Blake's Restaurant

National Labor Relations Board - Board Decisions

Jun 9, 1977

230 N.L.R.B. 27 (N.L.R.B. 1977)

BLAKE'S RESTAURANT
Larry Blake's Restaurant and Rathskeller d/b/a
Blake's Restaurant and Dinah Ackerson and Local
28, Hotel & Restaurant Employees' & Bartenders'
International Union, AFL-CIO. Cases 20-CA-
11116 and 20-CA-I 1125
June 9, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On January 31, 1977, Administrative Law Judge
Roger B. Holmes issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. The General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Larry Blake's
Restaurant and Rathskeller d/b/a Blake's Restau-
rant, Berkeley, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
ROGER B. HOLMES, Administrative Law Judge: The
original charge in Case 20-CA-11116 was filed on
February 20, 1976, by Dinah Ackerson. The first amended
charge in that case was filed on March 11, 1976, and the
second amended charge on April 15, 1976, both by
Ackerson. The charge in Case 20-CA-11125 was filed on
February 26, 1976, by Local 28, Hotel & Restaurant
230 NLRB No. 2
Employees & Bartenders International Union, AFL-CIO,
herein called the Union.
The complaint was issued on April 16, 1976, on behalf of
the General Counsel of the National Labor Relations
Board, herein called the Board, by the Regional Director
for Region 20. The complaint alleges that Larry Blake's
Restaurant and Rathskeller d/b/a Blake's Restaurant,
herein called the Respondent, has engaged in unfair labor
practices within the meaning of Section 8(aX1), (3), (4), and
(5) of the National Labor Relations Act, herein called the
Act. The Respondent filed an answer to the complaint and
denied, inter alia, the commission of the alleged unfair
labor practices.
The hearing was held before me on September 9, 10, and
21, 1976, in San Francisco, California. Briefs were timely
filed by November 23, 1976, by counsel for the General
Counsel and by the Respondent. Those briefs have been
read and duly considered.
Upon the entire record and based upon my observation
of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent questions whether the Board should
assert jurisdiction over the Respondent's operations since
only by adding various state, county, city, and BART sales
taxes to the amount of its sales does the Respondent's gross
volume exceed the Board's discretionary jurisdictional
standard of at least $500,000 per annum for retail
enterprises which fall within the Board's statutory jurisdic-
tion.
Even so, the Respondent points out, by adding the sales
taxes to its revenues, the Respondent's gross volume
exceeds $500,000 only for the calendar year 1975. The
gross volume, including sales taxes, falls short of the
$500,000 yardstick for the latest 12-month period for which
sales figures were presented at the hearing.
The Respondent has been engaged in the operation of a
restaurant and rathskeller in Berkeley, California, at all
times material herein. During the calendar year 1975, the
Respondent purchased goods, materials, and services
valued in excess of $50,000 which originated from points
outside the State of California. Also during the calendar
year 1975, the Respondent had gross sales of $476,591.48
and an additional $4,500 miscellaneous income from the
juke box, football machine, cigarette machine, and "Pong"
machine. The sales taxes collected by the Respondent for
1975 amounted to $30,797.70.
The taxes are identified on the State of California
reporting form filed by the Respondent as a "State, Local
and District Sales and Use Tax Return." The State of
California tax is levied at 4-3/4 percent; another 1/4
percent tax for the county; I percent "local" tax-presum-
ably the city of Berkeley, and 1/2 percent tax for the San
Francisco Bay Area Rapid Transit District (BART). Thus,
the various sales and use taxes add up to 6-1/2 percent.
By adding the taxes to the Respondent's sales and
miscellaneous income figures, the total is $511,889.18 for
the calendar year 1975. However, for the 12-month period
27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 1, 1975, through June 30, 1976, the total for taxes,
sales, and miscellaneous income is $488,167.36.
The General Counsel's complaint alleges that the
Respondent's refusal to bargain with the Union in
violation of Section 8(aXl) and (5) of the Act commenced
in September 1975 and continued thereafter. The com-
plaint further alleges that the discharge of Dinah Ackerson
on or about March 10, 1976, was in violation of Section
8(a)(1), (3), and (4) of the Act. As noted earlier, the hearing
took place in September 1976.
After considering the foregoing, I conclude that for
jurisdictional purposes the Board would add the state,
county, city, and BART taxes to the Respondent's sales
and miscellaneous income figures. J. Tom Moore & Sons,
Inc., 119 NLRB 1663 (1958), and Edmund R Walker, et al.
d/b/a Pacific Fine Arts, 116 NLRB 1607 (1956). Accord-
ingly, I find that the Respondent's gross volume of business
for the calendar year 1975 was in excess of the $500,000
discretionary standard, and the Respondent also fell within
the Board's statutory jurisdiction in 1975.
In Aroostook Federation of Farmers, Inc., 114 NLRB 538,
539 (1955), the Board observed that in applying its
jurisdictional standards it has "relied on the experience of
an employer during the most recent calendar or fiscal year,
or the 12-month period immediately preceding the hearing
before the Board, where such experience was available."
The use of the word "or" in the Board's opinion suggests
that the Board may rely on any one of the three time
periods specified for jurisdictional purposes. Accordingly, I
find that it is appropriate in this case to rely on the 1975
calendar year figures for jurisdictional purposes. See also
the Board's Advisory Opinion in The District Court of the
Tenth Judicial District of the State of Idaho, in andfor the
County of Nez Perce and Cox's Food Center, Inc., 164
NLRB 95 (1967).
In view of the foregoing, I find that the Board would
assert its jurisdiction over the Respondent and that the
Respondent has been at all times material herein an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. Carolina Supplies and
Cement Co., 122 NLRB 88 (1958).
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union has been at all times
material herein a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
Since 1941 Larry Blake, co-owner of the Respondent,
and Jack Faber, a business agent of the Charging Party
Union, have known each other. From March 1946 to
September 1975 Faber was a business agent of the Cooks'
Union Local 228 which represented the cooks at the
Respondent's restaurant. In September 1975 three local
unions merged to form the Charging Party Union. The
three local unions were: Cooks' Union Local 228;
Bartenders' Union Local 52; and Waiters, Waitresses &
Service Crafts Local 31. Since the merger of the unions,
Faber has held his present position.
Prior to the merger of the three local unions, they
negotiated jointly their collective-bargaining agreements
under a governing body which was known as the Joint
Executive Board of the Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, of Alame-
da County.
The East Bay Restaurant Association, Inc., was formed
about 30 years ago as an organization of employers in the
restaurant business who bargained collectively with the
Joint Executive Board. According to the information
furnished to Faber from the records of the East Bay
Restaurant Association by the executive secretary of that
Association, the Respondent joined the Association on
June 1, 1952, and resigned from the Association on May 6,
1970. Blake said that he rejoined the Association in
January or February 1974 and was still a member at the
time of the hearing in this case.
The executive secretary of the Association transmitted
on October 3, 1973, a list of various employers to the Joint
Executive Board. Faber was given a copy of that list either
by the president or by the secretary of his local union.
Among the categories on the list was one entitled "Have
Authorizations But the Following Are No Longer Mem-
bers." The name of the Respondent was one of several
names listed under that category.
The foregoing findings of fact are based upon the
testimony of Faber, Blake, and on documentary evidence.
B. The Execution of the Contract
On January 29, 1974, Faber visited Larry Blake at
Blake's office on Harrison Street which is located away
from the restaurant which is on Telegraph Avenue in
Berkeley. Blake explained at the time of the hearing that he
was a senior consultant for Restaurant Consultant Associ-
ates, a division of Property Development, Incorporated,
which was a real estate broker. Blake described the
Association as being a group of 20 to 24 restauranteurs
who make their services available to advise and assist in the
conduct and development of other restaurants.
At the time of his visit to Blake's office, Faber was an
officer of the Joint Executive Board in addition to being a
representative of Cooks' Union Local 228. Faber testified:
I told Mr. Blake that we had been informed by the
Restaurant Association that he had withdrawn his
membership, although he was still bound by the
authorization, and that we'd like to keep our files in
order. So, I asked him to sign the contract. He took it,
looked at it a little while, and he said, "This is a
standard contract?" And I said yes, and he signed it,
and that was it, other than the conversation that we had
about the building.
Faber later added that he also told Blake that the
contract was the same contract that he was bound to by the
Association with the exception of the clause concerning the
arbitration hearing.
The reference in Faber's testimony to the conversation
about the building concerned a building occupied by the
28
BLAKE'S RESTAURANT
local cooks union at the time. Faber said that Blake told
him that Blake had heard that they were merging the
unions and that the unions would be selling one of the
buildings. Faber referred him to Pat Sander who at that
point in time was secretary of the Cooks' Union Local 228
and was president of the Charging Party Union at the time
of the hearing.
