Chef Nathan Sez Eat Here, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1970

181 N.L.R.B. 159 (N.L.R.B. 1970)

CHEF NATHAN SEZ EAT HERE , INC. 159
Chef Nathan Sez Eat Here , Inc. and Local 50,
American Bakery & Confectionary Workers
Union , AFL-CIO. Case 22-CA-3800
February 16, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On November 18, 1969, Trial Examiner Sidney
D. Goldberg issued his Decision in the
above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. He also found that Respondent had not
engaged in other unfair labor practices alleged in the
complaint and recommended dismissal of these
allegations . Thereafter, the General Counsel filed an
exception and supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The Board has
considered the Trial Examiner's Decision, the
exceptions and brief, and the entire record in this
proceeding, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner, except as modified below.
The Trial Examiner concludes that the General
Counsel has failed to prove that Respondent
discharged Estaban Estrada because of his protected
activity. The General Counsel excepts to this
finding. We find merit in the General Counsel's
exception.
Estrada was discharged by Supervisor Bucky
Reingold on April 30, 1969, the day after
Respondent discharged discriminatee John Fabbiani.
Immediately following Estrada's discharge, Bucky2
gave Estrada a ride back to New York. During the
ride Bucky asked Estrada if he knew why he had
been discharged.3 Estrada said that he did not know
and that he would like to know. Bucky informed
Estrada that the same thing that happened to
Fabbiani had happened to Estrada, namely Fabbiani
had been discharged for bringing the Union in and
Estrada for signing a union card.4 Estrada was never
offered any other explanation for his discharge and,
in fact, as he was about to get out of the car was
told by Bucky that he was a good man, that he,
Bucky, liked the way Estrada worked, that the only
error he made was that he signed for the Union, and
'The Charging Party, by telegram , adopted the General Counsel's
exception and supporting brief,
that "if this reaches an agreement," he would be
called back.
We believe that where, as here, an employer tells
an employee that he is being discharged solely
because of his protected activities, such an
admission should be taken at face value. The Trial
Examiner speculates that the admission may have
been a ploy to get Estrada to talk about the Union.
If we were to engage in such a speculation we would
leave the door open for an employer to tell an
employee at the time of his discharge that he was
discharged for protected activities, with the effect
that would have on other employees, and then to
later defend on the ground that actually the
employee was discharged for some other legitimate
reason. We are unwilling to do so. Instead we infer
that an employer is stating the actual reason for the
discharge when at the time of the discharge he tells
an employee that he is being discharged only
because he engaged in protected activities. Here
Respondent told Estrada, at the time of his
discharge, that he was being discharged only because
he signed a union card. Therefore, we infer that that
was the actual reason for the discharge and conclude
that Respondent discharged Estrada for engaging in
a protected activity.'
Accordingly, we find that Estrada was discharged
for engaging in a protected activity and that
Respondent thereby violated Section 8(a)(3) and (1)
of the Act.6
'Like the Trial Examiner , we hereafter refer to Bucky Reingold as
"Bucky" in order to distinguish him from his uncle and Respondents'
owner, Irving Remgold
'Estrada 's account of the conversation during this ride is uncontroverted,
(Bucky did not testify ) and credited by the Trial Examiner (See TXD, fn.
27.)
'Bucky also told Estrada that "one by one" he was going to discharge
all of the card signers Bucky subsequently repeated this statement to two
other employees , Benito Zarzuela and Luis Leon, a further indication that
Respondent thought the signing of a union card was a sufficient reason to
discharge an employee.
'Even if we were to consider the possibility of a ploy we would conclude
that Bucky's statement to Estrada did not constitute a ploy to get Estrada
to talk about the Union Bucky could easily have introduced the subject
without such an admission . Also, after his interrogation of Estrada was
over and there was no apparent reason for continuing such a ploy, Bucky
again told Estrada that his only error was his signing for the Union.
In this proceeding Respondent contends that Estrada was discharged
because of his general attitude towards his work and his chronic
absenteeism Despite the fact that it permitted Estrada to work his regular
shift on April 29, Respondent contends the discharge was precipitated by
Estrada's failure to report for work the weekend of April 26 and 27 The
Trial Examiner , in our opinion, correctly rejects Respondent 's contentions
that Estrada was discharged because of his general attitude However, he
rinds that Estrada's absenteeism precludes a finding that the reason was
pretextual We do not agree . If the actual motivation for a discharge is the
employee's protected activity , the discharge is in violation of the Act even
though the employer may also have a nondiscriminatory reason for the
discharge Estrada had a history of absences , yet was not discharged until
Respondent knew , as revealed by Bucky's statement to Estrada, that
Estrada had signed a union card Thus , the timing of the discharge, in light
of Respondent 's vigorous antiunion campaign, as detailed by the Trial
Examiner, establishes that Estrada was discharged for signing a card and
that Respondent 's defense of absenteeism is a mere pretext
'Inasmuch as Estrada continued to be an employee at the time Bucky
questioned him concerning the identities of those active in the Union
organizing campaign , and threatened to get rid of all card signers and even
to close the restaurant , we rind that this questioning constituted
181 NLRB No. 29
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMENDED CONCLUSIONS OF LAW
1. In paragraph 3 delete the words; "and by
engaging in surveillance of its employees'
self-organizational activities," and substitute the
words; "by interrogating employees concerning their
union activities."
2. Delete paragraph 4 and substitute the following
paragraph 4:
By discharging John Fabbiani on April 29, and
Estaban Estrada on April 30, and thereafter refusing
to reinstate them, Respondent has discriminated
against them to discourage their membership in the
said labor organization and has thereby violated
Section 8(a)(3) of the Act.
3. Delete paragraph 8.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations 'Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial, Examiner, and
orders that the Respondent, Chef Nathan Sez Eat
Here, Inc., Hackensack, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as modified herein:
1. Delete paragraph 1(b) of the Trial Examiner's
Recommended Order and substitute the following
paragraph 1(b):,
"Interrogating employees concerning their union
activities."
2. Change paragraph 2(a) by inserting just prior
to the words "offer to Luis Leon, ..." the following
clause, "offer to Estaban Estrada immediate and
full reinstatement to his former position, or to a
position substantially equivalent to that which he
held immediately prior to April 30, 1969, without
prejudice to his seniority and other privileges;"
3. Change paragraph 2(b) by inserting the name
"Estaban Estrada" after the name "John Fabbiani."
4. In the "Notice , to All Employees", first
paragraph, renumber the subparagraph beginning
"4. By discharging Luis Leon . . ." as subparagraph
5 and insert the following above it as subparagraph
4:
"By discharging Estaban Estrada on April 30,
1969, and 'refusing to reinstate him because he
joined Local 50, American Bakery '& Confectionery
Workers Union, AFL-CIO."
5. In the second unnumbered paragraph delete the
word "again."
6. In the third unnumbered paragraph,
subparagraph 3, insert after the words, "WE^ WILL
offer to give back their jobs to John Fabbiani," the
name "Estaban Estrada."
interrogation instead of surveillance, as found by the Trial Examiner, as
well as 8(axl) restraint and coercion
TRIAL EXAMINER'S DECISION
SIDNEY D. GOLDBERG, Trial Examiner: In . this
proceeding, under Section 10(b) of the National Labor
Relations Act, as amended, the complaint' alleges that
Chef Nathan Sez Eat Here, Inc. (herein called
Respondent), which operates, a restaurant. in Hackensack,
New Jersey, had, in violation of Section 8(a)(1) and (3) of
the Act, interfered with organizational rights of its
employees by coercive interrogation and threats of
retaliation, had discharged two employees because of their
activity on behalf of Local 50, American Bakery, &
Confectionary Workers Union, AFL-CIO (herein called
the Union), and had refused, after a strike was
terminated, to reinstate these two discharged employees
and several others who participated in the strike.
Respondent answered, denying the commission of the
unfair labor practices alleged, and a trial of the issues so
raised was held before me at Newark, New Jersey, on
July 28 and 29 and August 6 and 8, 1969, at which time
all parties were present and represented by counsel and
were afforded an opportunity to adduce evidence, to
cross-examine witnesses, and to argue on the facts and the
law The brief filed by the General Counsel has been
considered. , ..
For the reasons hereinafter set forth in detail, I find
that Respondent did restrain and coerce its employees in
their self-organizational efforts; that it discharged John
Fabbiani to discourage his union membership and
activities; and that its discharge of employees Hector
Melendez, William Melendez, and Luis Leon for engaging
in a strike, and its refusal to reinstate them after the
termination of the strike were also to discourage their
union, membership and activities The discharge of
Estaban Estrada, however, I find not to have been
unlawful.
