Cafe La Salle

National Labor Relations Board - Board Decisions

Jun 18, 1986

280 N.L.R.B. 379 (N.L.R.B. 1986)

CAFE LA SALLE
La Salle Investment Co., Ltd., d/b/a Cafe La Salle
and Hotel , Restaurant Employees & Bartenders
Union , Local 49, Hotel and Restaurant Employ-
ees and Bartenders International Union, AFL-
CIO
Ronald Curtis, d/b/a Personal Financial Manage-
ment Services and Hotel, Restaurant Employees
& Bartenders Union, Local 49 , Hotel and Res-
taurant Employees and Bartenders International
Union, AFL-CIO
Old Sacramento Investors , Ltd. and Hotel, Restau-
rant Employees & Bartenders Union , Local 49,
Hotel and Restaurant Employees and Bartend-
ers International Union , AFL-CIO. Cases 20-
CA-19327, 20-RM-2548, 20-CA-19554, and
20-CA-19556
18 June 1986
DECISION, ORDER, AND DIRECTION
By MEMBERS DENNIS, BABSON, AND
STEPHENS
On 25 October 1985 Administrative Law Judge
Roger B. Holmes issued the attached decision. Re-
spondent Cafe La Salle filed exceptions and a sup-
porting brief, the General Counsel filed cross-ex-
ceptions and a supporting brief, and Respondent
Cafe La Salle filed an answering brief to the Gen-
eral Counsel's cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings, and
concusions as modified. I
The judge found that Respondent Cafe La Salle
did not violate Section 8(a)(1) of the Act when its
night manager and maitre d' Michael Cardozo
questioned employees Karl Holzmann, Nedra
i With regard to Case 20-RM-2548, we adopt the judge's recommen-
dation that the election be set aside In finding objectionable conduct by
Respondent Cafe La Salle, the judge relied on two unfair labor practices
committed during the critical period, which began on 2 October 1984-
an 8(a)(l ) grant of benefits and an 8(a)(4) failure to prepare a letter of
recommendation for employee Palmer Contrary to the judge, however,
we do not rely on the latter incident The challenge to Palmer's ballot
was sustained, she was therefore not an eligible voter in the election
There is no evidence that any other employee learned of the Respond-
ent's misconduct before voting in the election Thus, we conclude that
the incident was too mammal to have interfered with the conduct of a
free and fair election. See General Felt Industries, 269 NLRB 474 fn 1
(1984), Metz Metallurgical Corp., 270 NLRB 889 (1984). Although, for
reasons set forth below, we find an additional 8(a)(1) violation, we do not
find it to be objectionable conduct with respect to the election because
the General Counsel has failed to demonstrate that the unlawful interro-
gation occurred during the critical period.
We also adopt pro forma, in the absence of exceptions, the judge's rec-
ommendations that the challenge to the ballot of Kevin Nichols be sus-
tamed and that the challenge to the ballot of Paul Sturges be overruled
379
Hughes, Daniel Szydlowski, and David Watson.
We disagree for the reasons set forth below.
Following a demand for recognition based on
authorization cards, the Union began picketing at
Respondent Cafe La Salle's facility 28 September
1984. Three or four days later, Night Manager and
Maitre d' Michael Cardozo met with Holzmann,
Hughes, Szydlowski, and Watson and asked them
why they wanted to join the Union.2 Cardozo told
the employees he felt they had gone to "extreme"
lengths, they could come to him with their prob-
lems, and asked them what their grievances were.3
The employees suggested specific changes be made
at the restaurant.
The judge, relying on Rossmore House,4 found
the Respondent's conduct did not violate Section
8(a)(1) because the questioning was similar to that
found permissible there5 and because the employ-
ees to whom Cardozo spoke were open and active
union adherents.6 We need not decide whether en-
gaging in picketing is sufficient to make an employ-
ee an open and active union adherent within the
meaning of Rossmore House.7 The record shows
that of the four employees only Szydlowski and
Hughes had engaged in picketing. There is no evi-
dence to support the judge's finding that Holzmann
and Watson were open union adherents. In addi-
tion, unlike the situation in Rossmore House, the
questioning here occurred in the context of other
employer unfair labor practices. Under these cir-
cumstances, we find that Cardozo's questioning
reasonably tended to interfere with, restrain, and
coerce employees in exercising rights guaranteed
by the Act in violation of Section 8(a)(1).
We shall amend the judge's Conclusions of Law
and his recommended Order to reflect our finding
of this additional violation, and shall issue a new
notice to employees.
AMENDED CONCLUSIONS OF LAW
Insert the following as paragraph 3 and renum-
ber the subsequent paragraphs.
2 It is unclear where the encounter took place , but Cardozo stated it
was "not in a formal session in the office "
a The judge recommended dismissing an 8(aXl ) allegation that Re-
spondent Cafe La Salle solicited employee grievances , concluding that it
had a past practice of asking employees to submit grievances and suggest-
ed remedies, and then informally discussing the suggestions. No party
filed exceptions
4 269 NLRB 1176 (1984), affd . sub nom . Hotel & Restaurant Employees
Local 11 Y NLRB, 760 F 2d 1006 (9th Cir 1985).
° See id . at 1176
° See id at 1177-1178
' The record shows that , in addition to picketing, Szydlowski and
Hughes met with the Respondent's managing general partner Ronald
Curtis to discuss their grievances and request union recognition. The
judge did not rely on this evidence in finding that Szydlowski and
Hughes were open and active union adherents The other two employees,
Watson and Holzmann, did not participate in the meeting with Curtis.
280 NLRB No. 43
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"3. Respondent Cafe La Salle has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act by coercively interrogating
employees about their union support and activi-
ties."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, La Salle Investment Co., Ltd., d/b/a
Cafe La Salle, Sacramento , California, its officers,
agents, successors , and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 1(a) and re-
letter the subsequent paragraphs.
"(a) Coercively interrogating employees about
their union support or activities."
2. Substitute the attached notice for that of the
administrative law judge.
DIRECTION
The Respondent, La Salle Investment Co., Ltd.,
d/b/a Cafe La Salle, engaged in objectionable con-
duct which would warrant setting aside the 31 Oc-
tober 1984 election.
IT IS DIRECTED that the Regional Director shall,
within 10 days from the date of this Decision,
Order, and Direction, open and count the ballots of
Paul Sturges and Joe Vona III, and serve on the
parties a revised tally of ballots. If the revised tally
shows that the Union has received a majority of
the valid ballots cast, a certification of representa-
tive shall issue.
If the revised tally shows that the Union has not
received a majority of the valid ballots cast, a
second election by secret ballot shall be held
among the employees in the unit found appropriate.
The Regional Director shall direct and supervise
the election, subject to the Board's Rules and Reg-
ulations . Eligible to vote are those employed
during the payroll period ending immediately
before the date of the Notice of Second Election,
including employees who did not work during that
period because they were ill, on vacation, or tem-
porarily laid off. Also eligible are employees en-
gaged in an economic strike that began less than 12
months before the election date and who retained
their employee status during the eligibility period
and their replacements. Those in the military serv-
ice may vote if they appear in person at the polls.
Ineligible to vote are employees who have quit or
been discharged for cause since the payroll period,
striking employees who have been discharged for
cause since the strike began and who have not been
rehired or reinstated before the election date, and
employees engaged in an economic strike that
began more than 12 months before the election
date and who have been permanently replaced.
Those eligible shall vote whether they desire to be
represented for collective bargaining by Hotel,
Restaurant Employees & Bartenders Union, Local
49, Hotel and Restaurant Employees and Bartend-
ers International Union, AFL-CIO.
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively question you about
your union support or activities.
WE WILL NOT grant you benefits in order to dis-
suade you from seeking representation by Hotel,
Restaurant Employees & Bartenders Union, Local
49, Hotel and Restaurant Employees and Bartend-
ers International Union, AFL-CIO or any other
labor organization.
WE WILL NOT refuse to write a letter of recom-
mendation for any of you because an unfair labor
practice charge involving you has been filed
against us.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
LA SALLE INVESTMENT CO., LTD.,
D/B/A CAFE LA SALLE
Lucile L. Rosen and Marcie Berman, Esqs., for the Gener-
al Counsel.
Archie G. Parker (Roland & Parker), of Sacramento, Cali-
fornia, for the Respondent.
John H. Cohenour (Davis, Cowell & Bowe), of Sacramen-
to, California, for the Charging Party.
Joseph A. McLaughlin, International representative, for
the Charging Party at the hearing.
CAFE LA SALLE 381
DECISION
STATEMENT OF THE CASE
ROGER B . HOLMES , Administrative Law Judge. The
original unfair labor practice charge in Case 20-CA-
19327 was filed on 26 October 1984 by Hotel , Restaurant
Employees & Bartenders Union, Local 49, Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO (the Union). The first amended unfair
labor practice charge in Case 20-CA-19327 was filed on
19 December 1984 by the Union.
On 28 December 1984 the General Counsel issued a
complaint and notice of hearing in Case 20-CA-19327
against La Salle Investment Co., Ltd., d/b/a Cafe La
Salle (Respondent Cafe La Salle). The General Counsel
alleged that Respondent Cafe La Salle had engaged in
unfair labor practices within the meaning of Section
8(a)(1), (3), and (4) of the Act. Respondent Cafe La Salle
filed an answer to the General Counsel's complaint and
denies that it has committed the alleged unfair labor
practices. Respondent Cafe La Salle affirmatively alleges
that the underlying unfair labor practice charges are in-
sufficient to support the factual allegations of the Gener-
al Counsel's complaint.
The unfair labor practice charge in Case 20-CA-19554
was filed on 25 March 1985 by the Union. The unfair
labor practice charge in Case 20-CA-19556 also was
filed on 25 March 1985 by the Union.
On 17 April 1985 the General Counsel issued an order
consolidating cases, amended consolidated complaint and
notice of hearing in Cases 20-CA-19327, 20-CA-19556,
and 20-CA-19554 against Respondent Cafe La Salle, Old
Sacramento Investors, Ltd., and Ronald Curtis, d/b/a
Personal Financial Management Services . The latter two
Respondents usually will be referred to as Respondent
Old Sacremento and Respondent PFMS, respectively.
The General Counsel alleges that the three Respondents
were joint employers, and that they had engaged in
unfair labor practices within the meaning of Section
8(a)(1), (3), and (4) of the Act. The three Respondents
filed an answer to the General Counsel's amended con-
solidated complaint and deny that they have engaged in
the alleged unfair labor practices. The Respondents af-
firmatively allege that the underlying charges in each
case were insufficient to support the factual allegations
of the General Counsel's amended consolidated com-
plaint.
I shall consider the affirmative defense of the three
Respondents at the outset of this decision. If that defense
has merit, then the General Counsel's amended consoli-
dated complaint should be dismissed on procedural
grounds without reaching the merits of the allegations.
The Board held in Texas Industries, 139 NLRB 365, 366-
367 (1962):
It is well established that a charge is not a plead-
ing, but merely serves to initiate a Board investiga-
tion to determine whether a complaint shall be
issued . Subject only to the requirement that there
must be some relationship between the allegations in
the complaint and the language of the charge, it is
the function of the complaint, and not the charge,
to serve notice upon a respondent of the particular
conduct alleged to be violative of the Act. Where,
as here, the charge alleges , in general language, that
Section 8(a)(1), as well as 8(a)(3), have been violat-
ed, without particularizing the conduct alleged to
be violative of Section 8(a)(1), the charge is suffi-
cient to support the specific allegations in the com-
plaint of Section 8(a)(1) conduct during the 6-month
period preceding the service of the original charge,
and subsequent thereto. We therefore find that the
charge was adequate to support the entire com-
plaint. 2
2 NL R B V. Raymond Pearson, Inc., 243 F 2d 456 (C A 5),
Triboro Carting Corporation, 117 NLRB 775
The amended unfair labor practice charge in Case 20-
CA-19327 alleges that Respondent Cafe La Salle violat-
ed Section 8(a)(1), (3), and (4) of the Act. It specifically
alleges the discriminatory termination of Robert Payne
Baker and the refusal to issue a letter of recommendation
to Donna Palmer because she had filed unfair labor prac-
tice charges with NLRB. It generally alleges without
specification that Respondent Cafe La Salle has engaged
in conduct that interferes with, restrains, and coerces,
employees in the exercise of the rights guaranteed them
by Section 7 of the Act. The unfair labor practice
charges in Cases 20-CA-19554 and 20-CA-19556 specifi-
cally alleges the discriminatory termination of Baker by
Respondent PFMS and Respondent Old Sacramento, re-
spectively. All the unfair labor practice charges filed by
the Union contained the printed general allegation: "By
the above and other acts, the above-named employer has
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the
Act."