Faber specifically denied that there was any discussion
between him and Blake as to whether certain employees
were or were not covered by the contract. Faber also
specifically denied that anything was said regarding the
organization of employees at other restaurants.
The findings of fact in this section are based upon the
credited testimony of Faber and upon a portion of the
testimony of Blake with respect to his role in Restaurant
Consultant Associates. Where there are conflicts in the
testimony between Faber and Blake as to what occurred at
Blake's office on January 29, 1974, I found Faber's
testimony to be the credible version bearing in mind and
applying in this case the guidance from the Board in its
decision in Northridge Knitting Mills, Inc., 223 NLRB 230
(1976). In that case the Board stated at 235:
[I ]t is abundantly clear that the ultimate choice
between conflicting testimony also rests on the weight
of the evidence, established or admitted facts, inherent
probabilities, reasonable inferences drawn from the
record, and, in sum, all of the other variant factors
which the trier of fact must consider in resolving
credibility. See, e.g., Retail, Wholesale and Department
Store Union, AFL-CIO, (Coca-Cola Bottling Works,
Inc.) v. N.L.R.B., 466 F.2d 380, 386-387 (C.A.D.C.,
1972).
In sharp contrast to the testimony recited by Faber,
Blake gave this version to their conversation:
Well, he opened the conversation himself by first of
all saying that he was trying his best to get me the
building on the basis of a listing, and I told him I wasn't
too interested in that facet of real estate. I was dealing
only in restaurants and bars.
Then he brought the contract up and said that he'd
like to get me back in, that he understood I was no
longer a member of the Association. And apparently,
this had been escaping their attention for some time.
And they would like very much to have me back in.
IS * a
I said, well, it all depends. I said, if we can keep the
status quo. And status quo being that I had my skilled
personnel, the cooks, as union members, and it would
also be dependent upon whether or not the Union
intended to organize my competitors in that neighbor-
hood.
And Jack said, "That's just what we're going to do,
but we need your help to do it. We need you on this
contract to do it."
I said, "Well, on that basis, I'll go along with you one
more time."
According to Blake, Faber told him that Faber was
representing the Cooks' Union. Blake said that they did not
discuss the contents of the contract and he did not read the
contract. Blake explained: "I signed the contract despite
and fully knowledgeable of its contents. It was based on
the word of a man I had known over 38 years, and that was
the reason why I did it."
Blake asserted that his cooks and kitchen employees
were members of Cooks' Union Local 228 at that point in
time, but that his waiters and waitresses were not union
members. He said that he had no relationship with Waiters,
Waitresses & Service Crafts Local 31 since 1964 when some
of his waiters and waitresses were covered. He claimed that
about 1964 Local 31 was unable to supply the kind of
personnel which he needed.
As indicated above, I find the testimony given by Faber
to be the accurate and complete version of the conversa-
tion between Faber and Blake, and I have based the
findings of fact upon Faber's account. It is noted that in
the letter which Blake later wrote on January 13, 1976,
regarding the alleged representation made to him by Faber,
that Blake only mentioned the failure of the Union to
organize the employees of the other restaurants in the area.
No mention was made in that letter with respect to the
alleged agreement to maintain the "status quo" with
respect to the unit. Furthermore, health and welfare
contributions had been made subsequent to the signing of
the contract on behalf of employees other than cooks and
kitchen employees. Such contributions made on behalf of
those employees are inconsistent with the contention that
the contract terms and benefits were only to apply to cooks
and kitchen employees.
Finally, it is noted that Blake testified that he tape-
recorded his conversations with Union Representatives
Faber and Frank Van Kempen because in his view they
changed their statements later on. Blake did not produce
any tape recording of this meeting with Faber to contradict
the version given by Faber. However, because this
conversation occurred several years ago and because Blake
did not indicate how long he had been tape-recording such
conversations, I do not rely on this final note with regard to
this conversation.
C. A Description of the Contract
The contract which was signed on January 29, 1974, by
Blake and Faber is what might be commonly called a
"short-form agreement" since it consists of only one page
and incorporates by reference the terms of a more lengthy
agreement between the Association and the Joint Execu-
tive Board. The only writing on the single-page document
by Blake was his own signature. Faber filled in the spaces
concerning the name, address, and telephone number of
the Employer and also the date. Under the printed heading
on the form "Joint Executive Board," Faber signed his
name. Underneath Faber's signature was the printed title
"Union Representative." Faber testified that he signed the
document as a representative of the Joint Executive Board.
After the contract was signed, Faber turned it over to the
Joint Executive Board.
The entire document actually consists of two separate
agreements and several appendixes in addition to the one
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
page "short-form agreement." One agreement is with the
East Bay Restaurant Association, Inc., and the Joint
Executive Board. Another agreement, which has somewhat
different effective dates, is between the East Bay Restau-
rant Association, Inc., Berkeley Division, and the Joint
Executive Board. The latter agreement incorporates the
former agreement by reference, but in addition it contains
a significant modification for those employers who operate
"establishments located within one mile of the campus of
the University of California, at Berkeley, California." It
should be noted here that the Respondent's restaurant is
located near the Sather Gate entrance to the Berkeley
campus of the university.
In pertinent part, the Berkeley Division modification
states:
3. The Union agrees that each establishment
covered by this Agreement employing three (3) or more
union members shall be permitted to employ not more
than six (6) bona fide student workers, on a part-time
basis at a wage rate of not less than the fair Bear rate
per hour and that such student workers shall not be
required as a condition of employment to join any of
the various unions which are parties to this Agreement,
or to secure or pay for any work permits from such
unions. Student workers who are now or who may in
the future join the union, shall not be discriminated
against because of such membership.
No student workers, other than those who come
under the jurisdiction of the Cooks', Pastry Cooks', and
Assistants', Local 228, shall be allowed to do any part
of the work coming under the jurisdiction of Local 228.
No student workers, other than those who come
under the jurisdiction of the Bartenders' Union, Local
52, shall be allowed to do any of the work of a
Bartender.
A bona fide student worker is hereby defined as a
University of California student who works not more
than twenty (20) hours per week. Should a bona fide
student worker, as herein defined, work more than
twenty (20) hours per week, he shall obtain a work
permit from the Union and shall be subject to all the
terms and conditions of this Agreement.
The "fair Bear rate" has historical significance. Accord-
ing to Faber, it dates back to 1938 or 1939 when a law
student at the university and two union organizers
established the hourly rate of pay for working students
enrolled at the University of California at Berkeley. Faber
said that the rate of pay for students under the "fair Bear
rate" is set by the "Associated Students." The use of the
term "Bear" has reference to the golden bear of the
University of California at Berkeley.
By its terms, the effective dates of the contract between
the Berkeley Division of the Association and the Joint
Executive Board are from September 12, 1973, through
August 23, 1977.
The findings of fact in this section are based on
documentary evidence and the testimony of Faber.
D. The Appropriate Unit
The contract between the Association and the Joint
Executive Board contains the following recognition clause:
Section 2. RECOONmToN. The Employer recognizes
the Union as the sole bargaining agency for all
employees engaged in or in connection with the
preparation, handling, and serving of food and/or
beverages, including without limitation those employed
in the classifications set forth in Appendices A, B, and
C, and office workers.
Appendix A to the contract lists job classifications and
wage scales for the following: waiters; waitresses; dish-
washers; vegetablemen; day porters; night porters; bar
boys and girls; managers; assistant managers; head
waiters; head waitresses; men and women in charge of
departments; captains; hostesses; cashiers; checkers; com-
bination cashiers and checkers; food checker; head
banquet waiter or waitress; banquet waiters and waitress-
es; banquet buffet waiters and waitresses; cocktail waiters
and waitresses; hat check employees; dairy lunches, chuck
wagons, hofbraus, donut shops, park concessions, window
service employees and counter and supply men or women;
cafeteria workers; miscellaneous employees; soda fountain
employees; waiters or waitresses employed as car hops in
drive-in restaurants and fountains; vending machine
and/or wagon workers; beer tenders; wine stewards; and
room service waiters and waitresses.
Appendix B to the contract lists job classifications and
wage scales for a variety of chefs, cooks, cook's helpers,
pantrymen, and related functions.
Appendix C to the contract classifies bartenders, head
bartenders, service bartenders, and tavern bartenders.
