider it most unlikely that Pearson believed a letter
delivered in that manner would be an "advertisement,"
and that the Company would wait until the next day to
open the envelope.)
Of the union authorization cards 26 (those of Bassett,
Braun, Bullard, Cameron, Cheek, Crowl, Czapski,
Demick, Donnelly, Laurie Marie Doyle, Griswold,
Hock, Horning, Hopkins, Jezowski, Jurado, Leitermann,
Malpass, Murphy, Naugle, Pleune, Shaver, Valead,
Brenda Verduyn, Terri Verduyn, and Wenglikowski)
were received in evidence as being properly authenticat-
ed. Ruling was deferred on the three remaining cards
proffered to prove the Union's majority status. They
were purportedly signed by cook Rick Curry, salad
person Kathy Deford, and cook Brent Uhl (G.C. Exhs.
6m, 6q, and 6r, respectively).
Although the person who solicited these three disput-
ed cards was not available at the hearing to authenticate
them, other employees were present at the time of the
solicitation, at the union party held in busboy Bryan
Hopkins' apartment after work on Saturday night, No-
vember 10. Steakbar person Czapski (whom Manager
Selleck asked on November 12 which of the employees
signed union cards at the party) was present when Kathy
Deford was signing a union authorization card. At the
time, Czapski was standing at the kitchen counter along-
side Deford, signing Czapski's own union card. As
Czapski credibly testified, Deford "had her card and she
had her pen and I did not see her sign her name, but she
was bent over and I was writing at the same time. Her
arm was moving too but I didn't actually see her sign
her name." Similarly, cook Murphy was present when
cooks Curry and Uhl were signing union cards. As she
credibly testified, "I saw them signing their union
cards.... They were at a table in Bryan's dining room
and I was standing behind them .... They were writing
on the card. The card was in front of them and they
were writing. I can't say I actually saw the ink on the
card, no."
As further proof of the authenticity of the three dis-
puted cards, the General Counsel called a qualified docu-
ments examiner, Helen Janiskee, who compared the writ-
ing on the cards with the writing on documents subpen-
aed from the Company. Upon giving a full and persua-
sive analysis of the writing, pointing out the similarities
and dissimilarities, she gave her opinion that all three of
the cards were authentic. (The documents examiner
called by the Company was less persuasive. Although
qualified, he appeared inclined to emphasize the dissimi-
larities and to ignore obvious similarities. He stated his
conclusion that he could not reach an opinion on the au-
thenticity of the cards.) I find that the authenticity of the
cards of Curry, Deford, and Uhl has been established,
and I hereby receive them in evidence.
The employees who signed the 29 valid union authori-
zation cards in evidence constituted a majority of the 54
bargaining unit employees on November 15. I therefore
find that the Union represented a majority of the bar-
gaining unit employees when it requested recognition on
that date. I further find, in view of the following detailed
analysis of the necessity of a bargaining order, that on
and since November 15, the Company violated Section
8(a)(5) and (1) of the Act by failing and refusing to rec-
ognize and bargain with the Union. Trading Port, Inc.,
219 NLRB 298, 301 (1975).
The General Counsel contends that the Company also
violated Section 8(a)(5) of the Act by granting the pay
raises announced on November 15, "since the pay raises
553
I)ECISI()NS ()I: NA'II()NAI L.AI()R Rl].A'II()NS I()ARI)
were not actually given out until November 23, a time at
which the bargaining obligation would have attached." I
disagree. The undisputed evidence shows that the Com-
pany decided on October 18 (before the union organizing
began) to grant minimum wage, nontipped employees a
raise effective in the November 5-18 pay period, payable
on November 23. Although the decision to increase the
tipped employees' wages (to comply with the state mini-
mum wage law) was not made until November 6 (Resp.