I conclude that there is a relationship between the alle-
gations in the unfair labor practice charges and the alle-
gations in the General Counsel's amended consolidated
complaint, and that the charges are sufficient to support
the specific allegations contained in the General Coun-
sel's amended consolidated complaint. Texas Industries,
above. Accordingly, I find that the affirmative defense of
the Respondents does not have merit. For the same rea-
sons, I conclude that the Respondents' motion to dismiss
paragraph 10(c) of the General Counsel's amended con-
solidated complaint on the basis that no unfair labor
practice charge had been filed with regard to that allega-
tion lacks merit.
The hearing in this proceeding was held on 2 and 3
May 1985 at Sacramento, California. The time for filling
posthearing briefs was extended to 14 June 1985. The
General Counsel and the attorney for the Respondents
filed briefs.
The General Counsel also filed a posthearing motion
to correct the transcript of hearing. The Respondents did
not oppose that motion. Accordingly, the General Coun-
sel's motion is granted.
On 20 June 1985 the General Counsel filed a motion to
strike a portion of the Respondents' brief and a motion
to augment the record. The latter motion, in the alterna-
tive, requested that the hearing be reopened for the sub-
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mission of additional testimony and documentary evi-
dence . I issued on the same date an Order to Show
Cause why the General Counsel 's motions should not be
granted . On 24 June 1985 the Respondents filed a re-
sponse to motions to augment record and to strike a por-
tion of the Respondents ' brief. I issued on 19 July 1985
an order which denied both of the General Counsel's
motions . Section 102 .26 of the Board 's Rules and Regula-
tions provides that such motions and rulings become a
part of the record in this proceeding . Therefore, it is not
necessary to reiterate those matters here.
The General Counsel urged for the first time in her
posthearing brief that 11 statements be found to be viola-
tions of Section 8(a)(1) of the Act even though the Gen-
eral Counsel had not alleged those matters in the Gener-
al Counsel's amended consolidated complaint. Those
matters are described at pages 22 through 28 of the Gen-
eral Counsel's posthearing brief. The General Counsel
urged that the statements were closely related to the alle-
gations which were contained in the amended consolidat-
ed complaint, and that those matters had been fully liti-
gated at the hearing. In addition , the General Counsel
sought to change the allegation in paragraph 11(c) of the
amended consolidated complaint by substituting "prom-
ised benefits" for "granted benefits" in that allegation.
This is reflected at page 25 , footnote 28, of the General
Counsel's posthearing brief.
The Board has held that the granting of the General
Counsel's motion to amend her complaint at the hearing,
but after the close of her case-in-chief , did not deny a re-
spondent "the barest minimum of due process ." Howev-
er, the Board said that was not treating the respondent in
that case "in a 'just' manner as our regulations require."
Seward International, 270 NLRB 1034 (1984). The Board
further held in that case (at 1034):
Finally ,4 permitting the General Counsel to intro-
duce a new allegation after the close of her case,
near the end of the hearing, does not serve the in-
terests of judicial economy or orderly adjudication.
4 In considering the just nature of amendments at trial , we also
look to whether the General Counsel has given opposing parties
any informal pretrial notice concerning the pendency of potential
amendments . Such notice may vitiate the due process concerns
raised by unexpected trial amendments.
The General Counsel had the opportunity in this pro-
ceeding to amend the complaint prior to the hearing, as
was done when the amended consolidated complaint was
issued . The General Counsel also had the opportunity in
this proceeding to add or to delete allegations after the
hearing had opened, as was done with regard to para-
graph 10(c) and paragraphs 13(a) and (b). Section 102.15
of the Board 's Rules and Regulations requires, in part,
that the General Counsel 's complaint shall contain:
a clear and concise description of the acts
which are claimed to constitute unfair labor prac-
tices, including , where known, the approximate
dates and places of such acts and the names of re-
spondent's agents or other representatives by whom
committed.
The Respondents did not receive such notice on these
matters , as required by the Board's Rules and Regula-
tions quoted above, until after all the evidence had been
taken, the hearing had closed, and posthearing briefs had
been filed. Thus, the General Counsel's request to find 11
additional violations of Section 8(a)(1) of the Act and to
change the allegation in paragraph 11(c) of the amended
consolidated complaint was raised even later than the
General Counsel 's amendment in Seward International,
above, which was made at the hearing in that case, but
after the close of the General Counsel' s case-in-chief.
In these circumstances , I find that the Respondents
were not given notice in a timely manner regarding these
additional matters, that the additional matters were not
fully litigated in the circumstances noted above, and that
changing the allegations of paragraph 11(c) would be a
substantive change which also is untimely at this posth-
earing stage of the proceeding. Accordingly, I shall not
rule on whether these additional matters constitute unfair
labor practices in violation of Section 8(a)(1) of the Act,
and I will consider the evidence presented regarding
paragraph 11(c) as that matter was alleged in the Gener-
al Counsel's amended consolidated complaint.
On 2 October 1984 Respondent Cafe La Salle filed the
petition in Case 20-RM-2548. On 19 October 1984 the
Acting Regional Director for Region 20 of the National
Labor Relations Board approved a Stipulation for Certi-
fication Upon Consent Election which Respondent Cafe
La Salle and the Union had signed. The payroll period
for eligibility was the period ending on 7 October 1984.
Board agents conducted the election on 31 October 1984
between 3 and 4 p.m. The appropriate collective- bargain-
ing unit description was:
All regular full-time and part-time employees of the
Employer, including dishwashers, waiters, busper-
sons, bartenders, cocktail waitresses, prep cooks,
cooks, chefs, host and hostesses; excluding office
clerical employees, casual employees, guards and
supervisors as defined in the Act.
There were 13 eligible voters who cast ballots for the
Union, and 13 eligible voters cast ballots against the
Union. There were four challenged ballots which could
affect the election results . The Union timely filed objec-
tions to the election.
On 29 January 1985 the Acting Regional Director for
Region 20 of the National Labor Relations Board issued
a Report on Objections and Challenged Ballots, Order
Consolidating Cases and Notice of Hearing. The Acting
Regional Director recommended to the Board that a
hearing be held regarding Objections 1 and 2 filed by the
Union and regarding the challenges to the ballots of
Kevin Nichols and Paul Sturges. He further recommend-
ed to the Board that the challenge to the ballot of Donna
Palmer be sustained . The Union withdrew its challenge
to the ballot of Joe Vona III. Therefore, the Acting Re-
gional Director recommended to the Board that Vona's
ballot be opened and counted after the final disposition
of the eligibility status of Nichols and Sturges. The
Acting Regional Director consolidated the representation
CAFE LA SALLE
case proceeding with the hearing which was scheduled
to be held in Case 20-CA-19327.
No party filed exceptions to the Acting Regional Di-
rector 's report . Accordingly, the Board in Washington,
D.C., adopted the Acting Regional Director's recom-
mendation in the Board 's Order dated 19 February 1985.
FINDINGS OF FACT AND CONCLUSIONS
1. JURISDICTION
Respondent Cafe La Salle is a limited partnership
which operates a restaurant in Sacramento, Claifornia.
During the 12 months preceding the issuance of the Gen-
eral Counsel's amended consolidated complaint, Re-
spondent Cafe La Salle had gross revenues in excess of
$500,000, and it purchased and received products , goods,
and materials valued in excess of $5000 from outside the
State of California . It was admitted at the hearing that
Respondent Cafe La Salle has been at all times material
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
Respondent Old Sacramento is a limited partnership
which owns and operates a commercial building located
at 1028 Second Street in Sacramento , California. During
the 12 months preceding the issuance of the General
Counsel 's amended consolidated complaint , Respondent
Old Sacramento had gross revenues in excess of $100,000
of which in excess of $25,000 was derived from Re-
spondent Cafe La Salle. I find that Respondent Old Sac-
ramento has been at all times material an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. Mistletoe Operating Co., 122
NLRB 1534 (1959).
Respondent PFMS has been at all times material a sole
proprietorship which provides investment counseling
services and has an office and place of business in Sacra-
mento, California . Those facts were admitted in the
pleadings . The General Counsel did not allege that Re-
spondent PFMS was an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION
It was admitted at the hearing that the Charging Party
has been at all times material a labor organization within
the meaning of Section 2(5) of the Act.
III. THE WITNESSES AND CREDIBILITY RESOLUTIONS
Eleven persons were called to testify as witnesses at
the hearing in this proceeding . I will identify them in al-
phabetical order by their last names. Robert Baker is an
employee of Respondent Cafe La Salle , and he also is an
alleged discriminatee in this proceeding. Michael James
Cardozo is the maitre d' and night manager of Respond-
ent Cafe La Salle. Joey Dane Cline is a former employee
of Respondent Cafe La Salle. Ronald Curtis is the man-
aging general partner of Respondent Cafe La Salle and
Respondent Old Sacramento . He also is the sole proprie-
tor of Respondent PFMS. Karl Holzmann is a waiter at
Respondent Cafe La Salle. Nedra Hughes is a waitress at
Respondent Cafe La Salle. JoAnne Leppien is the con-
383
troller of Respondent Cafe La Salle, the building manag-
er for Respondent Old Sacramento , and the bookeeper
and office manager of Respondent PFMS . Joseph A.
McLaughlin is a representative of the Hotel and Restau-
rant Employees and Bartenders International Union,
AFL-CIO . Donna B . Palmer is an alleged discriminatee
in this proceeding . Paul Edward Andrew Sturges is the
manager of Respondent Cafe La Salle . Daniel Szyd-
lowski is a waiter at Respondent Cafe La Salle.
I have considered the demeanor of the witnesses as
they related their testimony on the stand in making the
findings of fact in this decision . I also have given consid-
eration to the occupations of the witnesses, the positions
which they have held , and their identification with one
of the parties in this proceeding . I also have considered
the probability of the testimony of each witness in light
of other testimony , undisputed facts , and documentary
evidence . In making the findings of fact , I have been
guided by the holding that it is common that a trier of
fact will believe some of the testimony of a witness, but
not necessarily believe all of it. NLRB v. Universal
Camera Corp ., 179 F.2d 749 (2d Cir . 1950).
I have given consideration to the arguments made by
the General Counsel and the arguments made by the Re-
spondent with regard to the testimony given by Baker.
For example , at footnote 8 on pages 12 and 13 of the
General Counsel's posthearing brief, the General Counsel
urged : "Baker , in his testimony , had a difficult time sort-
ing out which statements were made at each of the vari-
ous conversations he had with Leppien ." Later in the
same footnote , the Genaral Counsel further urged:
In spite of Baker's confusion , he did not deviate
from his statement that Leppien told him his Union
involvement had fueled his discharge . While Baker
did easily become confused and exhibited somewhat
limited comprehension , nothing about his testimony
suggested that he was not telling the truth to the
best of his ability.
At page 27 of the Respondents' posthearing brief, the
attorney for the Respondents urged:
As to Baker's own testimony at the hearing, there
can be very little credit to it. The plethora of incon-
sistent statements and admissions on cross-examina-
tion showed that he had tried to memorize his testi-
mony on direct examination but he wilted when he
did not get questions for which he had practiced
the answers.
After observing Baker relate his versions of the events
on the witness stand, I find on the basis of his demeanor
while testifying that his versions should not be credited.
I found his preception of the events, his memory of the
events, and his ability to relate those past events on the
stand were such that I should not accept his accounts as
being credible , accurate , and reliable . Transcript 195-198
illustrate the confusion regarding the events he was testi-
fying about at that point and a lack of an accurate recol-
lection. He did not testify convincingly about other
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
events. I find that I cannot rely on his accounts of the
events in making the findings of fact in this decision.