The General Counsel's complaint alleges the appropriate
unit in somewhat different terms than the recognition
clause of the contract. The General Counsel's description
of the unit is less inclusive than the collective-bargaining
agreement. It is also less inclusive than the listing of job
classifications and employees, which was prepared by
Charging Party Ackerson and another employee. The
complaint alleges the appropriate unit to be: "All waiters,
waitresses, bartenders, cooks and busboys employed by
Respondent at its Berkeley, California, location; excluding
guards and supervisors as defined in the Act." The
Respondent's answer to the complaint denied the allega-
tion which alleged the foregoing as an appropriate unit.
A list of job classifications and employees prepared in
January 1976 by Charging Party Ackerson and a waitress
named Lynn Fine and submitted to Union Business Agent
Frank Van Kempen at that time was introduced in
evidence by counsel for the General Counsel. That exhibit
lists the following classifications: cooks, managers, bus-
boys, dishwashers, waitresses main floor, waitresses and
waiters Rathskeller, and hostesses. The categories of
dishwashers, hostesses, and managers employed by the
Respondent were not mentioned in the General Counsel's
unit description.
After considering the documentary evidence concerning
the unit description and the entire record, I find that the
appropriate unit is the one set forth in the contract to
30
BLAKE'S RESTAURANT
which the parties agreed, but with the exclusion of certain
statutory categories. Thus, I find the appropriate unit in
these circumstances to be:
All employees engaged in or in connection with the
preparation, handling, and serving of food and/or
beverages, including without limitation those employed
in the classifications set forth in Appendices A, B, and
C of the collective-bargaining agreement, and office
workers employed by the Respondent at its Berkeley,
California, restaurant, excluding guards and supervi-
sors as defined in the Act.
The more limited unit description urged by the General
Counsel is at variance with the contract and the foregoing
finding. Nonetheless, I find that the Respondent had notice
early in the proceeding of the contract provisions which the
General Counsel was asserting were binding upon the
Respondent. The contract itself was introduced in evidence
through the first witness called by counsel for the General
Counsel on the first day of the hearing.
In addition, it was clear from the outset of the hearing
that the parties disagreed as to the scope of the unit
coverage of the contract. The Respondent contended that
the contract only applied to the cooks and what it called
backroom employees, whereas the General Counsel and
the Charging Party Union contended that the contract
provisions covered a broader unit. In these circumstances,
the appropriateness of the unit was placed in issue by the
pleadings; the contentions were made early in the hearing
as to the scope of the unit coverage of the contract, and the
opportunity afforded to all of the parties to develop the
evidence.
E. The Meeting at Jack London Square in
Oakland
In September 1975 Frank Van Kempen, a business agent
of the Union, received a telephone call from Larry Blake
who asked to set up a meeting with Van Kempen regarding
health and welfare matters which were being investigated.
About 3 days later the two met at a restaurant in Jack
London Square in Oakland. Van Kempen testified regard-
ing his conversation with Blake:
Well, he said he was being investigated by the health
and welfare fund for the employees and pension for the
members, and at that time he did not know what his
status was, whether he owed or not.
He asked me if he did owe could he have an
opportunity to start with a clean slate.
Van Kempen did not remember what his response was to
Blake's inquiry regarding the clean slate, but he said that
he did not offer any deal to Blake and he did not have any
authority regarding health and welfare matters.
Nevertheless, by checking copies from the billing for the
trust fund, Van Kempen determined in January 1976 that
the Respondent was making health and welfare payments
on all of its five cooks; one of its two managers; and one of
its three dishwashers at that time. Although the list marked
by Van Kempen does not indicate that health and welfare
contributions were being paid on behalf of busboy
Marcelino Anchante, Blake testified that the Respondent
had made such contributions on behalf of Anchante since
about December 1975.
Blake's version of his conversation with Van Kempen
was different from the version given by Van Kempen.
Blake acknowledged that he had received notification from
the Union's health and welfare or pension organization
that a request was being made for an audit of the
Respondent's health and welfare contributions, but he said
that was not the purpose of his meeting in Jack London
Square with Van Kempen. According to Blake, Van
Kempen suggested a deal to him whereby Blake's employ-
ees would join the Union in toto and the Union would wipe
the slate clean and begin anew.
At first, Blake testified that he had taped the entire
conversation with Van Kempen at Jack London Square. It
was his practice to tape-record such conversations with
Union Representatives Van Kempen and Faber. However,
he subsequently said that he had not tape-recorded the
meeting at Jack London Square. No tape recordings of any
conversations were produced at the hearing.
After considering the foregoing and the entire record, I
have decided to base the findings of fact in this section
upon the testimony given by Van Kempen rather than the
testimony of Blake insofar as it conflicts with Van
Kempen's version. It seems to me that Van Kempen's
version is more consistent with the other findings of fact in
other sections and is more probable than the one offered
by Blake.
F. The Meeting Between Larry Blake and Van
Kempen in January 1976
Three of the Respondent's waitresses joined the Union in
early January 1976. They were Charging Party Ackerson,
Lynn Fine, and Nora Sercovich. Within a few weeks after
they joined the Union, they complained to Van Kempen
that they were not being paid union scale and in addition
they complained that their hours were being reduced. Van
Kempen suggested that they file charges with the Board.
Sometime thereafter Van Kempen received a telephone
call to meet with Larry Blake at his office on Harrison
Street. Van Kempen testified on direct examination
regarding that conversation in Blake's office as follows:
A. Mr. Blake made a statement saying that he was
not happy what had been going on around in Berkeley
with all the restaurants opening up, there was not much
organizing being done, and the reason he signed a
contract was because Mr. Faber, an associate of mine,
made a statement that, well, he made a promise of
organizing, and Mr. Faber was supposed to have made
a statement that the contract was only good for the
people who worked in the back and not for the people
out in front.
Q. Did Mr. Faber [sic] say the people in front were
covered by the contract?
A. He said they were not covered by the contract.
While the record clearly shows that Van Kempen was
asked on direct examination at the hearing whether Faber
said the people in the front were covered by the contract, I
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
believe this was merely a slip of the tongue by counsel for
the General Counsel. No party has moved to correct the
record in this regard. However, I find that it is clear from
the context of the testimony that Van Kempen actually had
reference to Blake's statement to him and not to any
statement made by Business Agent Faber. This finding is
also consistent with the Respondent's position that the
contract did not cover the employees working in the front
part of the restaurant.
The foregoing findings in this section are based upon
documentary evidence and also on the testimony of Van
Kempen. Blake related a second conversation with Van
Kempen which Blake stated he had tape-recorded. How-
ever, no tape recording was produced. Blake placed the
time of the conversation as being sometime in mid-
December 1975 and about I week after the conversation at
Jack London Square. According to Blake, Van Kempen
once again suggested a deal at that second meeting and
Blake inquired why the Union was so interested at that
time. Blake's version is that Van Kempen responded with a
somewhat vulgar expression which meant that the Union
had been lethargic for 15 years. In his testimony, Van
Kempen did not recall that he made such a response as was
attributed to him by Blake. Blake said that he told Van
Kempen that he would join the Union if the Union would
organize the 35 to 40 restaurants in the area.
At another point in his testimony, Blake related a
conversation with Van Kempen which he also placed as
having taken place in December 1975. However, he said it
was at a restaurant in Jack London Square. As noted
earlier, Van Kempen said that the conversation at Jack
London Square took place in September 1975. Blake stated
that Van Kempen told him that three employees had joined
the Union and requested that their wage rates be raised to
the contract level. While Blake asserted that this occurred
in December, it is uncontradicted that the three waitresses
did not join the Union until early January 1976.
For the reasons previously indicated, I find that Van
Kempen has related the more reliable version of the
conversation between himself and Blake, and I base the
findings of fact on Van Kempen's testimony.
G. Larry Blake Resumed a More Active Role in
Management of the Restaurant
Blake indicated that he began to take a more active part
in the management of the restaurant beginning in late 1975
and early 1976 than he had for several years just prior
thereto. For several years he had visited the restaurant only
about once a week for an hour or so. Due to changing
circumstances, Blake increased his role in the management
of the restaurant. He explained:
As we brushed on it a moment ago, Berkeley, and
specifically Telegraph Avenue, where Larry Blake's is
located, has suffered turmoil, politically, with riots in
the streets, for a long period of time, from 1964 through
1972, during which time many groups and agencies, in
addition to the union, lost interest in that area.
Our business, of course, suffered a great deal, and I
began to watch the district more closely after 1972
when I began to notice the riots had ceased, that the
nature of people living there and visiting there was
again changing, and there were differences in the
attitudes of the students at the school. They became
less politically motivated and in a sense some degree of
normalcy began to return to the area along somewhere
in 1973.