Upon the entire record in the case2 ands from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. BUSINESS OF THE EMPLOYER
Respondent admits that, during the 4 months following
commencement of business in January 1969, its receipts
amounted to more than $200,000 and that its expected
gross receipts for the year 1969 would exceed $500,000. It
also admitted that, during the stated period, it had
received, from outside the State of New Jersey, goods
valued in excess of $100,000. On these facts, I find that
Respondent is an employer engaged in commerce '
II. THE LABOR ORGANIZATION INVOLVED
Respondent did not contest 'the 'allegation of the
complaint that the Union is a' labor organization within
the meaning of the Act and I so find
III. THE UNFAIR LABOR PRACTICE
A. Summary of Events
Briefly stated, the relevant events in this case are as
follows:
' Issued June 25, 1969, on a charge filed May 16, 1969
'Typographical errors in the transcript of proceedings have been
corrected by order dated October 7, 1969.
'Northwest Smorgasbord, Inc, 163 NLRB 425; City Line Open Hearth.
Inc, 141 NLRB 799
CHEF NATHAN SEZ EAT, HERE, INC.
About April 15, 1969,' two of the employees of
Respondent signed cards authorizing the Union to
represent them and began soliciting other employees to do
the same. On April 29 Respondent discharged John
Fabbiani, one of these two employees, and on April 30
discharged employee Estaban Estrada. On May 7 and 8
the Union set up a picket line, consisting of Fabbiani and
a business agent of the Union, in front of the entrance to
Respondent's restaurant, but during these 2 days the
employees paid no particular attention to the picket line
and' went to work. On the third day of the picketing,
however, about a dozen of the 28 employees on the day
shift refused to cross the picket line, some joining it.
During the day those who had refused to go to work were
discharged. That same evening , the picketing was enjoined
by a temporary restraining order issued by the Superior
Court of the State of New Jersey The employees who had
been on the picket line thereupon ceased picketing and,
with a representative of the Union, entered the restaurant
and asked that they be put back to work. Respondent
accepted some of them but declined to reemploy three
particular employees or to reinstate Fabbiani and Estrada,
who accompanied them. These men again applied,
unsuccessfully, for reinstatement on the Tuesday and
Wednesday of the following week.
B. The Issues
The General Counsel contends that the evidence in this
case requires findings that, during the period from April
29 to May 9, Respondent, through its president, Irving
Reingold, and its manager, Noel B. Reingold, interfered
with employee rights by coercively interrogating them
concerning their membership in and activities on behalf of
the Union, by threatening to close the restaurant if they
should choose to be members of or represented by the
Union, and by telling them that their union activities were
being kept under surveillance. The General Counsel also
contends that the record requires a finding that employees
John, Fabbiani and Estaban Estrada were discharged
because of 'their union activity and that Respondent's
refusal to reinstate employees Hector Melendez, William
Melendez, and Luis Leon, after the termination of the
economic strike on May 9, was also because of their
union activity. It is also contended by the General Counsel
that the record requires the making ' of the subsidiary
findings necessary to support the foregoing; namely, that
Noel Reingold and Costas Moussouris were supervisory
employees of Respondent.
Respondent's contentions are less well defined, since its
counsel waived oral summation, stating that he would file
a brief, and then elected not to file one. In his statement
opening the defense, however, Respondent's counsel stated
that Fabbiani and Estrada were discharged for cause,
citing several shortcomings in performance for each of
them. With respect to the three employees not reinstated
at the end of the strike, he stated that Respondent
contended that they (i) quit; (ii) became surplus during the
strike since the restaurant continued to operate without
them; (iii) were permanently replaced; and (iv) failed to
report for work on the 3 days following the end of the
strike.
'All dates herein are 1969
C. Discussion
161
1. Background
Respondent's restaurant is situated on New Jersey
Route 4, one of the principal highways in the northern
part of the State, and it was designed and constructed to
give quick service. The counter, 125 feet 'long and
exten'ding almost the entire width of the building, is
divided into nine sections or departments offering different
foods.' Each department has one or more employees and
payment for the items purchased is made directly to the
counterman on duty there. The counter is situated well
inside the building and the front half of the structure
contains tables sufficient to accommodate 450 persons. To
these tables the customers carry the food they have
purchased at the various sections of the counter.
Back of the counter and the working area of the
countermen is the kitchen, in charge of the chef. He has
one or more kitchen men to assist him-and porters to
wash the pots. There are no dishes to be washed since
everything is served in paper plates and cups but there are
several bus boys to clear debris from the tables. .
During the period involved in this case, the restaurant
was open for business 7 days a week, from 6 a.m until 2
a in. and, on weekends, sometimes until 3 or 4 a.m.
2. The staff
Irving Reingold , president and sole owner of
Respondent , was personally in charge of the business. He
had no previous experience in the restaurant business but,
prior , to opening, he had some instruction and advice in
planning and operation from a man who had worked at
the original Nathan's restaurant . Reingold also had, as his
principal assistant, his nephew Noel B . Reingold' who had
some experience in operating a "carry-out" sandwich shop
in New York City, and to whom he had promised a
20-percent 'interest in the enterprise if they should 'find
themselves "compatible "
In addition • to Bucky , Respondent employed an
experienced manager , Costas Moussouris ,' whose
qualifications included a working knowledge, of, several
languages , particularly useful for Respondent since many
of the rank-and-file employees were from Puerto Rico and
Latin America and could not communicate fluently except
in Spanish . The complaint alleges that both Bucky and
Gus were supervisory employees of Respondent but the
allegation was denied by the answer and these issues were
fully litigated . Discussion and determination of these
issues appear below.
The office staff consisted of Theodore Braustein, the
controller , Sanford Nusbaum , an office clerk with some
operating duties, and a female office clerk . The office was
located at the side of the building separated from the end
of the serving counter by a narrow passageway leading to
the rear of the building.
According to Reingold , the countermen and other
rank- and-file employees are, with a few exceptions,
considered as unskilled labor , requiring minimal training
to learn to dispense the food and accept payment for it.
'These include the clam bar, delicatessen , coffee and cake , hamburger,
fried food and steam table, hot dog , pizza, soda, and ice cream counters.
'Noel B Remgold was generally called by his nickname , "Bucky," and
he will be referred to herein by that nickname References herein to
"Reingold" are to Irving Reingold
'He was called "Gus," by Remgold and the employees , and he will be
referred to herein by that name
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The major exception is, of course , the chef. In addition,
some simple skills are necessary to operate the clam bar
and the delicatessen counter .' Although the newspaper
advertisement for help which Respondent ran routinely in
the local newspaper called for "DELI MAN -
COUNTERMAN - CLAM MAN - PIZZA MAN,"
Reingold testified that (always excepting the chef) no
wage rate was attached to any particular job and that
every employee 's salary was based upon his individual
ability to perform where he was assigned . He also stated
that the employees at the several counters were more or
less interchangeable , since it was expected that any man
whose section was not busy would move over to help at a
section which was busy, and that it was not unusual for a
man to be shifted from place to place to fill in for an
absent employee or one on his meal break.
The counter help worked in two shifts, although there
was no clearly delineated changeover time. In general, the
day shift worked from opening until evening , and the
night shift took over from the day shift and worked until
closing.
3. Supervisory status of Bucky and Gus
Buckv, as stated, is Reingold's nephew; he had some
experience in a food-selling business and joined his uncle
in operating Respondent's restaurant under a promise of a
20-percent interest if they should find themselves
"compatible "
Although Respondent adhered to the denial in its
answer that Bucky was a supervisory employee, Reingold
testified that he took Bucky in with him on the
assumption that Bucky had sufficient ability "to run the
place" in his absence. Reingold also conceded that Bucky
hired people "on his own" and that "if they did not prove
satisfactory, he also let them go." In addition, Gus
testified that he obtained Bucky's permission to take
actions he didn't think he could take on his own authority.
Employee Estrada testified that Bucky often transferred
him from one counter to another.
It seems clear to me, on this record, that Bucky was a
supervisor and, in all probability, Respondent's executive
official, subordinate only to Reingold. In any event, on
the basis of his conceded independent authority to hire
and fire, I find that he was a supervisor within the
meaning of Section 2(11) of the Act and an agent of
Respondent.
Gus was, according to Reingold, the "steward" at the
restaurant, but he had no formal title ' While Reingold
testified that Gus had no formal independent power to
hire or fire employees, he testified that Gus interviewed
applicants for employment who could not speak English
and made recommendations to him. He stated that there
may have been times when he followed Gus' advice and
others when he did not, but he conceded that he could not
recall an instance (during the relevant period) when he did
not follow Gus' advice. He also testified that Gus had
authority to transfer any employee from one operation to
another and could independently grant time off to any
employee who requested it.
According to Gus' testimony, he considered his
principal responsibility to be the efficient functioning of
the counter: to switch men from one position to another
'Remgold testified that , after the chef, the delicatessen counterman
"comes second in the skills" and that it would require about 1 - 1/2 hours
to tram an employee to be "an efficient clam man."