In evaluating the credibility and reliability of the testi-
mony given by Leppien, I have given consideration to
the fact that she acknowledged that there was an error in
her prehearing affidavit. In her earlier statement, Lep-
pien had stated that Baker had not worked after the day
he had reported to her the loss of the building keys. At
the hearing, Leppien corrected her version of that event,
and she acknowledged that she had made an error in her
earlier affidavit. I find that the foregoing does not war-
rant disbelieving Leppien's testimony in this proceeding.
Leppien appeared to be a knowledgeable person, and she
testified in a convincing manner. Therefore, I have based
many of the findings of fact on credited portions of her
account.
McLaughlin's testimony regarding his conversations
with Baker and with Attorney Parker on 2 October 1984
were not convincing. At first, McLaughlin said that
Baker said that Leppien said that Baker was terminated
because of his union activity and his having access to
records that could be used for the Union. However,
McLaughlin acknowledged that he could not quote the
words which Baker had told him were used by Leppien.
He also acknowledged that it was his characterization
that Leppien had told Baker he was terminated because
of his union activity, rather than the words Baker had at-
tributed to Leppien.
McLaughlin related on direct examination two conver-
sations with Parker regarding Baker's termination, which
conversations had taken place outside the restaurant on 2
October 1984 while McLaughlin was picketing. Howev-
er, McLaughlin gave an entirely different version on
cross-examination, which directly contradicted his earlier
account. An attempt was made on redirect examination
to rehabilitate his testimony, in part, at least concerning
his version of his second conversation with Parker that
day. I found that testimony to be unpersuasive, and I
have not credited either version of his conversation with
Parker.
With regard to the allegations set forth in paragraph
12(b)(1) and (2) of the General Counsel' s amended con-
solidated complaint, I have set forth the findings of fact
and conclusions in section VII of the decision. Cline,
Curtis, Hughes, and Szydlowski gave testimony regard-
ing that event . Cline's account was longer and more de-
tailed than the others, but Curtis and Szydlowski also re-
membered specific things that were said during that con-
versation. Hughes' testimony at the hearing was very
brief and only covered five pages of the trascript. Her
account did not cover a substantial number of things
which the other participants were able to remember and
to relate on the witness stand. Therefore, I have not
relied on her brief account in making the findings of fact
in section VII of the decision. Instead, I have relied on
the credited portions of the testimony on Cline, Curtis,
and Szydlowski.
I find that Sturges knew more about what he actually
did at work and what his actual authority was during the
relevant time period than did others who testified at the
hearing . I find his testimony regarding his own duties
and authority to be more accurate and more reliable than
the testimony of others, such as Cline, Palmer, and Szyd-
lowski.
IV. BACKGROUND
As noted in the previous section, Curtis is the manag-
ing general partner of Respondent Cafe La Salle and Re-
spondent Old Sacramento. He also is the sole proprietor
of Respondent PFMS. Curtis has organized or managed
approximately 16 different entities.
Originally, there were three general partners in Re-
spondent Cafe La Salle. One of those general partners
had died sometime prior to September 1984. Another
general partner had moved his office from 1028 Second
Street in Sacramento to San Francisco in June or July
1984. Thus, during September and October 1984, Curtis
was the only general partner with offices at the location
of Respondent Cafe La Salle. However, Curtis was not
involved in the day-to-day operations of the restaurant,
and Curtis did not exercise any direct-line supervision
over the employees of Respondent Cafe La Salle. In-
stead, Curtis received accounting reports from Leppien
and other reports from the general manager of the res-
taurant . Curtis had hired Axel Hochkoeppler as the gen-
eral manager of the restaurant. Hochkoeppler served in
that capacity until the middle of October 1984. At that
time Curtis selected Florence Inouye as the temporary
general manager of the restaurant to replace Hoch-
koeppler. Curtis generally met with the general manager
of the restaurant once a week. Curtis estimated that the
general manager made 95 percent of the decisions re-
garding the restaurant, and the general manager consult-
ed with Curtis regarding other decisions.
General Counsel's Exhibit 4 is a list of the names of all
the partners and the percentage of the ownership of each
partner in Respondent Cafe La Salle. There are 17 limit-
ed partners in the restaurant. Curtis explained at the
hearing the difference between a general partner as dis-
tinguished from a limited partner. He stated: "The gener-
al partner has operational responsibility as well a liability
for a partnership, while a limited partner is limited in his
operational responsibility as well as liability." General
Counsel's Exhibit 3 is a copy of the partnership agree-
ment pertaining to Respondent Cafe La Salle.
Until about 30 days prior to the hearing in this pro-
ceeding, Respondent Cafe La Salle also owned another
restaurant which was known as Restaurant La Salle.
That restaurant was located at 943 Howe Avenue, Sacra-
mento.
With regard to Respondent Cafe La Salle, Leppien
was responsible for seeing that the bills were paid, that
the accounting person did her job, and that the cashiers
performed their job. During September and October
1984, Leppien was involved with the hiring and firing of
cashiers who worked for Respondent Cafe La Salle.
Leppien had approval of cashiers who were hired by the
head cashier. She described the duties of the cashiers as
being: to see that the waiters filled out the checks prop-
erly, to collect the customers' money, to authorize
charge sales, and to balance the cash on a daily basis.
The procedure used at the restaurant was for the waiter
CAFE LA SALLE
to collect the money from the customers and to take that
money and the check to the cashiers.
Leppien had a private office located on the third floor
of the building located at 1028 Second Street, Sacramen-
to. Leppien reported to Curtis.
Respondent Cafe La Salle has paid rent for its use of
the second floor at 1028 Second Street to Respondent
Old Sacramento.
At the time of the hearing, the employees of Respond-
ent Cafe La Salle performed the maintenance work at
the restaurant. In the past, there had been individuals
who contracted to perform that work.
Respondent Old Sacramento was formed as a limited
partnership to develop a three building complex located
at 1028 Second Street in Sacramento by rehabilitating
the buildings, renting space in the buildings, and manag-
ing the buildings. While 1028 Second Street is usually re-
ferred to as a building, it is actually a three-building
complex comprising the Bank Exchange Building, the
Union Hotel, and the Union Hotel Annex. On the
ground floor are located a number of commercial busi-
nesses. On the second floor is located the restaurant
which is known as Cafe La Salle. On the third floor are
located offices for Curtis, Leppien, Cardozo, the chef of
Respondent Cafe La Salle, the daytime manager of Re-
spondent Cafe La Salle, and various other offices of enti-
ties which Curtis has organized or managed, and an un-
related company.
There are three general partners in Respondent Old
Sacramento, and there are 30 limited partners. General
Counsel's Exhibit 5 contains a list of the names of the
partners in Respondent Old Sacramento and their per-
centage of ownership in that partnership. General Coun-
sel's Exhibit 6 is a copy of the limited partnership agree-
ment relating to Respondent Old Sacramento.
With regard to Respondent Old Sacramento, Leppien
dealt with the tenants in the building, saw to it that the
tenants were billed and that those bills were paid, took
care of the financial matters of Respondent Old Sacra-
mento, saw to it that the building was maintained proper-
ly and repair work done, and contracted for those latter
purposes. Curtis testified:
To start with, we integrated earlier Old Sacramento
Investment Limited as a limited partnership that
owns the building, and it contracts for services for
repair, for property management, for leasing as well
as maintenance . . . . And so the contracts are nor-
mally to maintain, clean and keep up to good repair
this building.
While Respondent Old Sacramento has contracted for
services, Curtis said that Respondent Old Sacramento
has never had any employees since its inception.
With regard to Respondent PFMS, Leppien super-
vised the secretarial staff and took care of financial mat-
ters for that entity. In that position, she also reported to
Curtis Leppien received her paycheck from Respondent
PFMS. She said that Respondent PFMS billed Respond-
ent Cafe La Salle and Respondent Old Sacramento for
the work which Leppien performed for those entities.
A computer is located on the third floor of 1028
Second Street. That computer is operated 90 percent of
385
the time by Charles Armstrong, who is employed by Re-
spondent PFMS. Respondent PFMS has utilized the
computer through an affiliated corporation which is
known as Personal Financial Management, Inc. That is a
separate entity from Respondent PFMS.
Ed Astone also uses the computer on the third floor of
the building. Astone is both self-employed and also is
employed by California Historic Properties, of which
Curtis is a principal. Respondent Cafe La Salle and Re-
spondent Old Sacramento do not use that computer.
Property Management Company is another sole pro-
pietorship of Curtis. It is a separate entity from Respond-
ent PFMS. That entity is headed by Leppien. It was
formed to contract for janitorial work, collect rents, and
make sure that tenants' needs are cared for.
Respondents' Exhibit 4 lists the partnerships which
were organized by Personal Financial Management, Inc.
That corporation is an investment advisory company
registered with the SEC.'
Joey Cline made the initial contact with the Union
with regard to the possibility of organizing the employ-
ees of Respondent Cafe La Salle. That contact took
place in mid-September 1984. About 3 days later, Cline
arranged for Union Representative McLaughlin to meet
with about 10 employees of the restaurant. About a week
after Cline had contacted the Union, McLaughlin be-
lieved that the Union had a majority of the restaurant
employees signed to authorization cards. McLaughlin
prepared a letter which requested recognition of the
Union by Respondent Cafe La Salle, and he prepared a
letter listing the names of the employees. McLaughlin
went to the restaurant to see Curtis, but Curtis was not
there so he spoke with General Manager Axel Hoch-
koeppler and Maitre d' and Night Manager Michael Car-
dozo. Those three persons conversed for about 15 min-
utes in an office on the third floor. McLaughlin request-
ed that Hochkoeppler read the materials which
McLaughlin had brought with him. McLaughlin asked
Hochkoeppler if the employees named on the list were
actually employees of the restaurant. Hochkoeppler had
questions about some of the names on the list. One per-
son's name was misspelled, and one of the waitresses was
leaving the restaurant in a day or two. Hochkoeppler
told McLaughlin that Hochkoeppler would have to
check with Curtis.
McLaughlin returned to the offices of the restaurant
on 28 September 1984. He was accompanied on that visit
by Cline. They spoke with JoAnne Leppien. McLaugh-
lin asked where Curtis was, and Leppien told him that
Curtis was out of town. Leppien said that she knew why
then were there, and that "we are not going to sign any-
thing."
About 5 minutes later, the Union began picketing the
restaurant with about a dozen pickets. Thereafter, the
picketing continued for 4 or 5 days.
Attorney Archie G. Parker, who represented all three
Respondents in this proceeding, contacted McLaughlin
regarding the picketing at the restaurant. Parker and
' The foregoing paragraphs in this section are based on the credited
testimony of Curtis and Leppien as well as documentary evidence.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McLaughlin had several conversations regarding the
picketing. As a result, the Union agreed to limit the
number of pickets to three persons at each of the two
doors to the restaurant, and the Union agreed to try to
tone down the pickets to avoid being noisy. 2
Curtis issued a memo dated 1 October 1984 to employ-
ees of Respondent Cafe La Salle . The memo was stapled
to employees ' timecards . General Counsel 's Exhibit 2 is a
copy of that memo. The memo stated:
Long before there was a demand for Union rep-
resentation, many of you had been asked by me,
personally, to reduce your grievances to writing,
list your suggested remedies and then make an ap-
pointment to discuss them with me. To my knowl-
edge, nobody has ever been denied an appointment,
nor have they been penalized for talking to me.
Now that we are set at this point, I would like to
suggest that the best way to a speedy resolution
would be to have the Union petition for a vote at
the earliest possible date. I have already requested
that the Union petition for a vote but it is up to you
to insist on it. The sooner we can have a vote and
determine what the wishes of the majority at Cafe
La Salle are , the sooner we can move to the next
stage of action. I'm sure that all of you would like
to see business return to normal as soon as possible.
Please feel free to come and talk to me or to send
a spokesperson to talk to me if you would like to
discuss this subject.
The foregoing is based on the credited testimony of
Cline and documentary evidence.
Sometime after the picketing of the restaurant had
started and before the election, Cardozo had a conversa-
tion with employee Robin Suzuki . Suzuki initiated the
conversation with Cardozo that evening. She told Car-
dozo that she found the atmosphere at the restaurant to
be very difficult for her to continue working there, that
her parents had money, that she had almost finished with
school, that she did not need the pain of putting up with
the pressure , that she had mentioned quitting on more
than one occasion, that she had been upset that night,
that she had mentioned before that there had been prob-
lems, that she was not a sympathizer of the Union, and
that she was particularly distressed and had had an alter-
cation of sorts with Cline on the cook line.