It was still nowhere near normal until the middle
perhaps of 1975, and that is when I thought perhaps it
might again be worth reconsidering in terms of
spending the time trying to develop a successful
business.
t* * * *
So, I began to spend the time late in '75 and actively
once I was able to clear my responsibilities in the real
estate end [and] the consulting end along about
February 1976, I became free to spend the time to do
so.
H. Larry Blake's Letter to the Joint Executive
Board
On January 13, 1976, Larry Blake sent the following
letter to the Joint Executive Board:
On January 19, 1974, I executed the standard
restaurant union contract at the behest and urging of
the union's business agent Mr. Jack Faber. Mr. Faber
represented to me at the time that the union would
immediately organize all restaurants in the Berkeley,
and in particular that area served by my individual
restaurant. It was on the basis of that specific
representation that I executed the above-mentioned
contract. At no time since that execution has the union
attempted in any way to organize all restaurants in my
area. I therefore contend that the union did not intend
to attempt any such organization at any time and that
the representations made by Mr. Faber on behalf of the
union were false.
It is, therefore, my contention that the above-
mentioned contract is void in its inception based on its
representation. It is, therefore my further contention
that the contract has no force and effect and is void.
The foregoing is based on documentary evidence
introduced at the hearing.
Although the letter does not so state, Blake said that the
letter was written in response to the three waitresses having
joined the Union and the busmen having joined earlier. In
his view the Union had breached Faber's verbal under-
standing with him to maintain the "status quo" by sending
a business agent to organize my people who had heretofore
been excluded from organization."
As indicated earlier, I have found that Faber did not
make such a verbal agreement with Blake.
1. Ackerson's Conversation With Escalante on
Saturday, January 10, 1976
Dinah Ackerson began working for the Respondent in
October 1973 and continued to work as a waitress for the
Respondent until she was terminated on March 10, 1976.
32
BLAKE'S RESTAURANT
During most of the time of her employment at the
restaurant, she was a student at the University of
California at Berkeley. She was graduated from the
university with a degree in archeology in December 1975.
Usually she worked from 15 to 20 hours a week at the
restaurant while she was attending the university. She said
that she worked more hours during the summer months
and also after her graduation.
On Saturday, January 10, 1976, Percy Escalante, who at
that point in time was manager of the restaurant,
telephoned Ackerson to inform her of a general reduction
in working hours for employees. During that conversation
Ackerson informed Escalante that she had joined the
Union. In fact, Ackerson and waitress Fine had joined the
Union earlier that same week on Tuesday, January 6, 1976,
and waitress Sercovich had joined on Wednesday, January
7, 1976.
Ackerson appeared as a witness on three different
occasions during the hearing and testified several times
with regard to her telephone conversation with Escalante,
just as she did with respect to many of her conversations
with others. Nevertheless, her last recital of that telephone
conversation during the General Counsel's rebuttal case
while she was being cross-examined is the most detailed
and coherent account by her of that particular event.
Ackerson testified at that point:
The phone rang, I picked it up, and Percy said,
"Dinah, this is Percy." And we chatted about ridiculous
things, then he said, "Listen, I called you because I
have to cut back everybody's hours." And I said,
"Why?" And he said, Mrs. Blake had told him to.
And I said, "Well, why?" And he said he had to
reduce everyone's hours to below 20 hours a week
because the health and welfare people were investigat-
ing them, and she wanted all the students, all the front
end employees hours below 20 so that the payroll
would show that they wouldn't have to pay health and
welfare benefits.
I was surprised, and I told him that my hours
couldn't be reduced. Well, that he wasn't supposed to
reduce my hours, because I had joined the Union. He
sounded very surprised, and he said, "1 wish you hadn't
done that. I wish you had talked to me before you did
that."
And I said, well, it was done. And he said that it
could be very bad now, Mrs. Blake could make it very
difficult for us. And I couldn't see that we were getting
anywhere [anylmore. And then he asked me what
hours I wanted, what shifts I wanted, since he said that
- well, since I worked there a long time, I usually
would end up getting the better shifts to work. And I
told him. And we chatted a little bit more and said
good-bye.
The foregoing findings of fact are based upon the
testimony of Ackerson who is credited as giving the
complete and accurate version of the conversation. Percy
Escalan te gave a shorter version of the telephone call.
Escalante was a manager of the restaurant from June
1972 until August 19, 1976, when he voluntarily quit work
there and became an auditor employed by the State of
California. Escalante said that it was a Saturday in mid-
January 1976 when he telephoned Ackerson regarding her
working hours. He said that he told her that she was not
going to get the hours which she had requested, and he
suggested to her that she speak with Ms. Blake. Escalante
said that Ackerson told him that she was in the Union and
that she should get the hours now. Escalante testified that
he told her that she would have to discuss it with Ms.
Blake.
Escalante said that Ms. Blake told him in January 1976
that most of the people working in the restaurant were
students and that they should not work over 20 hours. He
said that Ms. Blake told him that "The Union requires us
to hire people under 20 hours, only students." Such
testimony indicates that Ms. Blake understood the union
contract to apply to the front end employees, but Ms.
Blake indicated to the contrary in her testimony. At first
she testified that she told bookkeeper Alice Williams, "No,
we don't have front end Union employees," when Williams
informed her that the three waitresses had joined the
Union and asked whether their pay should be increased.
However, after being confronted during cross-examination
with her affidavit which was given in March 1976, Ms.
Blake acknowledged that her response to Ms. Williams
was: "I said we would wait and hear from the Union." I
found Escalante's account of his conversation with Ms.
Blake to be convincing.
J. Ackerson's Conversation With Escalante on
Sunday, January 11, 1976
The next day Ackerson had a brief conversation with
Escalante at the restaurant. She said that Sercovich was
present during the conversation. Ackerson testified:
We were talking about what had just happened, our
joining the Union, and I asked Percy what might
happen, what would be the result, and he said Mrs.
Blake could make things very difficult, very hard for us.
I asked in what way, and he said she might keep us at a
level of 20 hours a week and not permit us to work
anymore, or she might make us work a full schedule,
that is 36 to 40 hours a week and keep us to that, or she
might make us work down in the Rathskeller, which is
- well, it is not a very good place to work in
comparison to the regular dining hall.
At the hearing Ackerson elaborated on the basis for her
opinion with respect to the Rathskeller as contrasted with
the upstairs dining area. She gave her view that: "The
Rathskeller is more rowdy, more physically unbearable
than upstairs in the regular dining hall. There are notably
less tips than upstairs where I was working."
Sercovich was not called as a witness in this proceeding.
No contention is made that the statements by Escalante,
who was a manager and an admitted supervisor within the
meaning of the Act at that point in time, constituted
violations of the Act. Instead, the counsel for the General
Counsel urges that the foregoing shows union animus on
the part of the Respondent. Escalante did not contradict
the version given by Ackerson. Thus, her testimony with
regard to the foregoing is undenied and is credited.
33
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To Ackerson's knowledge neither she nor the other two
waitresses who joined the Union were treated any differ-
ently insofar as scheduled hours were concerned. Ackerson
said that both Fine and Sercovich voluntarily left the
Respondent's employment around the first or second week
of February 1976.
Ackerson said that she and Escalante were personal
friends. According to her, although Escalante was a
manager, they both formed a common opinion concerning
the restaurant. She testified "this went on for a long time.
We both commonly agreed the service was lousy, the food
was lousy, the place was filthy, and we just worked there to
get through school."
K. Ackerson's Conversation With Larry Blake on
Wednesday, February 11, 1976
While Ackerson was at work at the restaurant on
Wednesday evening, February 11, 1976, Larry Blake
approached her and asked why she was still working there.
He told her that many of his former employees had gone
on to better paying positions after learning the basics in his
restaurant. Blake told her that thousands of students had
come through the place and worked, but when they left
college, they went on to better jobs.
Blake wanted to know what she was trying to do and
why she was still there. Ackerson testified that her response
was: "I said all I wanted was union wages and better hours.
I thought I was entitled to them as a union member. I
asked him what he would do if he were in my shoes, and he
said he would stop what I was doing." She added that "he
said I was rocking the boat in the activities I was doing."
Larry Blake's recall of his conversation with Ackerson on
that occasion was different. He pointed out that he had
employed over 10,000 persons who had been students for
the most part, and that he had often offered them friendly
advice. Blake acknowledged that he had known earlier in
January 1976 that Ackerson, Fine, and Sercovich had
joined the Union. He said that he was not overly concerned
about that because it was often a thing which a student did
after receiving basic training in his restaurant and then
getting a job in a more professional restaurant.