'Nusbaum , an office employee , called Gus the "day manager "
as needed and to see that the countermen properly
performed their work.' ° He testified that he prepared the
work schedule for the employees and told them when and
where they would work;" and that, on one occasion, he
called together all the counter employees and instructed
them that, if they wanted an extra day off, they were to
ask him for it a day in advance and not to take off
without permission. He also stated that he always granted
such requests if he could arrange a replacement for the
man While Gus testified that he did not have independent
power to discharge employees, he stated that there was an
exception to this limitation on his authority: that he had
the right to discharge any employee caught stealing and
that, on the one occasion when he caught an employee
stealing, he discharged him.
In view of Gus' preparation of the work schedule, his
general supervision of the work of the countermen, his
right to shift employees from one position to another, his
authority to grant time off, the effectiveness of his hiring
recommendations, and his authority, albeit limited, to
discharge employees, I find that Gus responsibly directed
the counter employees and that he was a supervisor within
the meaning of the Act.' Z
4. The organizing campaign
Sometime between April 18 and 22 John Fabbiani and
Luis Leon began passing out union authorization cards at
the restaurant and soliciting their fellow workers to sign
them. Fabbiani testified that he carried on these activities
both on his work breaks and while he was working, but
not when Reingold was nearby. He did, however, tell Gus
about his union solicitation, saying he wanted to get the
Union into the place, and Gus said it was a good idea''
Gus testified that he did not tell Reingold about the union
activity.
According to Fabbiani, he and Leon obtained about 22
signed cards which they turned over to Dominick
LaSpina, the business agent of the Union from whom he
had received them.
Reingold also testified that he did not learn about the
union activities from Gus but that he learned about them
from Bucky a day or two after Fabbiani was discharged
on April 29 Reingold testified that Bucky "mentioned
something about the fact that the boys were trying to
organize" that he "just mentioned that casually" and
mentioned it "again and again," whereupon he, Reingold,
said "well we'll see what happens." Reingold also testified
that Bucky's mention of the Union's organizing campaign
was either a day before or a day after the visit by Business
Agents Cassidy and Grezlak. Reingold also testified that
"Both Reingold and Gus testified that , if necessary, Gus would get
behind the counter and help out
"Reingold corroborated this testimony
"Autotronics. Inc, 176 NLRB No 96; Cromwell Printery, Inc, et al.
172 NLRB No. 212, fn. 3, J P Stevens and Co, Inc. 163 NLRB 217,
225; Quality Markets, Inc, 160 NLRB 44, 50.
"Although Gus testified that he understands Spanish , Greek, Russian,
and Japanese , and he testified in English, it cannot be said that his
testimonial language was a model of precision . When asked whether
Fabbiani had told him that he was passing out union cards his answer was,
"I don't remember, sir, could be so, but I don 't remember " When
asked whether he knew that union cards were being passed around he said,
"nothing official , I know nothing official " But when asked whether he
heard anything "unofficial" he said he "heard something, always talked
about union . and I say myself, I love union . " He also stated
definitely that he first heard the talk about the Union before Fabbiani was
discharged. Based upon his testimony and Fabbiani 's, I find that Fabbiani
did tell Gus about the union activity prior to his discharge.
CHEF NATHAN SEZ EAT HERE , INC. 163
after Bucky had told him of the union organizing effort he
noticed that it was "buzzing about the place at that time "
The subject of Reingold's knowledge of union activity is
discussed below in connection with Fabbiani's discharge.
5 The discharge of Fabbiani
John Fabbiani was hired by Bucky on January 13, the
day before the restaurant opened, to serve ice cream and
soft drinks. This department, Reingold testified, represents
the largest investment of money and space in the
enterprise, occupying 25 feet of the 125-foot counter. It
includes a soda fountain, ice cream containers, four "soft
ice cream" dispensers, and a "malt shake" or "soft
shake" dispenser.
On Tuesday, April 29, about 1:30 p.m. Sanford
Nusbaum told Fabbiani he was wanted in the office.
When he entered the office he found Bucky and Braustein
there. According to Fabbiani, Bucky began to complain
that the restaurant was losing money; that he, Fabbiani,
said: "Come to the point, what do you want to tell me'",
that Bucky said: "I will have to let you go"; that he asked
why and that Bucky said "We are losing money, we don't
need you." Bucky also said something about his lack of
ability on the job, but did not go into details He was
given the money then due him and he left."
At the trial, Respondent took the position that
Fabbiani was discharged because he was discourteous to
customers and because he abused and misused the soft ice
cream and malt shake machines.
In support of the alleged discourtesy to customers,
Reingold testified that, during the final month of his
employment, Fabbiani began to greet customers in a
strongly affected manner , saying "hello" in a voice with a
rising and falling intonation , and stating the charges in as
many dollars as should have been expressed in cents.
Reingold testified that Fabbiani's substitution of dollars
for cents occurred twice within his hearing; that each time
he reprimanded Fabbiani and that Fabbiani expressed
regret, saying he would not do it again. With respect to
the use of an affected tone of voice, Reingold testified that
it occurred five or six times within his hearing and that he
reprimanded Fabbiani for it each time except once when
he was too far away and he had already lost patience with
Fabbiani. He also testified that he had reports of similar
occurrences from both Bucky and Gus and that it was he
who ordered Fabbiani's dismissal. Nusbaum testified that
he heard Fabbiani use the unusual tone of voice two or
three times in a single day but that since he had had an
argument with Fabbiani some time in the past, he did not
say anything directly to him but told Bucky about it
Nusbaum also testified that two or three customers had
complained directly to him about Fabbiani's manner of
speaking
Fabbiani denied using any particularly affected style or
tone of voice to customers but he admitted that, on one
occasion about a month before he was discharged, he told
one person, a frequent customer with whom he had
become acquainted, that the charge for her purchase was
30 dollars, although it was, in fact, 30 cents. He said that
Reingold was passing nearby when this occurred and told
him not to talk to customers "that way"; that he
answered by telling Reingold that he had no sense of
"Neither Bucky nor Braustem testified in this case the failure of Bucky
to testify is further discussed herein but there is no indication that
Braustein had left Respondent's employ and , upon Fabbiani's
uncontradicted testimony , I accept Fabbiani's account of the incident.
humor; and that there was no repetition of the incident.
Respondent called another employee, Love Johnson, and
questioned him concerning Fabbiani's alleged mannerisms
in dealing with customers. Johnson, however, testified
that, although he frequently worked near Fabbiani's
station and heard him in conversation with customers,
except for the fact that Fabbiani sometimes spoke Spanish
when necessary, he heard nothing unusual in the manner
or content of Fabbiani's talk with customers. Gus was
also questioned concerning Fabbiani's conduct: he said it
was not at all unusual for a counter employee, when
dealing with a single customer during a slack time -
particularly if the customer was a girl or "a pleasant
gentleman" - to comment on the weather or make other
mild conversation, and that he had frequently heard
employees quote charges in dollars instead of cents. He
stated that when business was heavy the men had to work
hard, so that when things were slack they often tried to
make their work more pleasant by joking a bit, but could
not recall any particular incident of this kind involving
Fabbiani, although he stated that it was quite possible that
some might have occurred.
In view of the fact that neither Johnson nor Gus, both
called by Respondent, was able to substantiate
Respondent' s claims of Fabbiani's misconduct with
respect to customers," but that only Nusbaum, another
management employee, corroborated Reingold's testimony
on this subject," I am convinced that Reingold enlarged a
single, long past, and minor misdeed - if it was even that
- into a course of incorrigible misconduct in an effort to
justify his discharge of Fabbiani and I reject his
testimony."
Respondent's complaint concerning Fabbiani's misuse
of the machines concerned the two types of dispensers
mentioned above. The soft ice cream machines dispense
that substance through a spigot Inside these machines is a
slowly revolving paddle which keeps the contents at a
proper consistency to flow through the spigot. The
contents of the machine must be kept both cold and soft
but, if the machine is not used for a substantial period of
time, the temperature of the contents tends to become
lower and the contents become too dense to permit the
paddle to revolve. Since the paddle is driven by a pulley
wheel connected to an electric motor by a belt, the
inability of the paddle to revolve immobilizes the pulley
wheel to which it is attached and this, in turn, causes the
belt to slip and heat up or burn from friction, or to burn
out the electric motors.
To avoid such occurrences the machines have a knurl,
or setting knob, designed to be turned up or down to raise
or lower the temperature of the soft ice cream: when the
machine is in frequent use the temperature must be
lowered so that the mixture it contains will be kept cold-
enough and, on the other hand, when the machine is not
frequently used, the temperature must be raised so that
the contents will not harden or freeze up.