Someone else told Cardozo that Cline wanted to see
him in the kitchen. Cardozo went into the kitchen and
asked Cline what the problem was. Cline told Cardozo
that Suzuki "had called him some four-letter word and
he demanded an apology."
Cardozo then left to talk with Suzuki. He returned and
spoke with Cline. Cardozo said that Suzuki did not
apologize to Cline, so Cardozo "tried to apologize for
her." Nothing was resolved, but Cardozo felt that the
matter "pretty much dropped at this point."3
2 The foregoing is based on the credited testimony of McLaughlin
8 The foregoing paragraphs are based on the credited testimony of
Cardozo.
The three Respondents in this proceeding have not
had any contracts with any labor organization.'
V. THE INDEPENDENT 8 (A) (1) ALLEGATIONS
PERTAINING TO JOANNE LEPPIEN
A. Allegations
The General Counsel alleges the following in para-
graph 10 of the amended consolidated complaint:
10. On or about September 27, 1984, Respond-
ents, acting through JoAnne Leppien, at the restau-
rant-
(a) Interrogated employees about their union ac-
tivities.
(b) Informed employees that it would be futile
for them to obtain union representation.
(c) On or about 10/26/84, Respondents granted
benefits in the form of entertainment to employees
in order to dissuade them from seeking union repre-
sentation.
B. Facts
Leppien denied that she asked anyone about their
union activities, and she could not recall ever telling any
employee prior to the election that it would be futile for
them to obtain union representation. As indicated in sec-
tion 3 of this decision , I have not credited Baker's testi-
mony to the contrary.
The management of Respondent Cafe La Salle held a
meeting on Friday, 26 October 1984, for unit employees.
The meeting took place at the restaurant . Leppien gave a
speech at the meeting . Cline tape-recorded what was said
during the meeting . Cline placed the tape recorder in
plane view on the table in front of him. He recorded the
entire meeting , and he later gave the tape cassette to
McLaughlin.5
After Leppien had completed her prepared speech, she
announced to the employees that Respondent Cafe La
Salle had decided to participate in a promotional pro-
gram prepared by Entertainment 85. She told the em-
ployees that the waiters would receive complimentary
coupon booklets. One of the buspersons asked her if the
buspersons would receive the complimentary coupons.
Leppien replied that there probably would not be
enough coupons to give them to the buspersons . Leppien
passed around a sample coupon booklet, but she did not
distribute the coupon booklets to the employees at the
meeting.
Leppien explained at the hearing that Respondent Cafe
La Salle had been a participant previously in promotion-
al coupon programs like Capital Express . According to
Szydlowski, the earlier promotional programs had been
available to customers of the restaurant, but they had not
been available to waiters. According to Cline, the wait-
ers at the restaurant had not been happy with previous
programs such as Capital Express because the average
The foregoing is based on the credited testimony of Curtis
The foregoing is based on the credited testimony of Cline. The tape
recording was not offered into evidence at the hearing in this proceeding.
CAFE LA SALLE
ticket per table was lower when such coupons had been
utilized by customers and, as a result, the waiters' tips
also were lower.
Leppien said at the hearing that one of the features of
the Entertainment 85 program was to provide compli-
mentary copies of the coupon booklets to the waiter staff
and to the managers . She said at the hearing that Enter-
tainment 85 had asked her to provide them with a list of
the names of up to 20 persons who would receive such
complimentary coupon books from Entertainment 85.
Respondents' Exhibit 3 is a copy of the form filled out
by Leppien on 1 November 1984 to request those com-
plimentary coupon books. The coupon books were not
distributed to the employees until after the election.
Szydlowski described the coupon booklets as containing
discount coupons in the catagories of: (1) fine dining; (2)
hotels; (3) fast food establishments; (4) sports events; and
(5) amusement parks.6
C. Conclusions
I conclude that there is no credible testimony to sup-
port the allegations of paragraphs 10(a) and (b) of the
General Counsel's amended consolidated complaint. Ac-
cordingly, I recommend that those allegations be dis-
missed.
I conclude that the evidence supports the allegations
set forth in paragraph 10(c) of the General Counsel's
amended consolidated complaint. I found significant the
timing of the grant of new benefits to waiters and wait-
resses who comprised part of the unit. The new benefits
were announced to the employees on 26 October 1984
just a few days prior to the election on 31 October 1984.
Unlike past promotions which benefited customers and
lessened the tips of waiters, the waiters and the waitress-
es in this instance would receive the discount coupons
and thus benefit directly from them. I recognize the fact
that the coupon booklets were not delivered until after
the election had been held, but, nevertheless, the employ-
ees were informed of their new benefit just a few days
before the election. The Board held in its decision in
Waco, Inc., 273 NLRB 746, 748 (1984):
Union animus is an element in 8(a)(3) cases, but gen-
erally is not an element in 8(a)(1) cases . "It is too
well settled to brook dispute that the test of inter-
ference, restraint, and coercion under Section
8(a)(1) of the Act does not depend on an employer's
motive nor on the successful effect of the coercion.
Rather, the illegality of an employer's conduct is
determined by whether the conduct may reasonably
be said to have a tendency to interfere with the free
exercise of employees rights under the Act." t a Ac-
cordingly, the absence of union animus on the part
of the Respondent, assuming this to be shown by
the record, would be irrelevant to the issue of
6 The foregoing paragraphs are based on portions of the credited testi-
mony of Cline, Leppien, and Szydlowski, as well as R. Exh. 3
The foregoing paragraphs are based on the credited testimony of
Cardozo. I found that Cardozo had a better recollection of his conversa-
tion than did Holzmann and Szydlowski Accordingly, I have based the
findings of fact on Cardozo's account
387
whether the Respondent violated Section 8(a)(1),
and it was error for the judge to rely on this factor.
12 Daniel Construction Co., [264 NLRB 569 (1982)].
After considering the foregoing, I conclude that the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act by granting
benefits to employees to dissuade employees from seek-
ing union representation. Arrow Elastic Corp., 230 NLRB
110 (1977).
VI. THE INDEPENDENT 8(A)(1) ALLEGATIONS
PERTAINING TO MICHAEL CARDOZO
A. Allegations
The General Counsel alleges in paragraph 11 of the
amended consolidated complaint:
11. On or about September 28, 1984, Respond-
ents, acting through Michael Cardozo, at the restau-
rant:
(a) Interrogated employees about their union ac-
tivities and sentiments.
(b) Solicited grievances from employees.
(c) Granted benefits to employees in order to dis-
suade them from seeking union representation.
B. Facts
During the time that the picketing was taking place at
the restaurant, Cardozo spoke with employees Karl
Holzmann, Nedra Hughes, Daniel Szydlowski, and
David Watson. Cardozo estimated that his conversation
will them took place about 3 or 4 days after the picket-
ing had started.
Cardozo acknowledged at the hearing that he had
asked the employees why they wanted to join the Union.
He described his conversation with them as being "in
passing ." He explained that he meant by that terminolo-
gy, "We were not in a formal session in the office."
Cardozo also acknowledged at the hearing that he felt
it was an extreme length for the employees to go to in
joining the Union. Cardozo explained that he felt he had
been close to the staff, that previously he had been a
waiter with a number of the night-shift waiters, and that
he preferred that the waiters approach him.
Cardozo further acknowledged that he told the em-
ployees that they could come to him with their prob-
lems. He acknowledged that he asked them what their
grievances were. Cardozo stated at the hearing that the
employees replied with some of the things that they
would like to see changed.
A couple of weeks later, Cardozo made similar re-
marks to still another employee. He did not recall at the
hearing who the employee was, but he said possibly his
conversation was with the waiter on the night shift.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cardozo said at the hearing that he had been told by
higher management not to ask anybody what their union
sympathies were, and he had been told to be careful.?
C. Conclusions
Under the Board's Rossmore House decision,8 I con-
clude that the evidence does not support the allegations
in paragraph 11(a) of the General Counsel's amended
consolidated complaint . Among other things , the Board
held in Rossmore House at 1178:
Nor do we find any violation regarding the second
incident when the Respondent's owner asked
Harvey why he wanted a union and whether the
Union charged a fee.21
21 Unlike our dissenting colleague , we find Tsay's parting state-
ment to Harvey that he "would talk to the manager about it" did
not alter the noncoercive context of the conversation and was not,
under the circumstances, an implied threat or promise of benefit.
The question asked by the respondent's owner of the
employee in the Rossmore House case is similar to the
one Cardozo asked the employees in this case, that is,
why they wanted to join the Union. Like employee
Harvey in the Rossmore House case, the employees in
this case had openly declared their union support. The
employees had engaged in the Union's picketing of the
restaurant. The Board also held in Rossmore House at
footnote 20 on page 1178:
Some factors which may be considered in
analyzing alleged interrogations are: (1) the
background; (2) the nature of the information
sought; (3) the identity of the questioner; and
(4) the place and method of interrogation. See
Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964).
These and other relevant factors are not to be
mechanically applied in each case. Rather,
they represent some areas of inquiry that may
be considered in applying the Blue Flash test
of whether under all the circumstances the in-
terrogation reasonably tends to restrain,
coerce, or interfere with rights guaranteed by
the Act.
Considering the factors mentioned above in the Ross-
more House decision and the similarity of the questioning
in the second incident of the Rosmore House decision de-
scribed above, I conclude that Cardozo's questioning of
the employees under the circumstances described in the
findings of fact did not restrain, coerce, or interfere with
their rights guaranteed in the Act. Accordingly, I recom-
mend that the allegations in paragraph 11(a) of the Gen-
eral Counsel's amended consolidated complaint be dis-
missed.
' The foregoing paragraphs are based on the credited testimony of
Cardozo. I found that Cardozo had a better recollection of his conversa-
tion than did Holzmann and Szydlowski Accordingly, I have based the
findings of fact on Cardozo's account
8 269 NLRB 1176 (1984)
Applying the Board's holding in Ace Hardware Corp.,'
I conclude that the evidence does not support the allega-
tions in paragraph 11(b) of the General Counsel' s amend-
ed consolidated complaint. In the Ace Hardware decision,
the Board held (at 1174):
The Board has long held that the essence of the
violation in solicitation of grievances is not the so-
licitation itself but the inference that the employer
will redress problems.3 Crucial to a conclusion of
implied redress is a finding that the employer inter-
fered with, restrained, and/or coerced employees in
their union activities, which is manifested by such
factors as change in past practice, announcement of
new policy, and timing and context of such
change.4
2 Giovanni's, 259 NLRB 233 (1981); see Uarco, Inc, 216 NLRB
1(1974),
4 Granite City Journal, 262 NLRB 1153 (1982); Burger King, 258
NLRB 1293 (1981), NLRB v. Berger Transfer & Storage , 678 F.2d
679 (7th Cir. 1982).
As shown in General Counsel's Exhibit 2, Respondent
Cafe La Salle had had a past practice of soliciting griev-
ances from its employees, asking them for their suggest-
ed remedies, and discussing those grievances with the
employees. Thus, Cardozo 's statement to the employees
did not change a past practice or announce a new com-
pany policy. Cardozo did not promise to remedy any of
the employees' problems at that time, and I find that the
evidence is insufficient to justify an inference that he
promised to redress their grievances. University of Rich-
mond, 274 NLRB 1204 (1985). See also the Board's deci-
sions in Mariposa Press, 273 NLRB 528 (1984); and Butler
Shoes New York, 263 NLRB 1031 (1982). In view of the
foregoing, I recommend that the allegations in paragraph
11(b) of the General Counsel' s amended consolidated
complaint be dismissed.
I conclude that there is no credible evidence to sup-
port the allegations of paragraph 11(c) of the General
Counsel's amended consolidated complaint and, there-
fore, I recommend that that allegation also be dismissed.
VII. THE INDEPENDENT 8(A)( 1) ALLEGATIONS
PERTAINING TO RONALD CURTIS
A. Allegations
The General Counsel alleges in paragraph 12 of the
amended consolidated complaint:
12. Respondents, acting through Ronald Curtis:
(a) On or about September 29, 1984, at the res-
taurant, informed employees that they had been ter-
minated because of their union activity.