Blake said that he pointed out to Ackerson that she could
leave the restaurant and earn as much as $40 to $80 for an
evening's work as a waitress in another restaurant, whereas
in the Respondent's restaurant she would be fortunate to
earn $12 in an evening. He explained to her that the nature
of his business involved the hiring of students who needed
a small temporary income while they were getting through
school and who needed a restaurant which could make
adjustments to their schedule. Blake continued by stating:
I explained to her that a union operation per se
where everybody would be required to work a full 40
hours a week in order to justify $50 or $60 a month
welfare payments, in order to justify all of the things
that were required by the Union, you had to allow for
the students, you had to give them certain recompense
like making your schedules very flexible from week to
week and from day to day and from hour to hour in
many cases, and that this was the only way our business
would work, and that many other students had seen
this, had recognized the advantages of it.
I pointed out to her that in 37 and a half years I had
never had a labor dispute with any employee, and that I
couldn't understand this one, and asked her then after
this presentation when it was so much more advanta-
geous for her to go do it as others had done when they
graduated, to go on into their own field of endeavor or
to go on into a better job, why didn't she do it.
Her answer at the time was, "Oh, I'm going to see
this through, it's a great experience."
After considering the foregoing and the other events and
conversations in this proceeding, I have decided to credit
Ackerson's version of these events and conversations while
following the guidance from the Board in its decision in
Northridge Knitting Mills, Inc., 223 NLRB 230, 235 (1976).
The weight of the evidence, established facts, inherent
probabilities, and reasonable inferences support Acker-
son's account where it is in conflict with the accounts given
by others.
L. Ackerson's Conversation With Larry Blake on
Wednesday, February 18, 1976
Ackerson was scheduled to report for work at 6 p.m. on
Wednesday, February 18, 1976, but she arrived at work
about 5 minutes late. Larry Blake was standing by the cash
register when she walked past him. Blake said: "I don't
care how many unions you join, you are late one more time
and you are out."
Prior to that time Ackerson had been late for work on
two or three occasions which she acknowledged were her
own fault. She conceded that she had also been late a
couple of other times, but she claimed that she was not at
fault on those occasions because she had not been
informed in changes in her schedule. Nevertheless, whether
she was at fault or not, she had never before been warned
about being late for work.
Based upon Ackerson's observation of other employees
who worked at the Respondent's restaurant, Ackerson
formed the opinion that the other employees were
"frequently not on time."
The foregoing findings are based upon the testimony of
Ackerson who was not specifically contradicted with
respect to the foregoing and who is credited.
M. Ackerson's Conversation With Larry Blake on
Thursday, February 19, or Friday, February 20, 1976
A day or two following the conversation with Larry
Blake referred to above on February 18, 1976, there was
still another conversation at the restaurant between the
two. Thus, the conversation would have taken place either
on Thursday, February 19, or Friday, February 20, 1976.
While Ackerson was at work in the dining area, Blake
asked her to come over and sit with him in the booth and
talk. Blake asked Ackerson what she was trying to prove
and what she was trying to do. Ackerson replied that she
was not trying to prove anything, and that she was just
trying to get what she thought were her rights.
34
BLAKE'S RESTAURANT
Blake told her that he knew a lot of people in the
restaurant business in northern California. He said that he
would be willing to find Ackerson a job, perhaps a better
one than she had. He told her that he would do anything to
help her get a better job. Blake asked if she would be
interested. Ackerson replied no and commented that it
would be a good way to get her out of the way. She said
that Blake rephrased the question by "saying if he had met
me, say, in a bar and he thought I was a capable person
and offered me a job, would I accept it then, and I said I
probably still wouldn't."
The conversation then shifted to Lynn Fine who had
formerly worked as a waitress at the restaurant. Blake said
that Fine was working at the Marriott in Berkeley. He said
that the owner of the Marriott was a good friend and "with
one phone call, he could have her lose her job by telling the
owner he had hired a trouble-maker."
Blake told Ackerson that she was creating tension among
the employees by her actions and that she was talking to
customers about the problem. Blake stated that three to
five customers had complained to him about what
Ackerson was saying and that it was bad for business.
Blake stated that Ackerson's "conscious and unconscious
attitude were hurting his business and I had a negative
attitude toward him. And that was a bad situation."
The foregoing findings of fact are based upon Ackerson's
testimony. Blake's version is that he had a discussion with
Ackerson about 2 or 3 weeks prior to her dismissal and that
he asked if she was talking with customers regarding her
troubles. According to Blake, Ackerson told him, "Well, all
of us are." Blake testified that he then asked her whether
she had talked to Don Thompson and she responded,
"Well, he's a friend of mine, of course, I told him."
Ackerson's testimony is that it was on March 10, 1976,
during their conversations that Larry Blake said that she
was downgrading the restaurant image and she replied,
"Yes, but I'm not the only one." As previously indicated, I
have credited Ackerson's testimony.
N. The Events Concerning Ackerson During the
Evening of Wednesday, March 10, 1976
i. Her conversation with Leona Blake behind the
bar
On Wednesday, March 10, 1976, Ackerson was sched-
uled to work at the restaurant from 6 p.m. to 2 a.m., but she
arrived at work early, about 5:30 p.m. Ackerson looked at
the posted schedule and noticed that she was scheduled to
work her regular 19-1/2 hours. However, she also noted
that at least one of the other employees, Tricia Harris, was
scheduled to work more hours.
Ackerson saw Leona Blake, the wife of Larry Blake and
a co-owner and general manager of the restaurant, working
behind the bar. Ackerson asked Ms. Blake if Ackerson
would also have more working hours beginning next week.
Ms. Blake replied that she would have to make a call, and
that if Ackerson did have more hours, Ackerson would
have to work those hours in the Rathskeller.
The foregoing findings of fact are based upon the
credited testimony of Ackerson. Ms. Blake testified that the
conversation took place about 6 p.m. while she was
working behind the bar in the Rathskeller. She said that
customers were present at that time and that she was
making change for a customer. She said that Ackerson
asked her about increasing her hours and that she replied
that she would have to take the matter up with Percy
Escalante. Ms. Blake said that Ackerson persisted in
questioning her about increasing her working hours, so Ms.
Blake responded, "Dinah, if I have to increase your hours,
it may require you working the Rathskeller some hours."
Ms. Blake testified that Ackerson replied in a loud voice, "I
will not," and walked upstairs.
As previously indicated, I have found the account related
by Ackerson to be the credible version, and I have based
the findings of fact on her testimony.
2. Her conversation with the Blakes 2 hours later
in the Rathskeller
About 2 hours later, which would have been around 8
p.m., during the evening of March 10, 1976, Ackerson had
a second conversation with Ms. Blake. Larry Blake was
also present during this conversation as he and Ms. Blake
were seated at a table and having a glass of beer. Ackerson
was on her way to the restrooms which are located on the
lower floor where the Rathskeller is also located. Custom-
ers were present in the Rathskeller.
Ackerson asked Ms. Blake if she had decided whether or
not Ackerson could work the additional hours next week.
Ms. Blake replied no, that she had not checked into it, or
that she had not contacted Percy Escalante. Ackerson said
that she needed to know because she needed the money.
Larry Blake then told Ackerson, "Don't make another
problem. We have worked 12 hours today already. We are
tired. You are not to present any more problems, and get
your ass upstairs and go to work."
Ackerson walked a few steps away from the Blakes and
then she came back and told Larry Blake that she did not
like to be referred to that way. Blake did not say anything.
Ackerson left and went upstairs.
The foregoing findings are based upon the testimony of
Ackerson. Larry Blake's version differs from her account.
He said that Ackerson asked Ms. Blake whether she was
going to get more hours and Ms. Blake replied that she had
not had a chance to think it over and that she had not
talked with her advisor. Blake said that Ackerson asked
who her advisor was, and that Ms. Blake responded, "I
simply can't do it at this moment, and I haven't had a
chance to talk to Percy. Let us have time to think about it.
We'll talk about it tomorrow, or when he says so."
Larry Blake described Ackerson's voice "to be shrill and
she shrieked, and it was embarrassing, and in the room
were some 35 customers," so Larry Blake told her that they
had had a long day and did not want to talk about this
now. He stated that he told her that he and Ms. Blake
would take the matter under consideration and talk to
Ackerson later. However, Blake said that Ackerson told
him that she was no longer a student; that she had a right
to have more time, and that she should not work in the
Rathskeller.
At that point Blake testified that he wanted the
conversation brought to an end, so he told her, "Dinah,
this is it. We've been reasonable with you. You get your ass
35
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back upstairs to work, or you won't be working here,
period." According to Blake, she went away for a few steps
and then returned and said, "I object to your talking to my
rear end in that manner," and then went to work.