Exh. 11), the date the dinner waitresses were being "set
up" to ferret out the known or suspected union support-
ers, the evidence indicates that there was a legitimate
reason for granting the increase (to avoid litigation over
the proper interpretation of state law). There is no show-
ing that the decision to grant the increase would not
have been made at that time in the absence of the Com-
pany's antiunion conduct. There is therefore insufficient
evidence, as conceded by the General Counsel in his
brief, to support the allegation that the Company violat-
ed Section 8(a)(1) by granting the increases. (The evi-
dence does not reveal whether the Union's November 15
recognition request was hand-delivered to the Company
before or after General Manager Pearson announced the
wage increases in the employee meetings on that date.)
Under these circumstances, I find that the General Coun-
sel has failed to establish any obligation on the part of
the Company to bargain with the Union about the raises,
and that this 8(a)(5) allegation must be dismissed.
2. Necessity of bargaining order
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575,
613-615 (1969), the Supreme Court established two cate-
gories of cases in which a bargaining order would be ap-
propriate. In category one are the "exceptional" cases
marked by "outrageous" and "pervasive" unfair labor
practices of such a nature that their coercive effects
cannot be eliminated by the application of traditional
remedies, with the result that a fair and reliable election
cannot be had. In category two are "less extraordinary
cases marked by less pervasive practices which nonethe-
less still have the tendency to undermine majority
strength and impede the election processes." The Court
held that in these cases, where there is a showing that at
one point the union had a majority, the Board can prop-
erly take into consideration in fashioning a remedy "the
extensiveness of an employer's unfair practices in terms
of their past effect on election conditions and the likeli-
hood of their recurrence in the future. If the Board finds
that the possibility of erasing the effects of past practices
and of ensuring a fair election (or a fair rerun) by the use
of traditional remedies, though present, is slight and that
employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining
order, then such an order should issue."
I first take into consideration "the extensiveness" of
the Company's unfair labor practices "in terms of their
past effect on election conditions." Gissel Packing Co.,
Inc., 395 U.S. at 614. The Company contends that it "is
not guilty of any unfair labor practices"; that "its actions
were rooted in sound business judgment, and all were
justified by business exigency at the time"; that there "is
no evidence to support a finding that Respondent inter-
fered in any way with the ability to hold a fair and free
election, nor is there any indication that Respondent en-
gaged in a series of actions calculated to undermine the
Union's majority"; and "What the record does not estab-
lish is the General Counsel's allegation that Captain
Nemo's engaged in a series of actions designed to rid
itself of union sympathizers and discourage support for a
union." I disagree.
Within a period of 23 days after Sandra Valead (the
principal union organizer) and two other dinner waitress-
es went to the Union on October 30 and began the orga-
nizing drive, the Company succeeded in undercutting the
campaign and destroying the Union's majority support
by engaging in retaliatory and coercive actions on the
one hand, and improving working conditions on the
other. On November 6, as found, the Company "set up"
the dinner waitresses to ferret out the union "trouble-
makers," imposing an unnecessary, impracticable split-
shift proration system. That evening it discharged Valead
and four others of its best waitresses who remained off
the job in protest, and threatened to blacklist them. It
summarily discharged its best busboy on November 16,
his next workday after he hosted a union card signing
party on November 10, under the pretext that his hair
had not been cut short enough that day. On November
21, it summarily laid off two valuable part-time cooks be-
cause one was organizing for the Union and both were
supporting the discriminatorily discharged waitresses.
Meanwhile, after it continued to engage in coercive in-
terrogation, created the impression of union surveillance,
engaged in coercive surveillance, and maintained an
overly broad no-solicitation rule, its general manager
conducted unprecedented employee meetings on Novem-
ber 15 for the obvious purpose of undermining the union
support: soliciting grievances from all of the employees;
immediately remedying longstanding grievances; making
an implied promise to remedy future grievances without
union representation by announcing an open door policy;
and announcing wage increases as a "surprise" and a
"Christmas bonus" or "Christmas present" from him.