(b) On an unknown date in October, 1984, at the
restaurant:
(1) Informed employees that it would be futile for
them to obtain union representation.
9 271 NLRB 1174 (1984)
CAFE LA SALLE
(2) Threatened to close the Cafe La Salle restau-
rant if employees chose to be represented by the
Union.
B. Facts
Curtis denied telling Baker or any employee at any
time in 1984 that the employee had been terminated be-
cause of union activities. As described in section 3 of this
decision , I have not credited Baker 's testimony to the
contrary.
Cline, Hughes, and Szydlowski met with Curtis in his
office during the period of time that the Union was pick-
eting the restaurant . Cline recalled that it was after he
had received a copy of General Counsel's Exhibit 2,
which is dated 1 October 1984.10
Cline told Union Representative McLaughlin that
Cline and a couple of other employees would like to
meet with Curtis if Curtis was willing to meet with
them. Cline told McLaughlin that he and the other em-
ployees would like to discuss some things with Curtis
without either McLaughlin or Attorney Parker being
present . Cline acknowledged at the hearing that he had
described the meeting as being "a confidential meeting"
in his prehearing affidavit. (See R. Exh. 2, p. 2.) At the
hearing , Cline explained what he had meant by that ter-
minology in his statement. Cline said that it meant that
there would be no legal representatives present at the
meeting . At the hearing, Cline did not recall that it was
stated at the meeting that the meeting was to be "off-the-
record." Cline said there was no agreement made that
the matters discussed at the meeting would not be dis-
cussed with other people in the future.''
Szydlowski stated that there was no promise by the
employees to keep confidential the matters which were
discussed at the meeting. To the contrary, he said that
information from the discussion at the meeting was to be
conveyed by the employees to other employees to deter-
mine whether the picketing of the restaurant should
cease.' 2
Curtis received a message from his secretary, Cheryl
Uber, that some employees desired to meet with him.
Curtis asked her who they were, and she replied that she
only knew that Cline wanted to meet, but there would
be others. Curtis then consulted with Attorney Parker
about the advisability of having such a meeting with the
employees. Attorney Parker contacted McLaughlin to
ask if he approved of an "off-the-record" meeting with
the employees. Parker then told Curtis that McLaughlin
had approved. Curtis told Uber to contact Cline for a
meeting at 3 p.m. that day. 13
Cline estimated that the meeting with Curtis lasted for
1-1/2 to 2 hours. A number of subjects were discussed
during that length of time. The account of each witness
differed in some respects from the accounts of the other
witnesses . As indicated in section 3 of this decision, I
have relied on portions of the accounts of Cline, Curtis,
and Szydlowski, rather than Hughes' brief testimony. As
10 The foregoing is based on the credited testimony of Cline
11 The foregoing is based on the credited testimony of Cline
12 The foregoing is based on the credited testimony of Szydlowski
13 The foregoing is based on the testimony of Curtis
389
indicated above, the General Counsel has made only two
allegations in her amended consolidated complaint re-
garding what was said at this meeting. Therefore, I will
focus on those two allegations.
Curtis told the employees that he could not do any
bargaining with them, that he could not make any prom-
ises, and that he could not say everything he would like
to say because of legal restrictions.14
In summary, the subjects discussed at the meeting in-
cluded: Why the employees had sought to organize a
union at the restaurant; the problems they had experi-
enced with General Manager Hochkoeppler in present-
ing grievances to him in the past; the employees' desire
to have a formal and unbiased grievance procedure at
the restaurant; the food that the restaurant served to its
employees; the limited availability of the Employer's
medical plan based on the number of hours worked by
an employee; the competitive scheduling policy intro-
duced by Hochkoeppler which rewarded waiters and
waitresses with additional working shifts for selling cus-
tomers certain "incentive items"; the terminations of
Robert Baker and Monica Cisneros; the employees'
desire for a seniority system which Curtis told them was
ridiculous and should not be instituted; Cline's belief that
the restaurant would attract additional customers from
the state capitol if the restaurant had a union contract;
Curtis' belief that to the Union the employees were just
another name and number on a monthly dues payment;
Curtis' belief that the restaurant was like a family busi-
ness; and Curtis' belief that employees already had some
things like advance pay which they could not get from
the Union.15
Szydlowski recalled that he said something to the
effect that it was not all bad, and at least their checks
were on time. Szydlowski testified that he was "making
a little joke." Szydlowski said that Curtis replied with
"something like so far," and that Curtis said he had to
pull money out of his personal bank account in order to
meet the payroll.16
Curtis denied the he told the employees that he might
have to close the restaurant because of more incurred
costs. Curtis testified that he told the employees: " I said
that if ever the restaurant were not to be a profitable, at
least a break even operation, that it would likely be
sold." Curtis said that he did not make the foregoing
statement in connection with union representation at the
restaurant.' 7
Curtis told the employees that a petition for an elec-
tion had been prepared, and that his attorney was going
to submit it to get an election. The employees asked
Curtis if he would enter into bargaining at that time.
Curtis said no, not at that time, that he wanted a vote by
the employees, and that if a majority of the employees
voted for the Union, he would enter into negotiations. 18
14 The foregoing is based on the credited testimony of Szydlowski.
15 The foregoing findings are based on a composite of the credited tes-
timony of Cline , Curtis, and Szydlowski.
iB The foregoing is based on the credited testimony of Szydlowski
17 The foregoing is based on the credited testimony of Curtis, rather
than Cline 's assertion that Curtis told them "any more incurred costs
could close the restaurant "
18 The foregoing is based on the credited testimony of Curtis.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cline recalled at the hearing that Curtis "said that we
would negotiate if we won the election."19
Curtis asked the employees to end the picketing. He
said that the picketing was ridiculous, and that it was
only hurting the employees. Curtis said that they should
decide to go to an election as soon as possible . The em-
ployees replied that they would discuss it with the other
employees, and if that was what everybody wanted, they
would go for an election and drop the picketing.20
After the meeting with Curtis, Cline met with other
employees of the restaurant. As a result, they decided to
cease picketing the restaurant at that time.21
C. Conclusions
I conclude that there is no credible evidence to sup-
port the allegations in paragraph 12(a) of the General
Counsel's amended consolidated complaint. Accordingly,
I recommend that the allegation in paragraph 12(a) be
dismissed.
With regard to the meeting of the three employees
with Curtis, I conclude that there was no agreement be-
tween the employees and Curtis to not disclose to others
what was said during the meeting. As Szydlowski point-
ed out, the employees were expected to convey what
was said at the meeting to the other employees to deter-
mine whether the picketing should cease. Curtis and
McLaughlin apparently had an understanding that the
meeting would be "off-the-record," but that was not the
understanding of the employees . In a different context,
the Board found an "off-the-record" conversation be-
tween an employer's labor relations manager and a union
representative to constitute notice to the union of con-
templated changes by the employer even though the
labor relations manager had told the union representative
that their conversation was "off-the-record." Globe-
Union, Inc., 222 NLRB 1081 (1976). I conclude that
there is no basis in this case for refusing to consider the
evidence disclosed at the hearing regarding the meeting
in question.
With regard to the allegation in paragraph 12(b)(1), I
conclude that the credited evidence does not support
that allegation. I conclude that Curtis did not inform em-
ployees, either expressly or impliedly, that it would be
futile for them to obtain union representation. Instead,
Curtis told the employees that he would enter into nego-
tiations with the Union if a majority of the employees
voted for the Union. Thus, Curtis' comments regarding
some of the employees' desires, such as for a seniority
system and a more liberal medical plan for example, have
to be considered in the context of his affirmative state-
ment that he would negotiate with the Union if the
Union won an election. Accordingly, I recommend that
the allegation in paragraph 12(b)(1) be dismissed.
With regard to the allegation in paragraph 12(b)(2), I
conclude that the credited evidence does not support
that allegation. Curtis' statement regarding what would
likely result in the restaurant being sold was linked to the
profitability of the restaurant, rather than the selection of
19 The foregoing is based on the credited testimony of Cline
20 The foregoing is based on the credited testimony of Cline.
21 The foregoing is based on the credited testimony of Cline
a union to represent the employees . In those circum-
stances, I conclude that Curtis did not make a threat to
close the restaurant if the employees chose to be repre-
sented by the Union. Accordingly, I recommend that the
allegation in paragraph 12(b)(2) be dismissed.
VIII . THE 8 (A) (1) AND (3) ALLEGATIONS
PERTAINING TO ROBERT BAKER
A. Allegations
The General Counsel alleges in paragraph 15:
15. (a) On or about September 28, 1984, Re-
spondents discharged Old Sacramento employee
Robert Payne Baker.
(b) Respondents engaged in the conduct de-
scribed above in subparagraph 15(a) because the
employee named therein joined , supported , or assist-
ed the Union , and engaged in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection , and in order to discourage
employees from engaging in such activities or other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
B. Facts
Baker has continued to be an employee of Respondent
Cafe La Salle at all times material . His employment as a
dishwasher , busperson, and later on a cook by Respond-
ent Cafe La Salle is not the subject of the General Coun-
sel's allegation regarding Baker . Instead , the General
Counsel's allegation pertains to the termination of janito-
rial work by Baker. As noted above, the General Coun-
sel alleges that Baker also was an employee of Respond-
ent Old Sacramento, and the General Counsel alleges
that Baker was discharged discriminatorily from his jani-
torial job. The General Counsel also alleges that all three
Respondents were joint employers. The Respondents
urged that Baker was an independent contractor, rather
than an employee, and that Baker was an independent
contractor of an entity not named in the General Coun-
sel's amended consolidated complaint.
Leppien is employed by Respondent PFMS, which has
billed Respondent Cafe La Salle and Respondent Old
Sacramento for the services which she has performed for
those entities. One of her services for Respondent Old
Sacramento was to see to it that the building complex at
1028 Second Street was maintained . In that connection,
she has contracted for the performance of janitorial
work . 22 I find that Leppien was acting as a agent of Re-
spondent Old Sacramento in contracting for the janitorial
work at that building.
Curtis indicated in his testimony that another entity
known as Property Management Company was responsi-
ble for performing the janitorial work, collecting rents,
and seeing to it that the tenants' needs were met at 1028
Second Street. Curtis said he was the sole proprietor of
Property Management Company, which was a separate
entity from his sole proprietorship, Respondent PFMS.
22 The foregoing is based on the credited testimony of Leppien
CAFE LA SALLE
Curtis said that Leppien headed Property Management
Company. 2 a
Leppien did not mention Property Management Com-
pany in her testimony at the hearing. As indicated above,
based on Leppien's testimony, I find that Leppien was
acting as an agent of Respondent Old Sacramento in
contracting for janitorial services to clean and maintain
the 1028 Second Street building complex.
Curtis said it was a commonly accepted practice in the
building industry for owners of buildings to have inde-
pendent contractors perform janitorial services.24
In early 1984, Baker expressed an interest in doing
janitorial work at the building. Leppien told him that she
would talk with him in the event that she needed some-
one for that job. Sometime later in 1984, Leppien told
Baker that Paul Getz was going to quit doing the janito-
rial work. Leppien told Baker that he would have an op-
portunity to be trained in janitorial work by someone
like Getz who really knew the job. Leppien also told
Baker on that occasion that if he worked out, then Baker
could perform the janitorial work.
Leppien told Baker that she hired people to work in-
dependently as contractors to perform janitorial services
in the building; that if he wanted to do that job, he
would be paid a flat rate; that he would be working
under a contract ; that he would be responsible for his
own tax situation; that due to the intense need for sup-
plies, they would take care of those; that Baker would be
responsible to accomplish the cleaning of the building as
described on a list; and that Baker would do the cleaning
on his own time so long as the cleaning was not done
during business hours.
Leppien previously had given to Getz a cleaning list
of the things to be done. It was her understanding that
Getz, in turn, gave that list to Baker. Getz worked with
Baker for a few days to show him what needed to be
done. Thereafter, Baker was left on his own to perform
the janitorial services. Leppien said that Baker's working
hours were left up to him just so long as he did not do
janitorial work during business hours. Leppien also said
that Baker could have hired somebody to perform some
of the janitorial work for him. She said that he could
have contracted with someone if he did not want to per-
form all the work. Leppien gave Baker the telephone
number of a plumber for Baker to contact if there was a
serious plumbing problem.