It is undisputed that there was considerable difficulty
with these machines during the early days of the
restaurant's operation but Reingold testified that all the
trouble occurred during the daytime, when Fabbiani was
"Neither Johnson nor Gus was in the courtroom when Remgold
testified
"Remgold testified on July 29 but Nusbaum , although he was the next
witness, did not testify until August 6, after a weeklong recess Since they
both spent their entire days at the restaurant, it is a fair inference that
Reingold communicated to Nusbaum the substance of his testimony
"In so doing, I also reject Nusbaum 's testimony as not credible by
reason of his interest , based on his status as part of management.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on duty. Fabbiani testified that he made the adjustments
as necessary, in accordance with the instructions he had
received, but that he frequently found, on returning from
his meal breaks, that his substitute had changed the
setting . There were so many problems and difficulties with
these machines that, according to Reingold's testimony,
they were changed in late March or early April Gus also
testified that the first set of machines had given trouble,
but he testified that trouble occurred when others were on
duty with them, as well as Fabbiani, and he also testified
that after the replacement of the machines there was "not
too much" trouble.
While there is no reason to doubt that Respondent had
difficulties with these first ice cream machines, there is no
substantial evidence that Fabbiani was personally
responsible for any of it. Reingold, in his testimony,
endeavored to blame Fabbiani for all of the troubles with
these machines, but his testimony shows only that
Fabbiani received instructions in operating them from
him, from Bucky, and from representatives of the
manufacturer. This falls considerably short of a showing
that Fabbiani had done anything improper and
Respondent' s replacement of the machines without taking
any action against Fabbiani at that time seriously
undercuts the credibility of Reingold's testimony that he
considered Fabbiani to have been solely responsible for
their frequent malfunctioning . Moreover, it appears from
Gus' testimony that, after the substitution of new
machines about the end of March, there was "not too
much" trouble with them, although Fabbiani continued to
operate them to the moment of his discharge. Reingold's
testimony that Fabbiani failed to clean these machines
was denied by Fabbian ► , who testified that he cleaned
them every day during the slack period in the early
afternoon; moreover, Gus testified that it was the duty of
the night shift to clean the machines and that Fabbiani
was never on the night shift.
Reingold's other complaint concerning Fabbiani's
performance of his duties concerned his operation of the
"malt shake" or "soft shake" machine This machine
dispenses thick drinks from a prepared mix purchased
from a dairy in sealed containers. The mixture, as
purchased, has a mild vanilla flavor but, to permit the
same machine and mixture to provide strawberry and
chocolate shakes, there are, at the base of the stand, three
containers with chocolate, strawberry, and vanilla syrups.
If the customer asks for a chocolate or strawberry shake,
the appropriate syrup is added for flavoring and, if the
customer requests vanilla , it is served as it comes out of
the machine. However, since some customers find the
prepared shake not sweet enough, the vanilla syrup is kept
accessible to sweeten the drink to the customer's taste.
Reingold complained that Fabbiani, because he
personally preferred his own drinks sweeter, persistently
added vanilla flavor to the prepared mix, which made the
machine sticky, and that he had told Fabbiani four or five
times to stop. Fabbiani denied tampering with the
prepared mix; he testified that he added the appropriate
syrup when a customer ordered it and that he added
vanilla only when the customer requested that the drink be
made sweeter Gus corroborated Fabbiani's testimony
concerning the procedure that was to be followed in
dispensing drinks from this machine but there is no
corroboration for Reingold's testimony that Fabbiani
improperly altered the mixture. Since Gus was directly
responsible for operation of the counter and was engaged
at all times in supervising the countermen, it would seem
that Reingold would have directed Gus' attention to
Fabbiani' s variation from the normal use of the machine
and directed him to see that the improper practice was not
repeated. Accordingly, despite Reingold's testimony that
he called this matter to Gus' attention several times, the
lack of any testimony by Gus on this point must be
considered in reaching a conclusion For the reasons set
forth throughout this Decision with respect to Reingold's
efforts to justify his conduct, I find his testimony
insufficient to support Respondent' s claims of Fabbiani's
misconduct in the performance of his duties.
Since Respondent's evidence herein does not support its
claim of misconduct by Fabbiani justifying his discharge,
the real reason for Fabbiani's discharge must be sought
elsewhere in the record. I find it in the timing of
Reingold's discovery of the organizational activity among
the employees.
On the basis of the testimony of both Fabbiani and
Gus, I have found that Gus was aware of the
organizational activity and Fabbiani's participation in it
prior to Fabbiani's discharge on April 29. Although Gus
testified that he did not tell Reingold what he had heard,
Reingold conceded that he learned about the union
activity "about the same time" as the visit of Business
Agent Cassidy, specifically, he testified, "a day sooner or
after," and that he learned it from Bucky.i' Reingold was
unable to fix the date when he had the visit from the
union officials, but Cassidy testified that, after he and
Business Agent Grezlak talked with Reingold, he went
directly from that meeting to the Board's Regional Office
where he filed a representation petition Since
Respondent' s counsel conceded that the petition was filed
on April 30, it follows, therefore, that Reingold definitely
knew of the union activity no later than April 30, the day
following Fabbiani's discharge, when he heard it from the
union business agents. But Reingold also testified that he
might have learned it from Bucky a day before the visit of
the union men and this would bring his knowledge of the
union activity back to' April 29, the very date of
Fabbiani's discharge "
Furthermore, Reingold testified that, after Bucky told
him about the 'organizational activity and about the same
time as the visit from the union officials, he noticed that
there was "buzzing around the place," that small groups
were forming and that, unlike their previous practice, four
or five would sit together when having their coffee, they
would walk over to each other and there were groups
sitting together and laughing. From this, Reingold
testified, he "knew that something was going on" but he
"didn't know exactly what it was." It is not disputed that
the organizational activity had been going on at least since
April 24, which was 5 days before Fabbiani's discharge,
"Reingold's testimony , that he first learned of the union activity when
Bucky mentioned it to him "casually" and that Bucky "mentioned it again
and mentioned it again ," whereupon he said "well, we'll see what
happens," indicates a calmness and coolness which , on the basis of his
other actions and his demeanor in the courtroom , I cannot accept But
even if he did receive the news of union activity calmly, that would not
negate the possibility of his having moved promptly and firmly to put
obstacles in its way
"Remgold first testified that he learned of the organizational activity "a
day or two" after Fabbiani was discharged but later in his testimony he
said that it was not even "two or three days afterward" but "a later date "
In making a determination that Reingold was not a credible witness, I take
into consideration not only his obvious self - interest and his demeanor while
testifying , but also this self-contradiction and the obvious attempt at
deception in this latter testimony that he first learned of the organizational
activity at a date later than 2 or 3 days after Fabbiani's discharge, since
the hard fact is that the visit of the union business agents was on April 30,
only I day after Fabbiani s discharge
CHEF NATHAN SEZ EAT HERE, INC. 165
and there is nothing in the record which could account for
the sudden commencement of the "buzzing" which,
Reingold testified, he noticed precisely when he learned of
the union campaign and after Fabbiani's discharge, but
not earlier. From all of the factors, including the relatively
small size of the restaurant staff and Reingold's practice
of circulating throughout the restaurant at all times he
was on the premises, I conclude that Reingold, alerted by
the "buzzing," had learned of the organizational activity
before he ordered Fabbiani's discharge 20 Upon taking into
consideration Reingold's testimony that he had resolved
some time earlier to discharge Fabbiani because of his
poor performance with the machines as soon as he could
obtain a replacement, but that he did not have a
replacement when he discharged Fabbiani, and the other
factors discussed above'21 I reach the conclusion that
Respondent' s claims of misconduct by Fabbiani, even if
they had some foundation in fact, were not its real reasons
for discharging him but were merely pretexts, and that its
real reason was the discovery of his participation in the
organizational activity. Accordingly, I find that Fabbiani
was discriminatorily discharged to discourage membership
in and activity on behalf of the Union and that
Respondent thereby violated Section 8(a)(3) and (1) of the
Act.
6. The discharge of Estrada
Estaban Estrada was hired as second cook at Chef
Nathan on January 13 but he also worked as a relief man
at the counter, particularly to relieve Luis Leon at the
clam bar. He signed a union card about April 15, but
there is no evidence that any of management personnel
knew about it.
He did not report for work on Saturday or Sunday,
April 26 and 27, and he took his regular day off on
Monday, April 28. He reported as usual on Tuesday, the
29th, and worked that day but on the 30th, immediately
after he reported for work, Bucky called him to the office,
gave him the money then due him, and discharged him.
Estrada testified that he did not ask Bucky why he was
being discharged; that he waited to hear what Bucky had
to say but that nothing was said
According to Estrada, Bucky then asked him whether
he needed a ride back to New York; he said he did and
Bucky drove him to New York. Estrada testified that,
"The testimony of employees Estaban Estrada and Hector Melendez
that , on the day Fabb,ani was discharged , Gus told them that Fabbian had
been discharged because "the boss" believed he had brought in the Union,
was controverted by Gus' denial and by Reingold ' s testimony that he did
not make that statement to Gus . Both employees, however, testified
credibly , whereas Gus, it is to be noted , was promoted by Respondent,
after the events involved in this case , to a higher management job; he was
called as a witness by Respondent ; he testified more than a week after
Estaban and Melendez, and he appeared to be careful in his testimony to
safeguard his status as a management man Reingold , of course, was
strongly motivated by self- interest. Accordingly , upon the probabilities of
their testimony and their demeanor while testifying , I find that , even if Gus
did not convey to Reingold his actual knowledge of the organizational
activities and Fabb ►ani's part in them . Remgold had such knowledge before
he ordered Fabbiani discharged.