(Although the "setting up" of the dinner waitresses and
the discharge of five of the best waitresses could be con-
sidered "outrageous," and although the remedying of the
grievances to undermine the union support was "perva-
sive," affecting all of the bargaining unit employees, I
assume that this case falls under the second category of
bargaining cases.) Following the discriminatory dis-
charge of the 5 waitresses and the busboy, the 29 card
signers (a majority of the 54 bargaining unit employees)
had been reduced in number on the payroll to 23, de-
stroying the Union's majority. By May 21, the end of the
23-day period, all of the union organizers had been dis-
criminatorily discharged or laid off, and the organizing
drive was defeated.
In determining the possibility of holding a fair elec-
tion, I next consider, in turn, the residual impact of the
unfair labor practices, the likelihood of recurring miscon-
duct, and the potential effectiveness of customary reme-
dies. In doing so, I bear in mind that the Board has often
emphasized that it prefers to rely on its own election ma-
554
CAI' AIN NFM()'S
chinery rather than on authorization cards in testing the
majority status of a particular union.
Residual impact of unfair labor practices: The Compa-
ny's union animus and the length to which it is willing to
go to thwart unionization of the restaurant are now obvi-
ous to the remaining employees. Within 8 days after so-
licitation of signatures on union cards began in the res-
taurant, the Company made a radical departure from the
previous working conditions and imposed the split-shift
proration system on the dinner waitresses at the Novem-
ber 6 meeting. That same evening, after five of the best
waitresses remained away from work in protest, the
Company abandoned the mandatory split-shift require-
ment, and failed thereafter to impose it again. Thus, in
the 2-week payroll period ending December 16 (G.C.
Exh. 15), when there was a larger number of lunch shifts
(a total of 18, averaging 9 a week) assigned to dinner
waitresses in the busy holiday season, 5 of the 11 dinner
waitresses (Dynyschuh, Hoffman, Schmidt, Sherwood,
and Vayre) did not work any of the lunches, and one
(Watters) worked only 1 lunch in those 2 weeks. Mean-
while the Company further revealed its discriminatory
motivation to employees. On November 7, Manager Sel-
leck made it clear that the Company had discharged the
five waitresses by telling one of them (Cheek) that "all
of the Valley Plaza was having a big laugh over this,"
and that General Manager Pearson "said we should
thank" Valead for "the best housekeeping job ever done
at Captain Nemo's." On November 9, Selleck told one
employee (cook Murphy) that the five waitresses "should
know better than to try and get a union in here." Two of
the employees indicated their fear of reprisals. One (cook
Goodell) refused to sign a card on November 10, stating
she needed her job and "was not going to lose it signing
a union card." When the other (Czapski) was being coer-
cively interrogated by Selleck on November 12 about
busboy Hopkins' November 10 union party, she falsely
denied to Selleck signing a card herself at the party. A
total of 17 cards were signed on Saturday, November 10,
at work and at the party, but only 2 were signed after
that (Braun on November 13 and Hock on November
15), during the continued coercive interrogation, the cre-
ated impression of union surveillance, and the coercive
surveillance (by conspicuously photographing the picket
line). No cards were signed after November 15, when
Pearson conducted the employee meetings to undermine
the union support), or after the discriminatory discharge
of the Company's best busboy (Hopkins) on November
16 and the discriminatory layoff of the valuable part-time
cooks (Murphy and Leitermann) on November 21. The
Company had demonstrated to the employees that it
would flout their Section 7 rights both by engaging in
coercive and discriminatory conduct and by improving
their working conditions to keep out a union. By the
time of the hearing, it was obvious to the employees that
the Company was determined to maintain the nonunion
status at the restaurant. None of the discharged employ-
ees had been recalled or rehired; the Company had re-
called cook Murphy only after the complaint was issued
(apparently to mitigate the potential backpay); and cook
Leitermann had not been offered a recall to his part-time
job. The Company was denying all allegations of unfair
labor practices, and introduced much false testimony in a
determined effort to justify or conceal its unlawful con-
duct. Undoubtedly such an unlawful antiunion campaign
would have a long-lasting residual impact on the exercise
of the employees' Section 7 rights. I therefore reject the
Company's contention that the lapse of time assures that
a fair election could take place if ordered at this time.