Baker was not the only person who performed janito-
rial work at the building. Up to three persons were per-
forming that work. Leppien explained that the building
had to be maintained 7 days a week, so one person
would perform maintenance work for 4 or 5 days a
week, and another person would perform maintenance
work 2 or 3 days a week. She explained that two persons
worked on Mondays when there was more cleaning
work than usual to be done.
On one occasion, Leppien asked Baker about his opin-
ion of William Kietle, who sometimes worked perform-
ing janitorial services 1 day a week with Baker. At the
hearing, Leppien explained that Kietle had cancer and
391
had been very ill. She said he had undergone chemother-
apy treatments. Leppien asked Baker on that occasion if
Baker had observed Kietle's work when Baker had
worked with Kietle. She asked if Kietle's health was
good enough for Kietle to continue doing the janitorial
work.
Late in the summer of 1984, Curtis and Leppien began
discussing the job performance of Baker . Curtis told
Leppien of things he found which were not satisfactory.
Leppien told Curtis that she would discuss those things
with Baker . She also told Curtis that Baker would do his
work better and that he would do the things he had for-
gotten to do. Leppien spoke with Baker on many occa-
sions , and she told him that people were not happy with
his performance of the maintenance work. Leppien fur-
ther told Baker that she was going to have to get some-
body else if Baker could not do the job better.
One day Baker asked Leppien for keys to the building.
Baker explained to her that he had lost his building keys
a couple of days before, and that he had been using
someone else's keys. Leppien told Baker that she did not
know what she was going to do about it right then, but
she was not going to issue Baker any more keys to the
building. Leppien told Baker that he would have to
come in during regular business hours when the building
was open. Leppien also told Baker that he could contin-
ue to do the work until she decided what to do about his
having lost the building keys. She told Baker that she
would have to talk with Curtis to see what Curtis
thought she should do about it.
For the next couple of days, Baker performed his jani-
torial work when the building was open. During that
time , he used Leppien 's key to open the janitor 's room.
Leppien spoke with Curtis regarding Baker, and she
informed Curtis that Baker had lost the keys to the build-
ing. Leppien said that the loss of the keys was careless
and "just the last straw." When Baker next came to get
Leppien's key to the janitor's room, Leppien told him
that they could not use his services anymore. Leppien
told Baker that she had been defending Baker's work to
Curtis for awhile, but his loss of the building keys was
indefensible , and that was it. She said that there was no
mention of union activities during their conversation.
Sometime later Baker returned to Leppien's office and
complained to her about how terrible it was that they
had let him go. Leppien told Baker on that occasion that
he had hurt her feelings by seeing her every day, but
never mentioning to her that there were any problems
going on. Leppien acknowledged at the hearing that she
had seen Baker on the picket line. She stated that she
had said hello to him on those occasions.
The locks to the building were not changed after
Baker lost the building keys. Leppien explained at the
hearing that she had told the security force to be at the
building more frequently and to observe things there.
However, she said that nothing had happened, so Lep-
pien felt that nobody who had the keys was going to use
them.
23 The foregoing is based on the credited testimony of Curtis.
24 The foregoing is based on the credited testimony of Curtis
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Conclusions
The Board held in Pierre's Vending Co., 274 NLRB
1219 (1985):
The Board applies the common law right-of-con-
trol test in determining whether individuals are em-
ployees or independent contractors. In Twin City
Freight, 221 NLRB 1219, 1220 (1975), the Board
held:
.. an employer-employee relationship exists
when the employer reserves not only the right to
control the result to be achieved, but also the
means to be used in attaining the result. On the
other hand, where the employer had reserved
only the right to control the ends to be achieved,
an independent contractor relationship
exists. . . . In order to determine the nature of
the relationship, the Board analyzes the facts pre-
sented in the particular case, balances them, and
arrives at a result.
The Board further held in Pierre's Vending at 1220
footnote 7: "The fact that the Respondent did not with-
hold state or Federal taxes, although not determinative,
is nonetheless relevant to a determination of independent
contractor status."
The Board held in Air Transit, 271 NLRB 1108, 1110
(1984):
Section 2(3) excludes independent contractors
from coverage by the National Labor Relations
Act. A determination of independent contractor
status is governed by normal agency principles,' 3
most importantly the "right of control" test the
Board set forth in News Syndicate Co., 164 NLRB
422, 423-424 (1967):
Where the one for whom the services are per-
formed retains the right to control the manner
and means by which the result is to be accom-
plished, the relationship is one of employment;
while, on the other hand, where control is re-
served only as to the result sought, the relation-
ship is that of an independent contractor. The
resolution of this question depends on the facts of
each case, and no one factor is determinative.
13 NLRB v. United Insurance Co., 390 U S 254 (1960).
I conclude that Baker was an independent contractor
of Respondent Old Sacramento in performing the janito-
rial work at the building located at 1028 Second Street. I
find that the credited evidence showed that Respondent
Old Sacramento retained only the right to control the
result of Baker's work , and that Respondent Old Sacra-
mento did not retain the right to control the means used
by Baker in obtaining that result. In this connection, Re-
spondent Old Sacramento provided Baker with a list of
the cleaning work to be done, but it was left up to Baker
how he would perform that work. The only restriction
with regard to his working hours was that the janitorial
work was to be performed outside normal business hours
at the building. Otherwise, the evidence showed that
Baker had the right to perform the janitorial work when-
ever he chose to do so. The evidence further showed
that Baker was paid a flat rate for the janitorial work,
and that Baker could subcontract any or all the janitorial
work if he chose to do so. State and Federal taxes were
not withheld from the money paid to Baker. I conclude
that the fact that Respondent Old Sacramento furnished
the cleaning supplies to Baker for the janitorial work
does not outweigh the foregoing factors which together
establish that Baker was an independent contractor
rather than an employee of Respondent Old Sacramento.
The General Counsel urged an alternative theory in
her posthearing brief under the Board's holding in
Senftner Volkswagen, 273 NLRB 1410 (1984). The Gener-
al Counsel urged that even if Baker were found to be an
independent contractor, the termination of his services as
an independent contractor was so related to his status as
an employee of Respondent Cafe La Salle that there was
a violation of Section 8(a)(l) and (3) of the Act. I con-
clude that the General Counsel's alternative theory of a
violation does not have merit. I conclude that the cred-
ited evidence set forth above in the findings of fact estab-
lished that Baker's loss of the keys to the building was
the factor which resulted in the termination of his janito-
rial services. I conclude from Leppien's credited testimo-
ny that Baker's loss of the building keys was "the last
straw." While there had been some dissatisfaction ex-
pressed earlier with regard to Baker's performance of his
janitorial services, Leppien's testimony made it clear that
it was the loss of the building keys which precipitated
the termination of the verbal contract for Baker's janito-
rial services . In these circumstances , I conclude that a
prima facie case of a violation of Section 8(a)(1) and (3)
of the Act has not been established, and that the Board's
holding in Senftner Volkswagen is not applicable here.
The General Counsel alleges that all three Respond-
ents were joint employers of the employees of Respond-
ent Cafe La Salle and Respondent Old Sacramento. (See
pars. 9(a) and (b) of the General Counsel's amended con-
solidated complaint.) To determine that issue I must con-
sider whether the three Respondents each "possessed suf-
ficient control over the work of the employees to qualify
as a joint employer" with the other Respondents. Boise v.
Greyhound Corp., 376 U.S. 473, 481 (1964).
The United States Court of Appeals for the Third Cir-
cuit has set forth the distinction between the "joint em-
ployer" concept and the "single employer" concept
where the criteria of Radio Union Local 1264 v. Broadcast
Service of Mobile, 380 U.S. 255 (1965), is to be applied.
The Court pointed out that the Radio Union factors to be
considered in a "single employer" concept are: (1) func-
tional intergration of operations; (2) centralized control
of labor relations; (3) common management ; and (4)
common ownership. Those "single employer" concept
criteria are different from the "joint employer" concept
test. The Third Curcuit held in NLRB v. Browning-Ferris
Industries, 691 F.2d 1117, 1122 (3d Cir. 1982):
The "joint employer" and "single employer"
concepts are distinct. Admittedly, there has been a
blurring of these concepts at times by some courts
CAFE LA SALLE
and by the Board. However, as the Supreme Court
itself has recognized, the two concepts approach
the issue of "who is the employer" from two differ-
ent viewpoints. As such, different standards are re-
quired for each-that enunciated in Radio Union v.
Broadcast Service of Mobile, Inc., supra, to apply in
the "single employer" context and that set out in
Borie v. Greyhound Corp., supra, to apply in the
"joint employer" context.
The Third Circuit concluded in the Browning-Ferris
case at 1124:
We hold therefore that in the context of this case,
the Board chose the correct standard-the "joint
employer" standard-to apply to its analysis of the
facts of this case : where two or more employers
exert significant control over the same employees-
where from the evidence it can be shown that they
share or co-determine those matters governing es-
sential terms and condition of employment-they
constitute "joint employers" within the meaning of
the NLRA.
Applying the "joint employer" criteria set forth above,
I conclude that the evidence does not establish that the
three Respondents are joint employers. Instead, I con-
clude that the evidence revealed that Curtis was not in-
volved in the day-to-day operations of Respondent Cafe
La Salle The evidence showed that the general manager
made 95 percent of the decisions with regard to the res-
taurant, and he only consulted Curtis regarding the re-
mainder. In addition, the evidence showed that Leppien
was only involved with the cashiers at the restaurant, as
distinguished from the other employees. Furthermore,
the evidence revealed that Respondent Old Sacramento
did not have any employees at any time. Respondent Old
Sacramento had independent contractors to perform the
janitorial work at the building which it owned, and Lep-
pien worked as a consultant apparently under contract
between Respondent Old Sacramento and Respondent
PFMS which billed Respondent Old Sacramento for the
services she performed. The employees of Respondent
PFMS were bookkeeping and clerical employees, and
the evidence did not show that Curtis exercised control
over the work of those employees. Accordingly, I con-
clude that the evidence does not establish that the three
Respondents have shared or codetermined matters gov-
erning the essential terms and conditions of employment
of the employees in question.
IX. THE 8(A)(1) AND (4) ALLEGATIONS PERTAINING
TO DONNA PALMER
A. Allegations
The General Counsel alleges in paragraph 14 of the
amended consolidated complaint:
14. (a) On or about October 30, 1984, Respond-
ents refused to give Cafe La Salle employee Donna
Palmer a letter of recommendation
(b) Respondents engaged in the conduct de-
scribed above in subparagraph 14(a) because the
393
employee named therein filed charges with the Na-
tional Labor Relations Board.
B. Facts
At the outset of this section, it should be noted that
Respondent Cafe La Salle's layoff or termination of
Donna Palmer on 23 October 1984 was not alleged in
the General Counsel's amended consolidated complaint
to have been for discriminatory reasons . Thus, there was
no issue raised in this proceeding whether her layoff or
termination was an unfair labor practice in violation of
the Act. Instead, the issue regarding Palmer, as framed
by the pleadings, was whether Respondent Cafe La Salle
refused about 30 October 1984 to give her a letter of rec-
ommendation because she had filed charges with the Na-
tional Labor Relations Board.
Palmer was hired by Respondent Cafe La Salle in
February 1984. She had several interviews with Alex
Stiles, who was the day manager at the restaurant at that
time, and Rick Uhlinger, who was the cook. She was
hired as a waitress in the restaurant, but she also re-
ceived training as a hostess, cashier, cocktail waitress,
and busperson. Stiles told Palmer that being trained in
different positions would make her job much more
secure, that there was a great need for a person who was
able to do several jobs, and that it would be much more
advantageous to her to be trained in several different sit-
uations.
The balcony or terrace area at the restaurant was not
open at the time that Palmer was hired. She worked as a
"floater" throughout the restaurant during the early part
of her employment. Palmer worked 5 days a week and
close to 30 hours during the week.