"In addition , I have taken into consideration Estrada 's undisputed
testimony , discussed below , that , in the conversation following his own
discharge , Bucky told him Fabbian had been discharged because he
brought in the Union and his further testimony that Reingold said, shortly
after the discharge of Fabbian , that if the employees chose to be
represented 6y the Union he would close up the restaurant for 2 months
Although Reingold denied making the statement attributed to him by
Estrada, I reject his denial and find that he made it.
after they had been driving along for about 5 minutes
Bucky asked him if he knew why he had been discharged;
he said he did not and wanted to know. Bucky then told
him that "the same thing that happened to you happened
to John Fabbiani"; that Fabbiani had brought the Union
in and that Estrada had signed a card and that was why
he was "suspended."
Estrada testified that Bucky then asked him whether
Fabbiani brought the Union in and he answered that he
had not; that Bucky thereupon asked him whether it was
Luis Leon who brought in the Union; and that Bucky
asked him the same question about each of the employees
in turn but Estrada in each case said that he didn't know.
Bucky then said, "I have all the union cards at my office
and one by one I am going to be getting rid of all of them
until I discharge all of them." He also said if the Union
formed a picket line he would get an injunction and have
the police break up the line, and if the employees persisted
in their allegiance to the Union, Reingold would close the
restaurant for 2 months so that everybody would have to
find jobs somewhere else. By this time, according to
Estrada, they had reached the George Washington Bridge
and Bucky closed the conversation by saying to him:
"You are a good man and I like the way you work. If this
reaches agreement, I will call you back because I need
you. The only error you made was that you signed for the
Union."
Respondent's position in this litigation concerning the
discharge of Estrada is that he was unsatisfactory in his
work habits, violating health regulations by failing to wear
a hat and by smoking in the kitchen. Reingold, in his
testimony, gave evidence on these claims and added that
Estrada had a sullen attitude toward customers and
toward his work. He also testified that Estrada had
demanded that he be paid a higher wage rate when he
worked as a relief man at the clam bar because the
regular man at the post was more highly paid, despite the
fact that the system of wage rates depended on the
worker, not on the specific job he was performing.
Reingold further testified that he had noticed, through
the payroll records, that Estrada was frequently absent
and that he understood that Estrada had not called in,
although all employees, when they were hired, were
instructed to call in before taking time off so that
replacements might be obtained. He testified that he had
never discussed the absenteeism problem with Estrada but
that, after learning that Estrada had taken off the
weekend of April 26 and 27 and considering Estrada's
"general attitude," he had instructed Bucky to discharge
him; that in all probability this instruction was given the
day prior to the date of the discharge.
Johnson, who also worked in the kitchen, testified that
Estrada did not wear his hat in the kitchen and that he
heard both Gus and the chef constantly reminding him to
put it on. Johnson also testified that a representative of
the Board of Health had been on the premises and had
instructed the employees that they must all wear hats;
that, after one single lapse, the chef always wore a hat but
that Estrada frequently went without his. Gus
corroborated this testimony by testifying that he had
frequently told Estrada to put on his hat, but he conceded
that other employees also failed to wear their hats and
that he was compelled to remind them constantly to do
so, but that he never discharged anyone for this reason.
The restaurant chef, Eddie Weisberger, testified that
Estrada was his assistant and was supposed to be at work
at 7 a.m., but that he frequently reported in at 10 or 10:30
a.m., and that two or three times a week he failed to show
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up altogether. He testified that, every week since they
started to work, he had remonstrated with Estrada about
his absenteeism and lateness in reporting; that he-had told
Estrada, many times, that if he failed to show up early in
the morning , when the heavy work was to be done, that
he, himself, would fire him and that he had told both Gus
and Bucky to take Estrada out of the kitchen or he would
quit.22 Weisberger also testified that when Estrada came in
to work on Tuesday he asked him why, after his long
absence, he showed up that morning, and that he told
Estrada that he did not need him.
Gus testified that a week or two earlier Estrada had
also stayed away on Sunday, which was the busiest day of
the week, the chef's day off, and the day on which it was
most difficult to obtain a replacement; but that on that
occasion Estrada had an excuse about his car. He also
testified that when Estrada did not come in on Sunday,
the 27th, he telephoned him at home and told him that if
he did not come in he should not come back to work
anymore
Respondent's effort, through Reingold's testimony, to
justify the discharge of Estrada by accusing him of several
types of misconduct in the performance of his duties bears
a resemblance to its tactics in connection with Fabbiani.
Reingold's complaint about his "sullen attitude" is
completely subjective; his indignation that Estrada wanted
to be paid a higher wage rate when filling in at an
admittedly more difficult job is unconvincing' and his
testimony concerning smoking by Estrada is not supported
by any other testimony. The testimony about Estrada's
refusal to wear a hat, however, was corroborated by Gus
and by fellow employees Johnson and Zarzuela and,
notwithstanding Gus' concessions that he had to keep
after other employees on this matter and that he had
never discharged an employee for failing to wear a hat, it
does appear that the wearing of hats was taken seriously
because of regulations posted by the local health
authorities.
The significant difference between the background of
Fabbiani's discharge and that of Estrada is in the
testimony concerning Estrada's absenteeism.37 Although
Reingold made the same broad attack on Estrada as he
did on Fabbiani, he did include substantial testimony
concerning Estrada's failure to report for work. While I
have been -skeptical of much of Reingold's testimony, in
this respect he was strongly corroborated by Zarzuela,
Gus, and, particularly, by Estrada's immediate superior,
Weisberger. Both Zarzuela and Weisberger impressed me
as credible witnesses and I accept Gus' testimony that he
threatened Estrada with discharge for his unannounced
absences on Sundays, the chef's day off. Accordingly,
despite my rejection of some of the reasons given by
Reingold for discharging Estrada, the chronic absenteeism
of this employee and Respondent's dissatisfaction with it
are sufficiently established by the record to preclude an
inference that this reason was a pretext and that
Respondent's real reason for its action was his protected
activity.2' It follows, therefore, that the General Counsel
has not sustained his burden of proving that Estrada was
discharged for protected activity and that this allegation
of the complaint must be dismissed.
"Benito Zarzuela , an employee who was called by Respondent and who
testified with difficulty but credibly , corroborated Weisberger's testimony
that he repeatedly argued with Estrada about his lateness and his absences
and that he threatened to fire Estrada himself , without the aid of "the
boss" .
"Also notable is the difference in their union activity : Estrada had done
no more than sign an authorization card but Fabbiani had been the most
7. Interference, restraint, and coercion prior to the
strike
Both Reingold's statement, immediately after the
discharge of Fabbiani, that if the employees chose to be
represented by the Union he would close the place for 2
months and Bucky's interrogation of Estrada, after he had
been discharged, concerning the instigators of union
activity, have been described above and found to have
occurred. When Estrada heard Reingold's threat, he was
still an employee and the statement clearly constituted
restraint and coercion violative of Section 8(a)(1) of the
Act. Although I have found that Estrada's discharge, on
the morning of the 30th, was not unlawful and it follows,
therefore, that he was not an employee at that time,
Bucky's interrogation of Estrada concerning the identities
of those active in the organizing campaign constitutes a
form of surveillance interfering with employees' rights
under the Act notwithstanding the possibility that they
might not have knowledge of it.Si However, the record
shows that Estrada was at or on the picket line on May 9
with his colleagues who were still employees and,
accordingly, the probability is very great that he told
employees of the interrogation and of Bucky's statement
that all the signed cards were in the office. Whether he did
or did not, however, Bucky's activity during the ride with
Estrada constituted a violation by Respondent of Section
8(a)(1) of the Act.
In addition to the foregoing, Benito Zarzuela, called as
a witness by Respondent, testified that, 3 or 4 days before
the strike on May 9, Bucky told him that everyone who
signed a union card would lose his job,2' and Luis Leon
testified, in response to a question from Respondent's
counsel and without contradiction, that 2 days after
Fabbiani was discharged, Bucky said that "all those that
signed the union cards had no more work at Chef
Nathan's and the union should get work for them." These
threats of reprisal for lawful exercise of the employees'
right to engage in organizational activities constitute
restraint and coercion by Respondent and violate Section
8(a)(1) of the Act.
8. The strike
On Wednesday , May 7, the Union set up a picket line
outside Respondent 's restaurant , consisting of John
active in soliciting such cards.
"I also discount Bucky's "admission" to Estrada that the reason for his
discharge was the same as that of Fabbiani , i e , adherence to the Union,
since it may have well been a ploy to introduce the subject so that he
might learn, from Estrada, the names of the other employees involved in
union activity.