Likelihood of recurring misconduct: The Company's his-
tory of resistance to a union entering any part of the
Valley Plaza complex is detailed and summarized above
under "Antiunion Background." This history includes
members of management plotting to find pretexts for dis-
charging union supporters during previous organizing ef-
forts. Despite the recurrence of this pattern of antiunion
conduct during the Union's fall 1979 organizing cam-
paign, the Company now contends that there has been a
"significant change in management" which "is relevant
to a determination of the necessity of a bargaining
order." The Company asserts that Selleck, Pearson, and
Prasch "are no longer employed as managers of Valley
Plaza." It is true that Selleck and Prasch were no longer
managers at the time of the hearing, but the Company's
brief misstates the record in contending that Pearson is
no longer employed as a manager. When the brief cites
Pearson's testimony, the company counsel's question,
"And what is your position?" is answered, "General
Manager," and his question, "What are your duties as
General Manager?" is answered, "Well, I am responsible
for the overall operation .... " (Emphasis supplied.)
However, even if it were true that Pearson as well as
former Manager Selleck and former Food Manager
Prasch were no longer employed at Valley Plaza, the
record is clear that the Company's willingness to flout
the Act is not confined to those three individuals. Other
managers were involved in plotting the discriminatory
discharge of union supporters during previous organizing
efforts; and Administrative Assistant Houghtaling (who
is in charge of personnel matters for the Company) was
also involved. There is no evidence that any of the new
managers has given assurances to the employees that
their union organizing rights would be respected. More-
over, President Rapanos' personal involvement in the
Company's fall 1979 antiunion campaign indicates that he
himself establishes the policy and oversees the Compa-
ny's resistance to any unionization at Valley Plaza. With
this history of the Company's union animus and willing-
ness to flout employees' Section 7 rights in past organiz-
ing efforts, and in the absence of any indication of a
change in policy, I find it reasonable to expect that the
Company would again resort to whatever illegal means
are deemed necessary to defeat union representation of
its employees, whether or not it is ordered to cease and
desist.
Potential effectiveness of customary remedies: I find that
the Board's traditional remedies would not convince at
least a substantial percentage of the employees that they
would be protected from reprisals and discrimination if
they campaigned and voted for a union. It was obvious
to the employees that the discharge of the best busboy
and five of the best dinner waitresses was discriminatory,
and the remaining employees have observed the length
555
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of time required for such discriminatees to have their
Section 7 rights vindicated. Even if all six of them were
now available and willing to accept offers of reinstate-
ment, the previous conditions would not be restored.
The circumstances giving rise to the organizing effort no
longer exist; and it is most unlikely after this lapse of
time that the employees, remembering how the Company
unlawfully crushed the organizing drive, would be will-
ing to risk jeopardizing their employment by campaign-
ing for and supporting the Union with the same enthusi-
asm as before. Furthermore, the employees who have re-
mained on the job have benefited for many months from
the improved working conditions resulting from the
Company's conduct at the unprecedented employee
meetings, where it remedied longstanding grievances in
order to undermine the union support and established an
open door policy for remedying future grievances with-
out a union. Because of the Company's unlawful actions,
the employees would now be placed in the position of
having to begin an organizing effort afresh to restore the
Union's former support. I find that, under these circum-
stances, traditional remedial actions-including reinstate-
ment and backpay for the discriminatees-would not be
sufficient to dispel the lingering fear of reprisals for sup-
porting a union, or to nullify the effect of the Company's
granting of improvements in working conditions to avoid
unionization. In fact, such a remedy, without a bargain-
ing order, would as a practical matter be putting both
the employees and the Company on notice that the price
for engaging in such flagrant violations of the Act,
thwarting the employees' majority support for the Union
and keeping the restaurant nonunion, is potential liability
for an unknown amount of backpay, a risk the Company
has demonstrated it is willing to take.