Percy Escalante's testimony regarding the foregoing was
brief. He was working at the bar at that point in time. He
estimated that he was standing about 10 to 12 feet away
from the participants. He said that Larry Blake had his
back to him. All that Escalante heard was Ackerson say to
Larry Blake: "You shouldn't talk to me like that."
Ms. Blake testified that it was around 8 p.m. when
Ackerson again approached her regarding increasing her
working hours. Ms. Blake said that she was having a glass
of wine and that Mr. Blake was having a beer while they
were sitting at a table in the Rathskeller. She testified that
Ackerson accused Ms. Blake of discriminating against her.
In Ms. Blake's opinion Ackerson appeared to be agitated
and her voice was getting louder. She said that she told
Ackerson that she had worked a long day and that she was
going to take this up with her advisor. Ms. Blake said that
Ackerson walked away and then returned and asked,
"Who is your advisor?" At that point she stated that Larry
Blake told Ackerson that she had been bothering them long
enough. She testified: "At the end of the conversation, he
told her to get her ass upstairs and go to work."
For the reasons indicated earlier, I have credited
Ackerson's testimony and base the findings of fact on her
version of this conversation.
3. Her conversation with Larry Blake in the
upstairs dining hall
A few minutes later that evening Ackerson had another
conversation with Larry Blake. This conversation took
place in the upstairs dining hall, and it was also in the
presence of customers who were in the dining room.
Ackerson again began the conversation. She told Blake
that she thought he was being unfair, extremely unkind,
and rude to her. Blake replied that he had every right to do
so, and that she was a bad worker and a troublemaker.
Ackerson asked why she was a bad worker and he did not
answer. However, Ackerson testified that Blake told her:
He went on to say some employees called and said I
called him a son of a bitch behind his back, and I asked
him for any names of these employees, who they could
possibly be, and he refused to answer, he ignored the
question and went on saying I was a bad worker and a
trouble-maker. He said I was talking to customers
about the problem. Again, I asked who and he refused
to explain.
He continued the accusations saying I was a bad
worker, a trouble-maker and by that time we were both
yelling. He never once gave me any answers to any
questions I asked, and then he said if I continued to
press the issue, I would be fired.
* *
He said the tension I was creating among his
employees made it - what I was doing made it bad for
business and the restaurant. He said I was the reason
his restaurant was doing so badly.
As noted previously, Ackerson admitted that when Larry
Blake accused her of downgrading the restaurant's image,
she answered: "Yes, but I'm not the only one."
At the hearing Ackerson specifically denied having
characterized Larry Blake as an s.o.b. to Percy Escalante or
any other employee. Escalante also testified that Ackerson
had not called Larry Blake an s.o.b. or any other names to
him. Escalante said that Ackerson did tell him that Larry
Blake was unfair. Escalante testified that he had not
received any complaints from customers regarding Acker-
son's work.
Larry Blake had a different recollection of their conver-
sation. He testified that he was at the dessert counter and
wrapping some pastries to take home when Ackerson
approached him and again asked why she could not have
more working hours. He said that she accused him of
singling her out for harassment because of her union
activities. Blake told her to cut it out or he would let her go.
He said that people were listening and it was not good for
business. He told her to get back to work. Blake described
Ackerson's tone of voice in this manner: "It grew in a
crescendo, beginning first with just a normal voice, but
getting louder and ultimately shrieking, to the point where
all heads in the room were turning around looking."
For the reasons previously stated, I have accepted
Ackerson's testimony as the credible version of these
conversations, and I have based the findings of fact on her
testimony.
4. Her conversation with Larry Blake a few
seconds later
A few seconds later after the foregoing conversation,
Ackerson initiated still another conversation with Larry
Blake in the upstairs dining area. Customers of the
restaurant were in the dining room.
She told Blake that she did not want either one of them
to get mad, but she would like to know, if she did get more
hours to work next week, why would she have to work in
the Rathskeller. She told him that since she had worked in
the restaurant for 2-1/2 years, she had a lot of seniority.
Ackerson said that Blake "yelled at me that the restaurant
is not union, that there is no seniority system, that I was a
bad worker and fired me."
At that point Ackerson began crying. She followed Blake
downstairs and asked, "Am I really fired?" Blake replied
"yes." Ackerson said that Escalante then came upstairs and
she asked him why, what was wrong, and what she had
done. Escalante replied that he did not know. Ackerson got
her things and left.
Larry Blake gave a different version of the conversation
than that related above by Ackerson. While he related the
event in his testimony at the hearing, he also gave the
following account in an affidavit which he made only 9
days after the incident took place:
I then finished wrapping up the items of food I was
taking home. I attended to some details at the cash
register. There was only a lapse of seven or eight
minutes when Dinah came back and began to reopen
the conversation, again loudly. She said she was going
to keep this matter before the National Labor Relations
36
BLAKE'S RESTAURANT
Board, no matter how long it took her. I said to her,
"Dinah, I warned you twice, this is it, you're fired." She
got her coat and purse. I thought it very odd for a
woman who had only a few minutes before been tense,
she was now smiling. That was the end of the incident.
She went home.
Blake testified that his affidavit was not totally accurate
in indicating that he fired Ackerson immediately after she
mentioned the Board. In any event, I have credited the
testimony of Ackerson previously and I have based the
findings of fact on her version.
O. The Conversation Between Larry Blake and
Donald E. Thompson
Donald E. Thompson lives in the same building in which
the Respondent's restaurant is located. He estimated that
he ate meals at the restaurant at least once every two days
and had been doing so since August 1956.
In July or August 1976 Thompson had a conversation
with Larry Blake on the street corner. Thompson testified:
I had just finished eating at another restaurant across
the street, and I was returning to my apartment. And of
course, that's in the same building in which Mr. Blake's
restaurant is located. And Mr. Blake was standing at
the corner, the approach to my apartment.
I greeted Mr. Blake. He greeted me. And it must
have been about, I'd say, 5:30 or 6:00 at night. It was in
the evening, with the sun just setting, and he had
trouble looking at me, he was - he kept shielding his
eyes with his hand.
And he asked me at that time - the substance of
what he asked me at that time was that, "Some of my
employees tell me that you've stopped patronizing my
restaurant," or that's not exactly his words - "Stopped
patronizing my restaurant because I was a mean
employer."
And I denied this vehemently at the time, and I said
that I had known him since August of 1956 and that I
did not believe he was a mean employer, and that the
reason I stopped was because I wanted to lose weight,
the reason I stopped going into his restaurant was
because I wanted to lose weight. I believe that is the
substance of what I said to him.
Thompson knew Dinah Ackerson who acted as his
waitress at times. He considered her to be a friend. From
time to time Thompson joked about the food served at the
restaurant. He said that Ackerson had not talked with him
regarding the food, although Ackerson said that she had
expressed her view that the food and service were lousy
and the place dirty. However, Thompson said that he never
complained to Blake regarding Ackerson.
The foregoing findings are based upon the credited
testimony given by Thompson. He acknowledged that he
considered Ackerson to be a friend and Ackerson also said
that he was a very personal friend with whom she met often
for dinner. However, he is a longtime and frequent
customer of Larry Blake's and exhibited no discernible
hostility towards Blake. Thompson was retired from the
Armed Forces after sustaining an injury and has been
visiting the Respondent's restaurant for 20 years.
Nevertheless, the conversation between Thompson and
Blake took place at least 7 or 8 months after the
termination of Ackerson and no mention was made of
Ackerson's name in the conversation. Blake described an
earlier conversation with Thompson which he said took
place prior to the discharge of Ackerson. In that earlier
conversation Blake said that he inquired of Thompson
whether any of the gossip that was going around the
restaurant had been disturbing to him or had reached his
ears. According to Blake, Thompson replied that he knew
what was going on and that it bothered him a little bit.
Significantly, no reference was made in that conversation
to Ackerson.
Blake alluded to three to six other unnamed customers
who had complained about being told of the restaurant's
problems by employees. However, Blake chose not to
disclose the identity of those persons because he felt that
they were good customers of the restaurant. Also, he did
not reveal the specific nature of the complaints, nor the
time and circumstances in which such complaints were
made.
P. Conclusions
Based upon the credited testimony given by Business
Agent Faber, I find that the Union and the Respondent
entered into a collective-bargaining agreement on January
29, 1974, which by its terms is applicable to the employees
of the Respondent in the following described unit:
All employees engaged in or in connection with the
preparation, handling, and serving of food and/or
beverages, including without limitation those employed
in the classifications set forth in Appendices A, B, and
C of the collective-bargaining agreement, and office
workers employed by the Respondent at its Berkeley,
California, restaurant, excluding guards and supervi-
sors as defined in the Act.