"It is to be noted that , unlike restraint and coercion, employees whose
rights are subjected to interference may be entirely unaware of it This is
particularly true of surveillance , in which an essential element is secrecy
and which , if adroitly executed , is likely to remain unknown See N L R B
v. Grower-Shipper Vegetable Assn, 122 F.2d 368 (C.A 9); Grand-Central
Chrysler Inc, 155 NLRB 185, 188.
"On direct examination by Respondent 's counsel , Zarzuela answered
"no" to the question whether anyone had ever told him he would be fired
if he signed a union card However , when he was asked, on
cross-examination , whether he had ever discussed the Union with Bucky, it
was the witness who formulated the answer that Bucky said that
"everybody sign the card in the union going to be finished in the job"
Considering the difficulties that this witness had in formulating his
answers, even through an interpreter , and his effort to answer truthfully, I
am convinced that his own testimony , rather than a mere negative to a
leading question , more accurately reflects the incident and I find that
Bucky did make that threat.
CHEF NATHAN SEZ EAT HERE, INC. 167
Fabbiani and Business Agent Cassidy. The following day
they were joined by a member of the Union but on neither
day did any employee of Respondent pay attention to it.
On one occasion during these first 2 days, according to
Fabbiani, Bucky came over to him and said "Why don't
you give up? You know you are not going to win. This
man [has] money, he could close for 2 months and throw
the key away."
Early in the morning on May 9, however, when both
Fabbiani and Estrada were picketing, counter employees
Luis Leon, Hector Melendez, and William Melendez, two
busboys, and two kitchen helpers all refused to cross the
picket line but, instead, joined it, taking turns at the
actual picketing.
Later in the morning, while John Fabbiani's car,
containing Fabbiani, Hector Melendez, William
Melendez, Luis Leon, and the two busboys, was parked in
front of the restaurant next door, Bucky came over to
them and asked each of the employees, in turn, whether
he was coming in to work. Hector Melendez testified that,
when the question was put to him, he stated that he would
not cross the picket line, whereupon Bucky, addressing all
of them, answered "If you are not going to cross the
picket line, don't go back in the restaurant again because
you have no more work." Gus then came over and told
Bucky to "forget it" and to "call new people in." None of
the employees went to work but, about 1 p.m., Luis Leon
and William Melendez left and went back to New York
In the afternoon Bucky again came out to the striking
employees, but this time he addressed himself primarily to
the busboys. Since they did not understand English and
Bucky could not- speak much Spanish, he asked Hector
Melendez to interpret for him. According to Melendez,
Bucky said that the busboys could have their jobs back if
they would "forget about the union"; the busboys
answered that they would come in to the restaurant later
that evening and let him know whether they would come
back to work. Bucky left for a short time and then
returned; this time he talked to Fabbiani and said they
could all have their jobs back if they would forget about
the Union but none of the men went to work.
The events of the day, as set forth above, were
described in the testimony of Hector Melendez and John
Fabbiani, with Luis Leon's corroboration of the morning
statement by Bucky. Reingold admitted that he had told
Bucky to go outside and try to get the men back to work
and Bucky did not testify.27
Accordingly, I find the foregoing to be an accurate
account of the events described and that Respondent, in
violation of Section 8(a)(3) of the Act, discharged Luis
Leon, Hector Melendez, and William Melendez to
"The General Counsel presented his evidence on Monday and Tuesday,
July 28 and 29 . During those sessions Respondent's counsel advised that,
at some time during the trial , he would request a recess because Gus and
Bucky were vital witnesses and neither was then in the employ of
Respondent , that Gus could not appear except on a Friday, his day off at
his current employment , and that Bucky was out of town and not expected
to return until late Thursday , July 31 On July 24 the trial was recessed, at
the request of Respondent's counsel , until August 6, the Wednesday of the
following week , with the understanding that Respondent would present his
other witnesses , including Bucky, before Friday and Gus on Friday On the
following Wednesday , Respondent 's counsel stated that he had "some
difficulty with Bucky " but stated to the Trial Examiner "No, with respect
to the subpoena , I don't think we would request of you any assistance "
Under these circumstances , I do not draw any inference of fact from
Respondent 's failure to present the testimony of Bucky but it leaves
uncontroverted the testimony of the employees concerning their
conversations with Bucky. Since I have not found any of them not credible
as witnesses , I accept their version of the events.
discourage their membership in the Union.
About 5 o'clock that same afternoon, on ex parte
application of Respondent for an injunction against
conduct set forth in the petition, an order was issued out
of the Superior Court of the State of New Jersey. Neither
the order nor the method of its service on the Union is in
the record but Business Agent LaSpina described it as "a
court injunction restraining us from picketing" and he
discontinued the picketing.
9. Applications for reinstatement
According to LaSpina, the strikers decided to ask to go
back to work so he went into the restaurant with them:
Reingold was not there so he talked with Bucky, asking
him to get in touch with Reingold because the matter was
important, but Bucky claimed to have the authority to
handle it. Accordingly, LaSpina told Bucky that the men
had remained out because they had respected the Union's
picket line but that, since the picket line had been
removed, the men should be reinstated. Bucky, however,
said he couldn't do it at that time but that if they came
back "later," he would take back "who he felt he
wanted"" and indicated to the busboys that they could
return to work. In addition to the foregoing, Hector
Melendez testified that when they went back, Fabbiani,
addressing Bucky and Nusbaum, said they had come in to
find out when they were to return to work and that Bucky
answered "I don't want you. I only want the three
busboys."S9 The men then left.
On the following Tuesday, May 13, Hector Melendez,
William Melendez, and Luis Leon came out to the
restaurant and talked with Reingold. All three testified
that they asked Reingold to give them back their jobs and
both Hector Melendez and Leon testified that Reingold
asked them to return the following day when he would
give them their pay and tell them when to return to work.
While they were there Gus asked William Melendez when
he was coming back to work and he said he was there to
find out; Gus then addressed the same question to Hector
and then, addressing them both, Gus said: "You two will
be coming back to work because I want the two of you to
come back to work." Both Hector and William testified
to this conversation. William Melendez also testified that
Bucky passed by and Gus asked him whether Reingold
was going to reinstate the men; that Bucky countered by
asking Melendez whether there would be any more
"problems with the Union" and, when Melendez asked
"what kind of problems9" Bucky laughed and walked
away.
The men returned the following day. They sat down at
a table near the door and, after about 15 minutes,
Reingold came over to them; he handed them the money
to which they were entitled, took receipts from them, and
said: "Thank you. Good-bye."
"Gus testified that it was about 5 or 7 p in when the men came in and
asked for their jobs It was his impression that those present included
Fabbiani, the Melendez brothers , Estrada , and two busboys However,
William Melendez testified that he and Luis Leon left for New York about
I p m , and that he didn't know whether any of those on the picket line
went back to work after the strike was over . Accordingly, it is doubtful
whether William Melendez and Luis Leon personally applied for their jobs
immediately after the termination of the picketing LaSpma's application
on their behalf was nevertheless sufficient (See Wickland Oil Co, 161
NLRB 471, 483, N L R B v t Posner, Inc, 394 F 2d 773 (C.A 2) )
"Nusbaum , called by Respondent , was not questioned concerning this
exchange and I accept Melendez' testimony
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reingold's testimony concerning the events of these 2
days was considerably different. He admitted that on
Tuesday afternoon Luis Leon and the two Melendez
brothers came to the restaurant and that he talked with
them. He testified, however, that Hector Melendez, acting
as spokesman, said that he and the other two men wanted
their pay and that he replied that the payroll was not yet
ready but it would be ready on the following day He
insisted that that was the entire conversation and that
neither at that time nor on the following day did either of
the Melendez- brothers or Leon say anything about
wanting to come back to work Reingold also testified
that on May 13 he did not need anybody in the positions
that these men had filled and that their absence on Friday,
Saturday, and Sunday showed him that he could get along
with fewer employees. He did concede that after the
picketing on May 9 he did take back those of the
employees whom he had not been able to replace - four
porters and busboys.
Reingold's testimony, in my opinion, is rendered
incredible by certain testimony of Nusbaum and Gus.