Concluding findings: After balancing all of the compet-
ing considerations (including the preference for relying
on the results of the Board's own elections rather than
on cards), I find that the possibility of erasing the effects
of the past unfair labor practices and conducting a fair
and meaningful election is slight. I therefore find that the
employee sentiment once expressed through the union
authorization cards would, on balance, be better protect-
ed by the issuance of a bargaining order.
CONCLUSIONS OF LAW
1. By discriminatorily discharging Bonnie Bassett,
Deborah Cheek, Janice Demick, Pamlla Shaver, and
Sandra Valead on November 6, and Bryan Hopkins on
November 16, 1979, to undercut the union organizing
drive, the Company engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(3)
and (I) and Section 2(6) and (7) of the Act.
2. By discharging Bassett, Cheek, Demick, Shaver, and
Valead on November 6 for engaging in protected con-
certed activity, the Company independently violated
Section 8(a)(1) of the Act.
3. By discriminatorily laying off employees Marcia
Murphy and Patrick Leitermann on November 21, 1979,
because of their union support, and by thereafter failing
to offer reinstatement to Leitermann to his part-time job,
the Company violated Section 8(a)(3) and (1) of the Act.
4. By threatening to blacklist employees for engaging
in protected concerted activity, the Company violated
Section 8(a)(l) of the Act.
5. By coercively interrogating employees both verbal-
ly and in writing, by creating the impression that union
activity was under surveillance, by engaging in coercive
surveillance when photographing lawful picketing, and
by maintaining an overly broad no-solicitation rule, the
Company also violated Section 8(a)(l) of the Act.
6. By soliciting and remedying employee grievances,
by making an implied promise to remedy other griev-
ances by announcing a new open door policy, and by an-
nouncing wage increases, all in order to undermine sup-
port for the Union, the Company further violated Sec-
tion 8(a)(l) of the Act.
7. By failing and refusing to recognize and bargain
with the Union on and since November 15, 1979, while
engaging in a campaign of unfair labor practices which
undermined the Union's majority status and impeded the
election process, the Company violated Section 8(a)(5)
and (1) of the Act.
8. A bargaining order is necessary to remedy the Com-
pany's unfair labor practices.
9. The Company did not violate Section 8(a)(5) by
paying on November 23, 1979, without prior bargaining
with the Union, wage increases which were granted em-
ployees before the November 15 bargaining request.
10. The General Counsel has failed to prove that the
Company violated Section 8(a)(1) by requiring picketing
waitresses to leave the second-floor foyer in front of the
restaurant, and by engaging in coercive conduct at the
November 22 meeting.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent having discriminatorily discharged six em-
ployees and laid off two other employees (only one of
whom it has reinstated), I find it necessary to order it to
offer them reinstatement (except the one already reinstat-
ed) with compensation to all eight of them for lost pay
and other benefits, computed on a quarterly basis from
date of discharge or layoff to date of proper offer of re-
instatement, less net interim earnings, in accordance with
F. W. Woolworth Company, 90 NLRB 289 (1950), plus in-
terest as computed in Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962). Inasmuch as Respondent
has engaged in such egregious misconduct as to demon-
strate a general disregard for the employees' fundamental
rights, I find it necessary to issue a broad order, requir-
ing Respondent to cease and desist from infringing in
any other manner upon rights guaranteed employees by
Section 7 of the Act. Hickmott Foods. Inc., 242 NLRB
1357 (1979).
Upon the foregoing findings of fact, and conclusions of
law, upon the entire record, and pursuant to Section
556
CAPTAIN NEMO'S
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 2
The Respondent, Valley Plaza, Inc. d/b/a Captain
Nemo's, Midland, Michigan, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating
against any employee for supporting Catering Industry,
Hospital Workers and Bartenders Union, Local 688,
Hotel and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, or any other union.
(b) Threatening to blacklist employees for engaging in
protected concerted activity.
(c) Coercively interrogating any employee about union
support or union activity.
(d) Creating the impression that employees' union ac-
tivities are under surveillance.
(e) Engaging in surveillance of employees' protected
concerted activities by photographing employees en-
gaged in lawful picketing.
(f) Maintaining any rule prohibiting employees from
soliciting on behalf of a union on the premises during
nonworking time.