The credible evidence does not establish that the
collective-bargaining agreement was obtained through any
form of fraud, coercion, duress, or deceit. The recognition
clause of the contract is not so ambiguous as to require
interpretation by parol evidence. For a discussion of the
parol evidence rule as it was applied in another case arising
in the State of California, see the discussion by the
Administrative Law Judge, whose findings were adopted
by the Board, in Teamsters, Chauffeurs, Warehousemen and
Helpers Union, Local No. 439, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of Ameri-
ca, (Pittsburgh-Des Moines Steel Company), 196 NLRB 971,
975 (1972):
The parole evidence rule, in its simplest terms
prohibits the introduction of any extrinsic evidence to
vary or add to the terms of an integrated legal
instrument. It does not exclude evidence that the
instrument is invalid or ineffective or to prove facts
rendering an agreement voidable for mistake, illegality,
fraud, or duress. It does not exclude evidence to explain
37
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a latent ambiguity in the instrument. State courts in
California follow the "plain meaning rule," i.e.:
If no ambiguity or uncertainty is asserted, and the
writing has a clear meaning on its face, parol
evidence is not admissible to interpret it. The
theory is that unless there is some ambiguity or
uncertainty there is no need for the extrinsic
evidence; the plain meaning of the words should
be accepted and not disturbed by evidence
showing that they were used in a different sense.
[Witkin, California Evidence Section 373.]
The United States Court of Appeals for the Ninth
Circuit, in a case arising in California has applied the
"plain meaning" rule. Commodity Credit Corporation v.
Rosenberg Bros. & Co., 243 F.2d 504, 508 (1957).
Although the rule has been vigorously attacked by
Wigmore, (Evidence §2461, et seq. ) and others, and
although language apparently clear may sometimes be
shown by surrounding circumstances to mean some-
thing different from what is apparent, the dictum of the
court in Eustis Mining Co. v. Beer, 239 Fed. 976, 982, is
good sense as well as good law:
We must realize, not only that there is a critical
breaking point, as it were, beyond which no
language can be forced, but that in approaching
that limit, the strain increases.
It is further concluded that the Union's majority status in
the contractual unit is presumed to continue at least during
the life of the contract and even thereafter. As the Board
held in its decision in Walter E. Heyman d/b/a Stanwood
Thriftmart, 216 NLRB 852, 853 (1975):
A contract, lawful on its face, raises a presumption
that the contracting union was the majority representa-
tive at the time the contract was executed, during the
life of the contract, and thereafter. An employer,
however, may defend a refusal to bargain on the terms
of a new contract if it can "demonstrate by objective
considerations that it has some reasonable grounds for
believing that the union has lost its majority status
.... " Respondent contends that no presumption of
majority status attaches to its contract with the Union
because the Union lacked the necessary majority status
at the time the contract was executed.
The Board has held that events time-barred by the
limitations provision of Section 10(b) of the Act may
not be used to overcome the presumption of majority
status raised by a contract valid on its face. The
contract contains a clause which recognized the Union
as majority representative and a lawful union-security
clause. The legality of the Union's initial recognition by
Respondent was precluded by Section 10(b) of the Act
from being attacked at the time of Respondent's
termination of the contract and withdrawal of recogni-
tion from the Union. Therefore, we find that Respon-
dent may not defend its refusal to continue to recognize
and bargain with the Union by an attack on its initial
recognition of the Union. [Footnotes omitted.]
In the instant case, the contract was executed on January
29, 1974, which is outside the 10(b) period of the charge in
this matter. The Board has recently reiterated the principle
of Bryan Manufacturing Company, 362 U.S. 411 (1960), in
its decision in Tahoe Nugget, Inc., d/b/a Jim Kelley's Tahoe
Nugget, 227 NLRB 357 (1976). In that case the Board
stated:
The Board has held, in light of the Supreme Court's
decision in Bryan Manufacturing Co., that a respondent
may not defend against a refusal-to-bargain allegation
on the ground that original recognition, occurring more
than 6 months before charges had been filed in the
proceeding raising the issue, was unlawful. Any such
defense is barred by Section 10(b) of the Act, which, as
the Court explained in Bryan, was specifically intended
by Congress to apply to agreements with minority
unions in order to stabilize bargaining relationships.
[Footnotes omitted.]
In accord with the foregoing Board precedents, I
conclude that the Union's majority status in the contrac-
tual unit is presumed as of the time that the collective-
bargaining agreement was entered into between the Union
and the Employer. I further find in accord with Board
precedents that the Union's majority status in this case is
presumed to have continued at least during the life of the
contract, which in this instance is still in existence, and that
the presumption has not been rebutted. I also conclude
that the evidence does not establish that the Union has
abandoned representation of the contractual unit since it
entered into the collective-bargaining agreement on Janu-
ary 29, 1974.
Additionally, I conclude that the Union's failure to file a
grievance concerning the scope of the coverage of the
contract or the termination of Ackerson does not preclude
the Union from pursuing the matters through the filing of
unfair labor practice charges, nor does it preclude Charg-
ing Party Ackerson from pursuing her own unfair labor
practice charges.
After considering all of the foregoing, I conclude that by
refusing to recognize and bargain with the Union as the
exclusive representative of the employees in the appropri-
ate unit described above, and by repudiating the collective-
bargaining agreement with the Union, the Respondent has
violated Section 8(aXl) and (5) of the Act.
The General Counsel's complaint alleges that the
Respondent's refusal to bargain with the Union began "on
an unknown date in September 1975." I conclude that the
evidence does not support that allegation as to the time
that the unfair labor practice commenced. Instead, I
conclude that the Respondent's refusal to recognize and
bargain with the Union in the appropriate contractual unit
commenced on or about January 13, 1976. That is the date
of the Respondent's letter to the Joint Executive Board.
The contents of the letter have been set forth previously.
I am not unmindful that Larry Blake reiterated the
Respondent's position in his conversation with Van
Kempen in January 1976. While the exact date of that
meeting was not established, it appears that it took place a
few weeks after the three waitresses joined the Union in
early January 1976. Therefore, I have concluded that their
meeting took place shortly after the January 13, 1976, letter
was sent.
38
BLAKE'S RESTAURANT
The Respondent's answer to the General Counsel's
complaint did admit the paragraph in which the General
Counsel alleged a refusal to bargain with the Union since
"an unknown date in September 1975." Nevertheless, the
complaint did not allege the appropriate contractual unit.
It referred to the more limited unit description in the
General Counsel's complaint. As I have discussed earlier, I
find the contractual unit to be the appropriate unit
description rather than the one urged by the General
Counsel. Accordingly, I conclude that the admission in the
Respondent's answer does not establish that the Respon-
dent refused to bargain with the Union in September 1975
in the contractual appropriate unit.
Turning now to the allegations regarding the termination
of Ackerson, it is well to note first the Board's holding in
Herb Arthur, Inc., d/b/a Custom Carpet Installations, 225
NLRB 1036 (1976), wherein the Board stated at 1037:
The critical question in determining whether a
violation of Section 8(a)(3) has occurred is whether the
employer has encouraged or discouraged membership
in a labor organization by its discriminatory action. It
is well settled that a specific antiunion purpose need
not be proved where a natural consequence of an
employer's action is such encouragement or discour-
agement.
Even if the Respondent had a legitimate reason for
terminating Ackerson, a violation of the Act may be found
if Ackerson was, in fact, discharged because of her union
membership and union activities. The Board adopted the
findings of the Administrative Law Judge in Karl's Farm
Dairy, Inc., 223 NLRB 211 (1976), where he concluded at
215:
The issue here, as in every Section 8(a)(3) termina-
tion case, is a determination of the true purpose or real
motive for the discharge. If McCoy was, in fact,
discharged because of his union activities, it makes no
difference that there may also have been a legitimate
reason for firing him. Conversely, if McCoy's discharge
was not discriminatorily motivated, it is immaterial
whether the discharge was arbitrary, unfair or unrea-
sonable. An employer may hire or fire at will for any
reason whatsoever, or for no reason, so long as the
motivation is not violative of the Act. [Footnotes
omitted.]
The Board has reiterated the principle in Charles Edwin
Laffey, d/b/a Consolidated Services, 223 NLRB 845 (1976),
where the Board stated: "It is well established that a
discharge motivated in part by an employee's exercise of
Section 7 rights is a violation of the Act even though
another valid cause may also be present."