Nusbaum testified that, on the Wednesday after the strike,
Hector Melendez asked him whether he could have his job
back and that he told Melendez it was Gus who did the
hiring, but Gus was not there that day because it was his
day off, and that Melendez said he would call Gus
Nusbaum further testified that Melendez made a
telephone call and spoke in Spanish; that he then got on
the telephone and found that Gus was on the other end of
the line. Gus told Nusbaum that Melendez had asked for
his job back and Gus instructed him, Nusbaum, to go to
the office and ask Reingold if he would take Melendez
back.3° Nusbaum testified that Reingold refused to take
Melendez back, but said that if he needed help he would
let him know and at this time he had enough; that he told
this to Gus and Gus asked him to put Melendez back on
the line. Gus corroborated, Nusbaum's testimony to the
extent that he testified that he had a telephone
conversation with Hector Melendez on a day some time
after the termination of Melendez' employment when he
was at home, and that Melendez requested that he ask
Reingold to give them back their jobs. Gus testified that
he called the office and told Reingold about Melendez'
request, saying that Reingold could take them back if he
wished Despite the slight discrepancy between the
testimony of Nusbaum and Gus concerning the mechanics
of the request to Reingold, it is quite clear that, at least at
the time of these conversations with him, Reingold knew
that the men wanted to return to work. Furthermore, the
nature of Reingold' s language , as reflected in their
testimony, compels an inference that he had previously
become aware of their effort to recover their jobs and an
acknowledgment of his refusal. Accordingly, on the basis
of the testimony of the discharged employees and these
two of Respondent' s managerial employees, I find that
Reingold's testimony that the men never asked for their
jobs back on either Tuesday or Wednesday cannot be
believed and I reject it. Accordingly, I find that on May
9, 13, and 14, William Melendez, Hector Melendez, and
Luis Leon requested reinstatement and that Respondent
refused to reinstate them. Since neither their strike nor
their unlawful discharge changed their status as employees
and, as set forth below, there is no substantial evidence
that they had been replaced, they were entitled to be
restored to their jobs upon their unconditional application
and Respondent's failure to do so violates Section 8(a)(3)
and (1) of the Act "
Fabbiani testified that, at a subsequent time, he visited
the restaurant and asked Reingold for his job, or any
other job, but that Reingold refused. Hector Melendez
also testified that he subsequently asked for his job or
asked that, at least, his brother be rehired but that on
each occasion he was rebuffed. Respondent's refusal to
rehire Fabbiani was a continuation of the unlawful
discrimination against him and a violation of Section
8(a)(3) and (1) of the Act
10. Respondent's defenses
With respect to the three employees who were
discharged during the strike and to whom reinstatement
was refused after the strike was over, Respondent appears
to assert several defenses," some addressed to these
employees as a group and some to them individually.
(a) Voluntary quit
Insofar as Respondent contends that these three
employees "quit" by failing to report for work on May 9,
such contention is frivolous. Section 2(3) of the Act,
defining the term "employee", provides that it
shall include any individual whose work has ceased as a
consequence of, or in connection with, any current labor
dispute or because of any unfair labor practice.. .
and it has been found, both, that their failure to report for
work on that day was in connection with the then current
dispute between Respondent and the Union over the
representation of Respondent's employees, and that their
discharge during the morning was an unfair labor practice
in violation of Section 8(a)(3) and (1) of the Act.
(b) Replacement
Although Respondent appears also to contend that
these employees had been replaced and made an effort to
prove, through the striking employees, that Bucky
informed them that they had been "replaced", the
evidence, I am convinced, supports my finding that Bucky
intended to, and did discharge them, and that their
discharge was unlawful. Accordingly, under the statutory
provision above quoted, even had Respondent gone
through the form of replacing them, it could not, as a
matter of law, cause them to lose their status as
employees. Moreover, the evidence shows, as a matter of
fact, that they had not been replaced.
According to Reingold's testimony, Respondent
regarded practically all the employees as unskilled and as
requiring little or no experience. Moreover, it appears that
most of the employees, although they did have customary
stations, were shifted from place to place as needed and
Reingold was emphatic in stating that wage rates were
"William Melendez testified that he asked Gus what Remgold meant
when he said "Good-bye" in that manner and Gus answered that it meant
that Remgold did not want them back Although it appears that it was his
brother Hector who actually talked with Gus it is not unlikely that
William regarded the conversation as a collective one Their puzzlement
over Reingold 's cryptic remark , however, accounts for Hector' s asking
Nusbaum whether they could have theirjobs back and their call to Gus
"N L R B v Mackay Radio & Telegraph Co , 304 US 333, 349, Z
and L Lumber Co, 179 NLRB No I I
"As stated above, Respondent ' s counsel waived oral summation in favor
of filing a brief and then declined to file one From his opening statement,
however, and the nature of the evidence presented on behalf of
Respondent , the defenses herein treated can be discerned
CHEF NATHAN SEZ EAT HERE, INC. 169
determined only by the personal ability of the employee to
perform in any station to which he might be assigned.
Finally, Reingold laid great stress on the fact that the
establishment was able to operate without serious
difficulty during the strike by shifting employees to places
in which they were needed. It follows, therefore, and I
find, that there were no specific positions involved in the
employment of these men.
William Melendez, whose customary station was at the
frankfurter counter, and Hector Melendez, whose
customary station was at the hamburger grill, testified
that, when they went into the restaurant on Tuesday, May
13, each of them saw, at his own station, one of the
part-time employees who had worked there prior to the
strike. Love- Johnson, who was called by Respondent,
testified that, after the strike, the clam bar was operated
by a "kid" who had been working there and who
"switched around", helping out wherever necessary. He
also testified that he "and anybody else who filled in"
operated the hamburger grill and that the frankfurter
counter was manned by "regular employees" who had
been there all along.
Despite Reingold's testimony that he discovered, during
the strike, that the restaurant could be operated with
fewer employees, his employment record shows that, for
the payroll week ending Friday, May 9, he terminated five
employees and hired five. Since there were only three
strikers terminated on May 9, the others must have been
terminated earlier in the week. The record does not show
when, during the week, the new employees were hired.
While it shows, during the week ending May 16, that .11
employees (not including Bucky) were terminated and only
6 hired, Respondent may actually have operated with
fewer employees that week " During the following week,
however, Respondent hired 15 employees and terminated
only 2, so that, at the end of the week ending May 23,
there were more employees than before the strike.
It follows, from the foregoing, that Respondent's hiring
record does not corroborate Reingold's testimony that
fewer employees were needed by Respondent after the
strike but it simply reflects a constant turnover in its
employees .14 Moreover, Respondent concededly advertised
for help almost continuously during the month of May,
after the strike, and into early June. Accordingly, I reject
Respondent's argument that it had either replaced these
employees or that it had an economic justification for
declining to reinstate them after the strike.
Moreover, even had these three men not been
unlawfully discharged and even if Respondent had proved
that they had been replaced, as strikers they nevertheless
retained their status as employees and, absent acceptance
of permanent employment," were entitled to reinstatement
as soon as vacancies occurred.31 As shown by
Respondent's records, six persons were hired during the
week ending May 16 and, therefore, these three men were
entitled, at the very least, to be reinstated at that time.
"Reingold conceded that the'number of employees hired and terminated
during the week did not truly represent the complement necessary to man
the establishment since the count was taken only at the turn of the week
and that a more accurate measure would have been the total "man-days"
for the week
"The record does show that, beginning several weeks later, there was a
'light reduction in the size of the staff, but Respondent nevertheless
continued to hire several employees each week
"There is no evidence that any of them had become permanently
employed elsewhere
ri
"Laidlaw Corp. 171 NLRB No. 175, enfd 414 F 2d 99 (C.A 7)
We turn , now, to the contentions of Respondent
directed personally against each of these three men. The
only substantial contention , however, is the one directed
against Luis Leon - that he voluntarily quit the day before
May 9 , and that his failure to report for work thereafter
was a personal decision rather than participation in
concerted activities . In support of this contention,
Reingold testified that , on May 8, Leon said he was
leaving because he had found a position in Coney Island,
near where he lived. Reingold conceded, however , that he
had responded by asking Leon to stay because there was
no one to replace him, or at least to give 2 weeks' notice
so that a replacement could be found ; and that Leon
answered that he would stay and would come to work the
next day. Respondent adduced evidence from other
witnesses that Leon talked a great deal about quitting:
Weisberger, the chef , said that Leon mentioned it several
times and that he had said to Leon : "If you don 't like it
why don ' t you quit," but Leon never told him that he had
quit or that he had given notice that he was going to quit.
Zarzuela also testified that, about a week before the
strike, Leon said he intended to quit and go to work in
Coney Island, and said that he had told Reingold about it
Similarly, Sanford Nusbaum testified that Leon had said
he was going to quit but had never' said when. Gus
confirmed Reingold 's testimony that Leon said he was
going to quit but testified that he thereupon suggested to
Reingold that he, Reingold , talk to Leon because Leon
was the only one who could run the clam bar; Gus
testified that he saw Reingold talk to Leon and that
Reingold came back to him and said that Leon had
promised to come back to work the following day.
Leon's own testimony on the subject was the same: that
both a week before the strike and a day or two before the
strike he had told Reingold that he was going to quit. He
testified that he gave as his reason the fact that he could
never get enough time for lunch. He testified that
Reingold promised to get him some help, that for that
reason he agreed to continue working for Respondent and
that he told Reingold that he would not leave.
It is quite clear from all of the foregoing testimony that
Leon, for one reason or another , had not only thought of
quitting , but had told several people of his intention It is
also clear , however, that on May 8 Reingold successfully
persuaded Leon to continue to work and that Leon did
come to the restaurant to work the next day, but engaged
in concerted activities until the time of his discharge.