When Respondent Cafe La Salle opened the balcony
toward the end of April 1984, Palmer was assigned to
work there. She was told at the time that she would also
work in other jobs at the restaurant when she was
needed to fill in for someone who was absent. Palmer
was aware that the balcony area of the restaurant would
close sometime in the fall of the year. At the hearing,
Palmer could not recall the specific conversations she
had with Stiles, or the exact words that Stiles used, but
she formed the belief based on her conversation with
him that she would be employed at the restaurant after
the balcony closed in the fall.
Palmer described herself as being an active supporter
of the Union. She participated in the picketing of the res-
taurant during the 5 days that the picketing took place.25
Cardozo acknowledged at the hearing that he had seen
Palmer on the Union's picket line at the restaurant. Car-
dozo said, "She was a little more vocal than some of the
others." Cardozo acknowledged at the hearing that he
had characterized in his prehearing affidavit Palmer's
role on the Union's picket line as being the cheerleader
who was leading the chanting.26
Palmer and Gail Chapman were called into the office
about a week prior to the time they were laid off. Also
2s The foregoing paragraphs are based on the credited testimony of
Palmer
26 The foregoing is based on the credited testimony of Cardozo
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present in the office on that occasion were Hoch-
koeppler, Cardozo, and Sturges. Palmer said that she and
Chapman were informed at that time that they were
going to be retained to work part time on the cocktail
shift and used whenever possible in the restaurant.
Palmer said that they were also told that they would be
rehired in the future.
Palmer and Chapman were laid off from work about a
week later in October 1984 when the balcony area of the
restaurant was closed. Cori Acosta, who also had
worked as a waitress on the balcony, was not laid off
from work. Palmer said at the hearing that Acosta was a
supporter of the Union. Palmer also said that she had
more seniority than either Acosta or Chapman.27 Lep-
pien said that Acosta had worked in the restaurant
dining room as well as the balcony area of the restaurant
during the summer of 1984. Leppien said that Acosta
had more finesse than either Palmer or Chapman.28 Both
Holzmann and Hughes said at the hearing that the res-
taurant's practice in the past had been to lay off the wait-
resses who had worked on the balcony when the balco-
ny closed.29
Cardozo told Palmer and Chapman at the time of their
layoff that he had no problems in writing a letter of rec-
ommendation for both of them. Cardozo told them to
write a draft of a letter of recommendation, and he
would be glad to write such a letter for each one. Car-
dozo also told them that there was no room for Palmer
and Chapman to continue working in the restaurant. He
told them that the reason for their layoff was the season-
al closing of the balcony.30 Cardozo said at the hearing
that Palmer had asked him for a letter of recommenda-
tion at the time of her layoff from work. Cardozo said
that he had agreed to sign a letter of recommendation
for Palmer if she would write up something for him to
review and to sign.31
Palmer said at the hearing she had received only one
warning notice while she was employed at the restau-
rant. That warning notice was for being late to work.
Palmer said that she had no idea of her having any disci-
plinary problems at the restaurant, and she said that she
was told by management that they felt that she had not
developed her skills for work inside the restaurant as
much as management had hoped she would do.32
Palmer subsequently telephoned Cardozo a couple of
times to arrange for a meeting with him to write a letter
of recommendation. Cardozo and Palmer agreed that it
would be easy for them to meet when Palmer came to
the restaurant to vote in the election on 31 October 1984.
Cardozo and Palmer met on that date in the early after-
noon at a table on the balcony off from the bar. Their
meeting took place before Palmer voted. Cardozo and
Palmer began writing a rough draft of a letter of recom-
mendation for Palmer. Cardozo then was called away
from the table. When Cardozo returned, he told Palmer
24 The foregoing is based on the credited testimony of Palmer.
2s The foregoing is based on the credited testimony of Leppien
29 The foregoing is based on the credited testimony of Holzmann and
Hughes
so The foregoing is based on the credited testimony of Palmer
91 The foregoing is based on the credited testimony of Cardozo
12 The foregoing is based on the credited testimony of Palmer
that he had been told that he could not write a letter of
recommendation for her. Palmer did not recall at the
hearing the specific term used by Cardozo for not writ-
ing her a letter of recommendation , but she said : "It was
labor problem, labor grudge, labor claim, something like
that, labor problem." Cardozo told Palmer that he had
spoken with someone in the office upstairs, but he did
not say specifically with whom he had spoken. Cardozo
appeared to be upset in Palmer's opinion. Palmer said
that he told her that when he made a promise or when
he asked a favor, he wanted to carry through on it.
Palmer did not receive a letter of recommendation at
that time.33
The Union had filed the unfair labor practice charge in
Case 20-CA-19327 on 26 October 1984. On 29 October
1984 Region 20 of the National Labor Relations Board
mailed a copy of that charge to Respondent Cafe La
Salle. The Postal Service's return receipt card shows 31
October 1984 as the date of delivery to Respondent Cafe
La Salle. Palmer was one of four persons named in that
unfair labor practice charge as allegedly having been dis-
criminatorily laid off or terminated by Respondent Cafe
La Salle. (See G.C. Exhs. 1(d) and (e).)34
Cardozo acknowledged at the hearing that he had told
Palmer on that occasion that he could not give her a
letter of recommendation because Cardozo had been in-
structed by Leppien not to do so. He also acknowledged
at the hearing that "part of it" was Palmer's involvement
in an NLRB "suit."35
Leppien also acknowledged at the hearing that the
Board's unfair labor practice charge was discussed by
Leppien and Cardozo in connection with Palmer's re-
quest for a letter of recommendation. Leppien stated at
the hearing:
[W]e discussed that fact that Donna had . . . filed
an unfair labor practices charge against us. We did
discuss that, and that the nature of the charge was
that, at that point, that my understanding of the
charge was that we had let her go because of her
Union activity and not because of her performance
not being good enough to transfer her to the dining
room. And, I told Michael that it didn't seem feasi-
ble to recommend someone when we were alleging
that we had let her go because, well in fact we had
let her go because of her poor performance. And,
so, in that regard , we, discussed the unfair labor,
you know, suit.36
Palmer voted later that afternoon in the election by
challenged ballot because her name was not on the eligi-
bility list. The Regional Director subsequently found in
his report that Palmer had been discharged on 21 Octo-
ber 1984, and that the Union had withdrawn the portion
of the unfair labor practice charge in Case 20-CA-19327
relating to Palmer's termination. The Regional Director
concluded that Palmer was not an eligible voter, and he
33 The foregoing is based on the credited testimony of Palmer
34 The foregoing is based on the documentary evidence indicated
28 The foregoing is based on the credited testimony of Cardozo.
3 8 The foregoing is based on the credited testimony of Leppien
CAFE LA SALLE 395
recommended that the challenge to her ballot be sus-
tained. (See G .C. Exh. (k), p. 2.) The Board in Washing-
ton, D .C., adopted the Regional Director 's recommenda-
tions. (See G .C. Exh. 1(n).)31
Palmer subsequently received a letter of recommenda-
tion during the first week in January 1985 . A copy of
that letter dated 3 January 1985 was received as General
Counsel 's Exhibit 7. It stated:
Donna Palmer was employed by Cafe La Salle
from February 3, 1984 until October 23, 1984.
Donna was hired as a Terrace Waitress with the un-
derstanding that she would work as a hostess till the
terrace season began.
Our terrace was officially closed on October 23
whereupon Donna was let go with the understand-
ing that we would certainly consider her for similar
employment in 1985.
The attorneys discussed at the hearing the circum-
stances pertaining to General Counsel's Exhibit 7 at tran-
script pages 229-236. The General Counsel does not seek
as a remedy that the Respondent be required to write an-
other letter of recommendation for Palmer if the 8(a)(1)
and (4) allegations involving Palmer have merit.
C. Conclusions
I conclude that the evidence establishes that the reason
that Cardozo did not give a letter of recommendation to
Palmer on 31 October 1984 was that the Union had filed
an unfair labor practice charge against Respondent Cafe
La Salle that alleges, among other things, that Respond-
ent Cafe La Salle had laid off or terminated Palmer for
discriminatory reasons . Cardozo and Leppien were
candid at the hearing in admitting that the Union's unfair
labor practice charge was discussed in connection with
giving Palmer a letter of recommendation. In addition,
the events noted above in the findings of fact revealed
that until 31 October 1984 Cardozo had agreed to give
Palmer such a letter of recommendation. As noted
above, the unfair labor practice charge was delivered to
Respondent Cafe La Salle on 31 October 1984.
The unfair labor practice charge was filed by the
Union rather than by Palmer. Therefore, Palmer did not
file the charge with the Board as alleged in paragraph
14(b) of the General Counsel's amended consolidated
complaint. The General Counsel did not allege, nor did
the evidence show, that Palmer had given testimony
under the Act as of 31 October 1984. Nevertheless, I
conclude that the refusal of Respondent Cafe La Salle on
31 October 1984 to give Palmer a letter of recommenda-
tion violated Section 8(a)(4) as well as Section 8(a)(1) of
the Act. The reason for that conclusion is the Supreme
Court's opinion in NLRB v. AA Electric Co., 405 U.S.
117 (1972). The Court held in the AA Electric case at
124: "The approach to Section 8(a)(4) generally has been
a liberal one in order fully to effectuate the section's re-
medial purpose." The Court also held at 122:
37 The foregoing is based on the documentary evidence indicated
The Act's reference in § 8(a)(4) to an employee
who "has filed charges or given testimony" could
be read strictly and confined in its reach to formal
charges and formal testimony . It can also be read
more broadly. On textual analysis alone , the pres-
ence of the preceding words "to discharge or other-
wise discriminate" reveals , we think, particularly by
the word "otherwise ," an intent on the part of Con-
gress to afford broad rather than narrow protection
to the employee . This would be consistent with §
8(a)(4)'s purpose and objective hereinabove de-
scribed.
The Court further held at 123 and 124 in the AA Elec-
tric case:
This interpretation , in our view , also squares with
the practicalities of appropriate agency action. An
employee who participates in a Board investigation
.may not be called formally to testify or may be dis-
charged before any hearing at which he could testi-
fy. His contribution might be merely cumulative or
the case may be settled or dismissed before hearing.
Which employees receive statutory protection
should not turn on the vagaries of the selection
process or other events that have no relation to the
need for protection. It would make less than com-
plete sense to protect the employee because he par-
ticipates in the formal inception of the process (by
filing a charge) or in the final, formal presentation,
but not to protect his participation in the important
developmental stages that fall between these two
points in time . This would be unequal and inconsist-
ent protection and is not the protection needed to
preserve the integrity of the Board process in its en-
tirety.
I conclude from the Supreme Court's holding in the
AA Electric case that Palmer was entitled to the protec-
tion of Section 8(a)(4) of the Act under the facts of this
case.
X. THE CHALLENGE TO THE BALLOT OF KEVIN
NICHOLS
A. Facts
Kevin Nichols was the night chef at Respondent Cafe
La Salle at the times material . He supervised the kitchen
staff at the restaurant . Cline said that Nichols was his im-
mediate supervisor in the kitchen. Cline said that Nichols
was the one who had recommended that Cline be as-
signed to the night shift. Cline said that Nicholas also
was the one who had recommended the termination of
employee Robert Rowland.SB
Palmer said that she had been told to do what Nichols
told her to do. Palmer considered Nichols to be a part of
management.39
se The foregoing is based on the credited testimony of Cline
89 The foregoing is based on the credited testimony of Palmer.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Szydlowski wanted to work on the night shift at the
restaurant. Szydlowski approached Cardozo and asked if
he could work on the night shift. Cardozo replied that
he would think about it. Szydlowski later again asked
Cardozo about working on the night shift. Cardozo re-
plied at that time that Nichols did not want Szydlowski
to work on the night shift. Szydlowski asked why. Car-
dozo said that Szydlowski would have to talk to Nichols.
Szydlowski then spoke with Nichols, who told Szyd-
lowski that it was all right with him for Szydlowski to
work on the night shift. Szydlowski informed Cardozo
of what Nichols had said . Szydlowski then worked with
Nichols for a few months prior to the election. Szyd-
lowski said at the hearing that if Nichols wanted some-
thing to be done, Szydlowski did it. He recalled that
Nichols told the maitre d' on one occasion that the
maitre d ' was seating too many customers , and not to do
that. Szydlowski also recalled at the hearing that on a
couple of occasions Nichols had called Szydlowski "a
name." Szydlowski reported that fact to Cardozo, who
told Szydlowski to bear with it, and that there was noth-
ing Cardozo could do about it.40
B. Conclusions
It is recognized that it is not necessary that a person
possess all the statutory authority set forth in Section
2(11) of the Act because that section is to be read in the
disjunctive. Ohio Power Co. v. NLRB, 176 F.2d 385 (6th
Cir. 1949), cert. denied 338 U.S. 899 (1949); Arizona
Public Service Co. v. NLRB, 453 F.2d 228 (9th Cir. 1971);
Big Rivers Electric Corp., 266 NLRB 380, 382 (1983).