In the instant case there is no dispute of the fact that
prior to the termination of Ackerson on March 10, 1976,
the Respondent had knowledge that Ackerson had joined
the Union in early January 1976 and that Ackerson had
filed an unfair labor practice charge against the Respon-
dent in February 1976. Based on Ackerson's credited
testimony, the conversations between Ackerson and Larry
Blake which took place on February 11, 18, and 19 or 20,
1976, reveal a hostility to the exercise of her rights under
the Act and a desire on the part of Blake to get her to leave
her employment at the restaurant. The conversations
between Ackerson and Escalante on January 10 and 11,
1976, also are indicative of a similar hostility on the part of
Ms. Blake. While it has been noted that Ackerson and
Escalante were personal friends, nevertheless, Escalante
was a supervisor and agent of the Respondent at that point
in time.
The events which occurred during the evening of March
10, 1976, have been set forth in detail above. Without
repeating those details, it is obvious that Ackerson was
persistent in seeking an increase in her working hours at
the restaurant, that the voices of Ackerson and Larry Blake
were raised in volume at times, and that customers were
present while these conversations were taking place.
However, in view of: (1) the timing of the termination of
Ackerson after she had joined the Union and after she had
filed an unfair labor practice charge against the Respon-
dent; (2) the Respondent's knowledge of the foregoing
activities which are protected by the Act; and (3) the
animus of the Respondent towards Ackerson in the
exercise of her rights under the Act, I conclude that counsel
for the General Counsel has established by a preponder-
ance of the evidence that the termination of Ackerson by
Larry Blake on March 10, 1976, was motivated in part by
her union membership and activities and in part by her
having filed an unfair labor practice charge under the Act.
Accordingly, I conclude that the Respondent thereby
violated Section 8(a)(1), (3), and (4) of the Act in
terminating Ackerson and thereafter failing to reinstate
her.
In view of the circumstances of this case, it is well to note
the Board's rationale and holding in Trustees of Boston
University, 224 NLRB 1385 (1976), where the Board said:
As noted by the Administrative Law Judge, the return
of a discriminatee to the employ of a less than receptive
employer frequently leads to a difficult and awkward
situation. In this case, the apparent personality conflict
between Schiffer and Stephanou will not make any
easier the restoration of the status quo prior to the
unfair labor practices. Nonetheless, the remedial nature
of the Act and its policy favoring reinstatement to a
discriminatee's former position outweigh the difficulties
attendant to Schiffer's returning to her former job.
Where, as here, the employer's provocations as well as
its illegal discrimination contributed substantially to
creating a suspicious and tense atmosphere, the
employer cannot allege that its own illegal actions
warrant restoring a discriminatee to ajob other than his
or her former one. The Board has long held that an
employer can restore a discriminatee to a "substantially
equivalent job" only when the discriminatee's former
job is no longer available. It is a significant consider-
ation that other employees be made aware, through the
discriminatee's return to his or her former job, that
their rights to engage in concerted activity are protected
by the Act. Finally, despite the difficulties, we believe it
is incumbent upon the employer, in order to comply
with our Order, and the discriminatee, in order to fulfill
the legitimate job requirements of the position to which
39
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he or she is to be reinstated, to attempt to work together
harmoniously and forget past animosity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several states, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Upon the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Larry Blake's Restaurant and Rathskeller d/b/a
Blake's Restaurant is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 28, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees engaged in or in connection with the
preparation, handling, and serving of food and/or
beverages, including without limitation those employed
in the classifications set forth in Appendices A, B, and
C of the collective-bargaining agreement, and office
workers employed by the Respondent at its Berkeley,
California, restaurant, excluding guards and supervi-
sors as defined in the Act.
4. At all times material herein, the Union has been, and
is, the exclusive representative of all employees in the
above-described appropriate unit for the purposes of
collective bargaining.
5. By refusing since on or about January 13, 1976, to
recognize and bargain with the Union as the exclusive
representative of the employees in the unit described
above, and by repudiating the collective-bargaining agree-
ment with the Union, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (5) of the Act.
6. By discharging Dinah Ackerson on or about March
10, 1976, and thereafter failing to reinstate her, because of
her union membership and activities, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
7. By discharging Dinah Ackerson on or about March
10, 1976, and thereafter failing to reinstate her, because she
filed an unfair labor practice charge under the Act, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(l) and (4) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(aXl), (3), (4), and
(5) of the Act, I shall recommend that it be ordered to cease
and desist therefrom and that it take certain affirmative
action to effectuate the policies of the Act.
Having found that the Respondent unlawfully dis-
charged Dinah Ackerson and has failed to reinstate her, I
shall recommend that the Respondent make her whole for
any loss of earnings suffered as a result of the discrimina-
tion against her by payment to her of a sum of money
equal to that which she normally would have earned as
wages from the date of the discrimination against her until
the Respondent offers her reinstatement, less her net
earnings during such period. Backpay is to be computed on
a quarterly basis in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950), and with
interest thereon as prescribed by the Board in Isis Plumbing
& Heating Co., 138 NLRB 716(1962).
In view of the nature of the Respondent's unfair labor
practices found herein, I shall recommend that the
Respondent cease and desist from infringing in any other
manner on the rights of its employees guaranteed by
Section 7 of the Act. Brom Machine and Foundry Co., 222
NLRB 74 (1976); SKRL Die Casting, Inc., 222 NLRB 85
(1976); N.LRB. v. Entwistle Mfg. Co., 120 F.2d 532, 536
(C.A. 4, 1941).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to the provisions of Section 10(c) of the
Act, I hereby issue the recommended Order set forth
below. In the event no exceptions are filed as provided by
Section 102.46 of the Rules and Regulations of the
National Labor Relations Board, the findings, conclusions,
and recommended Order herein shall, as provided in
Section 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.
ORDER
Larry Blake's Restaurant and Rathskeller d/b/a Larry
Blake's Restaurant, Berkeley, California, its officers,
agents, successors, and assigns shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with the Union as
the exclusive representative of the employees in the
appropriate unit described below, and repudiating the
collective-bargaining agreement with the Union. The
appropriate bargaining unit is:
All employees engaged in or in connection with the
preparation, handling, and serving of food and/or
beverages, including without limitation those employed
in the classifications set forth in Appendices A, B, and
C of the collective-bargaining agreement, and office
workers employed by the Respondent at its Berkeley,
California, restaurant, excluding guards and supervi-
sors as defined in the Act.
40
BLAKE'S RESTAURANT
(b) Discharging an employee and failing to reinstate that
employee because of the employee's union membership or
activities on behalf of Local 28, Hotel and Restaurant
Employees and Bartenders International Union, AFL-
CIO, or any other labor organization.
(c) Discharging an employee and failing to reinstate that
employee because of the employee's having filed an unfair
labor practice charge under the Act.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Recognize and bargain,upon request, with the Union
as the exclusive representative of the employees in the
appropriate unit described above, and honor the collective-
bargaining agreement with the Union.
(b) Offer Dinah Ackerson immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges.
(c) Make whole Dinah Ackerson for any loss of earnings
suffered by her as a result of the discrimination against her
in the manner set forth in the section of this Decision
entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of money due under the terms of this
Order.
(e) Post at its Berkeley, California, restaurant copies of
the attached notice marked "Appendix." In the event that
the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board"
shall read "Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
Copies of the notice, on forms to be provided by the
Regional Director for Region 20, after being duly signed by
the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
APPENDIX
NOTIcE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present evidence, it has been found that we violated the
National Labor Relations Act and we have been ordered to
post this notice.
WE WILL recognize and bargain, upon request, with
Local 28, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, as the
exclusive representative of the employees in the unit
described below and honor the collective-bargaining
agreement with the Union. The appropriate bargaining
unit is:
All employees engaged in or in connection
with the preparation, handling, and serving of
food and/or beverages, including without limita-
tion those employed in the classifications set forth
in Appendices A, B, and C of the collective-
bargaining agreement, and office workers em-
ployed by the Respondent at its Berkeley,
California, restaurant, excluding guards and
supervisors as defined in the Act.
WE WILL NOT discharge an employee and fail to
reinstate that employee because of the employee's
union membership or activities in behalf of Local 28,
Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO, or any other labor
organization.
WE WILL NOT discharge an employee and fail to
reinstate that employee because of the employee's
having filed an unfair labor practice charge under the
Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL offer to Dinah Ackerson immediate and
full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights and
privileges.
WE WILL pay to Dinah Ackerson the amount of her
loss of earnings resulting from our having discharged
her, and WE WILL pay her 6 percent interest per annum
on such loss of earnings.
LARRY BLAKE'S
RESTAURANT AND
RATHSKELLER D/B/A
BLAKE'S RESTAURANT
41