(g) Soliciting grievances, and remedying or making an
implied promise to remedy grievances, for the purpose of
undermining support for a union.
(h) Announcing any wage increase for the purpose of
undermining support for a union.
(i) Using any employee application form which refers
to the applicant's union membership.
(j) Unlawfully refusing to bargain with Catering Indus-
try, Hospital Workers and Bartenders Union, Local 688,
Hotel and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, as the exclusive representative
of the employees in the following appropriate unit:
All full-time and regular part-time employees em-
ployed by Respondent at its restaurant known as
Captain Nemo's located in the Valley Plaza, Mid-
land, Michigan, including waitresses, hostesses, bus
persons, cooks, dishwashers, salad persons, and bar-
tenders including the downstairs bartenders, but ex-
cluding all office clerical employees, managerial em-
ployees, confidential employees, guards, and super-
visors as defined in the Act and all other employees
of Valley Plaza, Inc.
(k) 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 necessary to
effectuate the policies of the Act:
(a) Offer Bonnie Bassett, Deborah Cheek, Janice
Demick, Bryan Hopkins, Patrick Leitermann, Pamlla
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, 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
Shaver, and Sandra Valead immediate and full reinstate-
ment to their former jobs or, if their jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previous-
ly enjoyed, and make them and Marcia Murphy whole
for any loss of pay or other benefits they may have suf-
fered by reason of the discrimination against them in the
manner set forth in the remedy section.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Upon request, bargain in good faith with Catering
Industry, Hospital Workers and Bartenders Union, Local
688, Hotel and Restaurant Employees and Bartenders In-
ternational Union, AFL-CIO, as the exclusive repre-
sentative of the employees in the appropriate unit and
embody in a signed agreement any understanding
reached.
(d) Post at its restaurant in Midland, Michigan, copies
of the attached notice marked "Appendix."3 Copies of
said notice, on forms provided by the Regional Director
for Region 7, after being duly signed by Respondent's
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
The Act gives employees these rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
557
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To act together for the purpose of collective
bargaining or other mutual aid or protection
To refrain from doing any or all of these
things.
WE WILL NOT discharge, lay off, or otherwise
discriminate against any of you for supporting Ca-
tering Industry, Hospital Workers and Bartenders
Union, Local 688, Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, or
any other union.
WE WILL NOT threaten to blacklist employees for
engaging in protected concerted activity.
WE WILL NOT coercively question you about
union activities.
WE WILL NOT create the impression that employ-
ees' union activities are under surveillance.
WE WILL NOT photograph employees engaged in
lawful picketing.
WE WILL NOT prohibit you from soliciting for a
union on the restaurant premises during nonworking
time.
WE WILL NOT solicit grievances, and remedy or
promise to remedy them, for the purpose of under-
mining employee support of a union.
WE WILL NOT announce any wage increase for
the purpose of undermining employee support of a
union.
WE WILL NOT refer to union membership on any
application form.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of your
rights mentioned above.
WE WILL, upon request, recognize and bargain
with Local 688, and put in writing and sign any
bargaining agreement we reach covering employees
in this bargaining unit:
All full-time and regular part-time employees em-
ployed at our Captain Nemo's restaurant in
Valley Plaza, Midland, Michigan, including wait-
resses, hostesses, bus persons, cooks, dishwashers,
salad persons, and bartenders including the
downstairs bartenders, but excluding all office
clerical employees, managerial employees, confi-
dential employees, guards, and supervisors as de-
fined in the Act and all other employees of
Valley Plaza, Inc.
WE WILL offer Bonnie Bassett, Deborah Cheek,
Janice Demick, Bryan Hopkins, Patrick Leitermann,
Pamlla Shaver, and Sandra Valead Immediate and
full reinstatement to their former jobs or, if their
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and make
them and Marcia Murphy whole for any loss of pay
or other benefits since their discharge or layoff, plus
interest.
VALLEY PLAZA, INC. D/B/A CAPTAIN
NEMO'S
558