Accordingly , I reject as unfounded Respondent's
contention that Luis Leon quit his job and find, instead,
that he was both discriminatorily discharged and refused
reinstatement in violation of Section 8(a)(3) and ( 1) of the
Act.
All of the testimony with respect to Hector Melendez
deals with an incident long before the strike . It appears
that when the restaurant changed its method of cooking
hamburgers from grilling them on a solid steel plate to
broiling them on an open charcoal grill, Melendez found
his working conditions too hot . There followed
considerable discussion between Melendez and Gus on this
subject , after which Melendez took a 2-week vacation
saying that when he came back he would work at the
frankfurter grill. He did return and thereafter he worked
the frankfurter grill. Nothing further occurred with respect
to Melendez except that Gus testified that , on May 8,
Melendez expressed concern about the picketing and said
that if, when he came to work in the morning, he saw
"any trouble" he would go back home and would not
work . It appears , however, that when Melendez came to
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the restaurant the next morning he changed his mind and
did not go home but he engaged in concerted activities
with his coworkers until he was discharged during the
morning It also appears without dispute that he came
into the restaurant that evening and talked with Bucky,
and that he returned on the following Tuesday and
Wednesday. It has been found that on these occasions he
sought reinstatement. Respondent's contention that it was
justified in refusing to reinstate Melendez because he
failed to report to work on May 10, 11, and 12 must be
rejected since I have found that he and the other two were
discharged for engaging in concerted activities and that
their requests for reinstatement on May 9, 12, and 13
were refused.
With respect to William Melendez, the only relevant
testimony was that of Gus, who testified that a day or two
before the strike Melendez was angry about something
but, in their conversation, he asked permission to leave at
5 o'clock that day so that he could keep a date with his
girl. Melendez said that under those circumstances he
would come back the next day but not otherwise. Gus
testified that he let Melendez go some time between 6 and
6:30 p.m and Melendez promised to come back. Reingold
testified that, also the day before the strike, Melendez said
he didn't want to get involved with the picket line and
Reingold said he could continue working. William
Melendez came to the restaurant the following day, joined
in the concerted activity, and was discharged by Bucky
during the morning on May 9. Although he did not
personally apply for reinstatement on the evening of May
9, adequate application was made on his behalf, and he
returned to the restaurant on May 12 and 13 to ask for
his job, at which time he was denied reinstatement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
indicate its determination to interfere aggressively with its
employees ' rights of self-organization , I shall recommend
that the Respondent cease and desist , in any manner,
from infringing upon rights guaranteed its employees by
Section 7 of the Act."
Upon the foregoing findings of fact and the entire
record in this case , I reach the following:
CONCLUSIONS OF LAW
1. Chef Nathan Sez Eat Here, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.,
2. Local 50, American Bakery & Confectionary
Workers Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By threatening employees with loss of their jobs and
by threatening to close its place of business if the
employees chose to be represented by the said labor
organization ; and by engaging in surveillance of its
employees' self-organizational activities, Respondent has
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed in the Act and has thereby
violated Section 8(a)(1) thereof.
4. By discharging John Fabbiani on April 29, and
thereafter refusing to reinstate him, Respondent has
discriminated against him to discourage his membership in
the said labor organization and has thereby violated
Section 8(a)(3) of the Act.
5. By discharging Luis Leon, Hector Melendez, and
William Melendez on May 9 for engaging in concerted
activities in support of the aforesaid Union and thereafter
refusing to reinstate them for the same reason Respondent
discriminated against them to discourage their
membership in the said Union and thereby violated
Section 8(a)(3) of the Act.
6. By the aforesaid unfair labor practices, Respondent
has interfered with, restrained, and coerced said employees
in their exercise of rights guaranteed them in the Act and
has thereby violated Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
8. The allegation of the complaint that Respondent
discriminated against Estaban Estrada has not been
sustained.
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action to effectuate
the policies of the Act.
Having found that Respondent discharged John
Fabbiani, Luis Leon, Hector Melendez, and William
Melendez in violation of Section 8(a)(3) and (1) of the Act
and that it failed to reinstate them upon their
unconditional application therefor, I will recommend that
Respondent offer to each of them immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make each of them whole for
any loss of earnings he may have suffered as a result of
the discrimination against him , said loss to be computed
in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289, and with interest
thereon as prescribed in Isis Plumbing & Heating Co ,
138 NLRB 716.
In view of the nature of the unfair labor practices found
herein to have been committed by Respondent, which
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in this case,
it is recommended that Chef Nathan Sez Eat Here, Inc ,
of Hackensack , New Jersey, its officers , agents,
successors, and assigns , shall:
1. Cease and desist from.
(a) Threatening employees with discharge or with the
closing of their place of employment for becoming
members of or engaging in activities on behalf of Local
50, American Bakery and Confectionary Workers Union,
AFL-CIO , or any other labor organization; or for
exercising their rights of concerted action for mutual aid
or protection guaranteed in Section 7 of the National
Labor Relations Act, as amended.
(b) Engaging in surveillance of its employees ' concerted
activities for mutual aid or protection.
"N L R B v Entwistle Mfg Co, 120 F.2d 532 (C A 4).
CHEF NATHAN SEZ EAT HERE, INC.
(c) Discriminatorily discharging and refusing to
reinstate employees to discourage their membership in, or
activities on behalf of , the said labor organization, or any
other labor organization.
(d) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their right to
self-organization ; to form labor organizations ; to join or
assist Local 50, American Bakery & Confectionary
Workers Union , AFL-CIO , or any other labor
organization ; to engage in concerted activities for the
purpose of collective bargaining and other mutual aid or
protection , or to refrain from any and all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment, as authorized by Section
8(a)(3) of the National Labor Relations Act, as amended
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to John Fabbiani immediate and full
reinstatement to his former position , or to a position
substantially equivalent to that which he held immediately
prior to April 29, 1969 , without prejudice to his seniority
and other privileges ; offer to Luis Leon , Hector Melendez,
and William Melendez immediate and full reinstatement
to their former positions , or to positions substantially
equivalent to those which they held immediately prior to
May 9 ,- 1969, without prejudice to their seniority and
other rights and privileges ; and make each of them whole
for any loss of wages in the manner set forth in the
section of the Decision entitled "The Remedy."
(b) Notify John Fabbiani , Luis Leon , Hector Melendez,
and William Melendez if presently serving in the Armed
Forces of the United States of their right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended , after discharge from the
Armed Forces.
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records,
timecards , personnel records and reports , and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its restaurant in Hackensack, New Jersey,
copies of the attached notice marked "Appendix."'"
Copies of said notice , on forms provided by the Regional
Director for Region 22, after being duly signed by its
representative , shall be posted by it immediately upon
receipt theroof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material
(e) Notify the Regional Director for Region 22, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
"In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
171
It is further recommended that the allegations of the
complaint, insofar as not found violative of the Act in the
Decision, be dismissed.
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 22 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
The trial which was held in Newark, New Jersey, on
July 28 and 29 and August 6 and 7, 1969, at which all
parties participated and had a chance to give evidence, has
resulted in a Decision that we violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended,
1. By threatening to discharge employees or to close
down this place of business if the employees chose a
union to represent them.
2. By asking questions to find out who had been
active in bringing a union into the place.
3. By discharging John Fabbiani on April 29, 1969,
and refusing to reinstate him because he joined Local
50, American Bakery & Confectionary Workers Union,
AFL-CIO, and had asked other employees to join.
4. By discharging Luis Leon, Hector Melendez, and
William Melendez on May 9, 1969, because they
refused to cross the picket line of the Union, and by
refusing to put them back to work when they asked to
go back to work after the end of the strike.
The Board ordered us to promise our employees that
we will not do these things again, and that we will not, in
any other way, interfere with, restrain, or coerce them in
the exercise of their rights, under Section 7 of the
National Labor Relations Act, to:
1. Organize themselves into a union;
2. Form, join, or help unions;
3. Bargain as ,- a group through a union
representative of their choice;
4. Act together for collective bargaining or for
mutual aid and protection,
5. Refuse to do any or all of the above, unless
required by a valid contract providing for union
membership in accordance with law.
We therefore promise that:
1. WE WILL NOT question any of our employees
about their union activities, their support for a union,
or the union activities of other employees.
2. WE WILL NOT threaten to close down this place of
business or threaten to discharge any of our employees
for leading or participating in a move to secure union
representation for the purpose of bargaining collectively
with us for improvements in their wages, hours, and
working conditions.
3. WE WILL offer to give back their jobs to John
Fabbiani, Luis Leon, Hector Melendez, and William
Melendez and WE WILL make up any losses in pay or
other benefits they have suffered since we discharged
them, with interest at 6 percent.
4. WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amended , after discharge from the Armed Forces.
5. WE WILL NOT interfere with , coerce, or restrain
any of our employees in their exercise of their Section 7
rights as set out above.
CHEF NATHAN SEZ EAT
HERE, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
Federal Building, 16th Floor, 970 Broad Street, Newark,
New Jersey 07102 , Telephone 201-645-2100.