Nichols did not testify at the hearing in this proceeding,
but based on the credited testimony of the employees
named above in the findings of fact, I conclude that the
evidence showed that Nichols supervised and responsibly
directed the employees on the night shift in the kitchen
at the restaurant. Nichols' recommendation regarding the
assignment of Szydlowski to the night shift was an effec-
tive recommendation and, thus, Nichols' action in that
regard meets still another one of the criteria set forth in
Section 2(11) of the Act. Accordingly, I find that Nich-
ols was a supervisor of Respondent Cafe La Salle at the
times material in the representation proceeding . There-
fore, I recommend to the Board that the challenge to the
ballot cast by Nichols be sustained.
XI. THE CHALLENGE TO THE BALLOT OF PAUL
STURGES
A. Facts
Paul Sturges began his employment with Respondent
Cafe La Salle in November 1982. His first job was to
order the wine, liquor, and beer for the restaurant.
Sturges also performed some maintenance and repair
work at the restaurant.
Sturges began acting as a host sometime in July or
August 1984 when Alex Stiles left the restaurant. Sturges
had served as a host prior to that time only during
lunchtime and only under the supervision of a manager.
Hochkoeppler changed the method by which Sturges
was paid in either August or September 1984 . Sturges
had been paid at the rate of $6 an hour. He had usually
worked over 40 hours a week, but Sturges had not re-
ceived overtime pay. Hochkoeppler put Sturges on a
salary basis, and Sturges was paid $250 a week.
Hochkoeppler told employees at a meeting that there
was a vacancy in the manager 's position after Stiles had
left the restaurant. Hochkoeppler told them that there
were not enough managers to cover all of the day and
night shifts 7 days a week. Hochkoeppler said, therefore,
that Sturges would come in by himself on certain days
and cover some of the shifts as a host.
Sturges worked Monday through Saturday during the
week before 7 October 1984, which was the pay period
for determinig eligibility to vote in the election. Sturges
reported to work at the restaurant about 8 a.m. He
stocked the wine cages so that there would be sufficient
wine for the 120 wines on the restaurant's wine list. At
lunchtime, Sturges set up the board and he examined the
schedule which Cardozo had made out previously.
Sturges assigned the waiters to their station. He ex-
plained at the hearing, "[T]he early ones get the first sta-
tions and so on." Sturges worked under Hochkoeppler as
a host on Mondays, Tuesdays, Thursdays, and Fridays.
Hochkoeppler did not work on Wednesday, so Sturges
worked as a host by himself.
Sturges met after lunch with purveyors of wine,
liquor , and beer . Sturges estimated at the hearing that
there were approximately 100 such salesmen.
Sturges sometimes worked on Sunday nights during
October 1984 at the restaurant. On those occasions he
acted as a host. Sturges greeted customers , seated the
customers, talked with them and tried to make them feel
comfortable, wrote a ticket for the waiter at the table,
and gave the ticket to the waiter. Sturges said that a bar-
tender usually closed the restaurant on Sunday nights,
but Sturges did so once or twice.
Sturges said that there was no change in his duties be-
tween 7 October and the election on 31 October 1984.
Sturges said that he had no authority to hire or fire em-
ployees, or to effectively recommend the hiring or firing
of an employee.
Sturges recalled at the hearing that on one occasion
while he was acting as a host at the restaurant that
Palmer placed a dish of escargots on the table and the
dish exploded. Sturges said that the contents of the dish
spilled on the customer, the table, and Palmer . Sturges
told the customer that he would get him another dish of
escargots . Sturges did not consider that to be giving a
complimentary meal to a customer, but instead to be re-
placing a dish which had been improperly prepared.
Sturges was not given the title of day manager or
night manager prior to the election on 31 October 1984.
Sturges was given the title of day manager and he was
given additional authority in December 1984. At that
time, Sturges began scheduling employees for work, and
he was given the authority to hire and fire. His salary
40 The foregoing is based on the credited testimony of Szydlowski
CAFE LA SALLE
was increased from $1100 a month to $1400 a month in
February 1985.41
B. Conclusion
I conclude that the credited evidence showed that
Sturges was not a supervisor within the meaning of Sec-
tion 2(11) of the Act at the times material to the repre-
sentation proceeding. He later attained supervisory au-
thority, but that was in December 1984, which was after
the election. I conclude from his description of his duties
as a host at the restaurant that Sturges did not possess or
exercise true supervisory authority over employees. With
regard to his assignment of waiters to their stations at
lunch, Sturges followed the schedule which Cardozo had
made out earlier. He made the assignment mechanically
based on "the early ones get the first stations and so on."
Thus, I conclude that Sturges was not exercising inde-
pendent judgment in making those assignments of sta-
tions. I have considered the fact that Sturges was com-
pensated on the basis of a salary prior to the election,
rather than on an hourly wage basis. However, I con-
clude that the method of his compensation by itself does
not establish supervisory authority. In view of the fore-
going, I conclude that Sturges was an eligible voter at all
times material to the representation proceeding. There-
fore, I recommend to the Board that the challenge to the
ballot of Sturges be overruled, and that Sturges' ballot be
opened and counted.
XII. THE UNION'S OBJECTIONS TO THE ELECTION
The Union filed the following objections to the elec-
tion:
In an effort to dissuade employees from voting
for the Union, the Employer engaged in the follow-
ing objectionable conduct, some of which is the
basis for Charges filed under 20-CA-1327:
1. Harassed and intimidated employees who were
active in the organizing drive and picket line at the
restaurant prior to the election by the discrimination
against and termination of those enumerated in said
charges.
2. Laid off or reduced hours of work to employ-
ees supporting the Union while hiring new employ-
ees or retaining less senior employees who did not
support the Union.
The Union had also filed an unnumbered objection to
the election, but that objection was withdrawn by the
Union.
The Board held in Dal-Tex Optical Co., 137 NLRB
1782, 1786-1787 (1962):
Conduct violative of Section 8(a)(1) is , a fortiori,
conduct which interferes with the exercise of a free
and untrammeled choice in an election. This is so
because the test of conduct which may interfere
with the "laboratory conditions" for an election is
considerably more restrictive than the test of con-
41 The foregoing paragraphs are based on the credited testimony of
Sturges
397
duct which amounts to interference, restraint, or co-
ercion which violates Section 8(a)(1).
Based on my finding of a violation of Section 8(a)(1)
of the Act, as described in section V of this decision, and
based on my finding of a violation of Section 8(a)(1) and
(4) of the Act, as described in section IX of this decision,
I conclude that Respondent Cafe La Salle engaged in
conduct which interfered with the "laboratory condi-
tions" which the Board requires for its representation
elections. Such conduct took place within the critical
period relevant for considering objections to the election,
i.e., between the filing of the petition and the holding of
the election. The grant of benefits with regard to the en-
tertainment coupons took place on 26 October 1984,
which was just a few days before the election was held.
Those benefits affected a substantial number of the unit
because waiters and waitresses were to receive the com-
plimentary entertainment coupons. The refusal to write a
letter of recommendation took place on the same day of
the election but before the polls had closed because
Palmer cast her ballot after Cardozo's refusal to give her
a letter of recommendation. While Palmer was not an eli-
gible voter in the election, I should not presume that
other employees did not learn of Respondent Cafe La
Salle's action before they voted in the absence of evi-
dence to the contrary. The above conduct was not spe-
cifically alleged in the Union's objections, but I conclude
that such conduct affecting the "laboratory conditions"
of the election should not be ignored in this consolidated
proceeding in determining whether the employees had "a
free and untrammeled choice in an election." Del-Tex
Optical, above. Accordingly, I recommend to the Board
that the objections to the election be sustained based on
the conduct described above.
Charging Party's Exhibit 1 is a copy of a letter dated
12 October 1984 from Curtis to the employees of Re-
spondent Cafe La Salle. Charging Party's Exhibit 2 is a
copy of a letter dated 16 October 1984 with attachments
from Curtis to Donna Palmer. These documents were in-
troduced at transcript pages 21-22. The Charging Party
has not pointed to any specific item in those letters as
being a basis for its objections to the election, and I
found none.
I make the following recommendations to the Board
with regard to Case 20-RM-2548:
1. That the challenge to the ballot of Kevin Nichols be
sustained.
2. That the challenge to the ballot of Paul Sturges be
overruled.
3. That the ballots of Paul Sturges and Joe Vona III
be opened and counted by the Regional Director for
Region 20 of the National Labor Relations Board, or his
agent, and that the Regional Director issue a revised
tally of ballots.
4. If the revised tally of ballots discloses that the
Union has received a majority of the valid votes cast in
the election, then I recommend that the Regional Direc-
tor for Region 20 of the National Labor Relations Board,
on behalf of the Board, issue a certification of representa-
tive to the Union as the exclusive collective-bargaining
representative of the employees in the unit.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. If the revised tally of ballots discloses that the
Union has not received a majority of the valid votes cast
in the election, then I recommend that the Regional Di-
rector for Region 20 of the National Labor Relations
Board, on behalf of the Board , order that the first elec-
tion be set aside based on the objectionable conduct de-
scribed above and that the Regional Director for Region
20 of the National Labor Relations Board direct that a
second election be conducted when the Regional Direc-
tor finds that it would be appropriate to hold such a
second election among the employees in the unit who
are currently employed at the time that the Regional Di-
rector issues the notice of a second election.
CONCLUSIONS OF LAW
1. Respondent Cafe La Salle is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent Cafe La Salle has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act by granting benefits on 26 October 1984 to em-
ployees in order to dissuade employees from seeking
union representation.
4. Respondent Cafe La Salle has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(4) of the Act by refusing on 31 October 1984 to write a
letter of recommendation for Donna Palmer because the
Union had filed an unfair labor practice charge against
Respondent Cafe La Salle alleging that Respondent Cafe
La Salle had laid off or terminated Palmer for discrimi-
natory reasons.
5. The unfair labor practices described above affected
commerce within the meaning of Section 2(6) and (7) of
the Act.
6. Respondent Cafe La Salle, Respondent Old Sacra-
mento, and Respondent PFMS are not joint employers of
employees.
7. Respondent Old Sacramento and Respondent PFMS
have not engaged in the unfair labor practices as alleged
in the General Counsel's amended consolidated com-
plaint.
THE REMEDY
Because I have found that Respondent Cafe La Salle
has engaged in certain unfair labor practices within the
meaning of Section 8(a)(1) and (4) of the Act, I shall rec-
ommend to the Board that Respondent Cafe La Salle be
ordered to cease and desist from engaging in such unfair
labor practices and to take certain affirmative action de-
signed to effectuate the policies of the Act.
As indicated in section IX of this decision, the General
Counsel does not seek as a remedy that Respondent Cafe
La Salle be ordered to write another letter of recommen-
dation for Palmer.
On these findings of fact, conclusions of law, and on
the entire record in this proceeding, I issue the following
recommended42
ORDER
The Respondent, La Salle Investment Co., Ltd., d/b/a
Cafe La Salle, Scramento, California, its officers, agents,
successors , and assigns, shall
1. Cease and desist from
(a) Granting benefits to employees in order to dissuade
employees from seeking union representation by the
Charging Party or any other labor organization.
(b) Refusing to write a letter of recommendation for
an employee because an unfair labor practice charge in-
volving that employee had been filed against Respondent
Cafe La Salle.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by the Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at Sacramento, California, copies of the at-
tached notice marked "Appendix."43 Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutice days in conspicuous places including all places
where notice to employees are customarily posted. rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the General Counsel's
amended consolidated complaint in this proceeding be
dismissed concerning Respondent Old Sacramento and
Respondent PFMS.
42 If no exceptions are filed as provided by Sec . 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
as If 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 Nation-
al 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."