Chippy's of Florida, Inc.

National Labor Relations Board - Board Decisions

Oct 5, 1970

185 N.L.R.B. 867 (N.L.R.B. 1970)

CHIPPY'S OF FLORIDA, INC.
Chippy's of Florida , Inc. and Club, Restaurant
Employees and Bartenders ' Union, Local No. 133,
AFL-CIO and Henry Johnson
Chippy's of Florida, Inc. and Club, Restaurant
Employees & Bartenders ' Union , Local No. 133,
AFL-CIO, Petitioner . Cases 12-CA-4647-1, 12-
CA-4647-3, and 12-RC-3410
October 5, 1970
DECISION , ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 28, 1970, Trial Examiner Phil Saunders
issued his Decision in the above-entitled proceeding,
finding that the 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 the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision together with a 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 rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and briefs, and
the entire record in this case, and hereby adopts
the findings,' conclusions, and recommendations of
the Trial Examiner.
867
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner, as herein modi-
fied, and orders that the Respondent, Chippy's of
Florida, Inc., Coral Gables, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order,
as modified below:
1. Delete paragraph 1(c) and substitute the follow-
ing:
"(c) Directing employees not to vote in the
election or threatening them for doing so."
2. Delete paragraph 2(a) and substitute the follow-
ing:
"(a) Offer Sally Schultz and Henry Johnson
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
them whole for loss of earnings resulting from
the Company's discrimination against them in
the manner set forth in the section above-entitled
"The Remedy."
3. Add the following as paragraph 2(b) and reletter
the succeeding paragraphs accordingly:
"(b) Notify Sally Schultz and Henry Johnson if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act
and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces."
4. Substitute the attached Appendix for the Trial
Examiner's.
IT IS HEREBY ORDERED that the election conducted
in Case 12-RC-3410 be, and it hereby is, set aside,
and that Case 12-RC-3410 be, and it hereby is,
severed from Cases 12-CA-4647-1 and 12-CA-4647-
3 and remanded to the Regional Director for Region
12 for the conduct of a second election.
[Direction of Second Election3 omitted from publi-
cation.]
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
' The Respondent has requested oral argument This request is hereby
denied as the record, the exceptions , and the brief adequately present
the issues and the positions of the parties
' These findings and conclusions are based , in part, upon credibility
determinations of the Trial Examiner , to which the Respondent has
excepted Having carefully reviewed the record , we conclude that the
Trial Examiner 's credibility findings are not contrary to the clear prepon-
derance of all the relevant evidence Accordingly , we find no basis
for disturbing those findings Standard Dry Wall Products, Inc., 91 NLRB
544, enfd. 188 F.2d 362 (C A 2).
' In order to assure that all eligible voters may have the opportunity
to be informed of the issues in the exercise of their statutory right
to vote, all parties to the election should have access to a list of voters
and their addresses which may be used to communicate with them
Excelsior Underwear Inc, 156 NLRB 1236, N.LR.B v Wyman-Gordon
Company, 394 U.S 759, Accordingly, it is hereby directed that an
election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
for Region 12 within 7 days after the date of issuance of the Notice
of Second Election by the Regional Director The Regional Director
shall make the list available to all parties to the election. No extension
of time to file this list shall be granted by the Regional Director except
in extraordinary circumstances Failure to comply with this requirement
shall be grounds for setting aside the election whenever proper objections
are filed
185 NLRB No. 124
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An agency of the United States Government
WE WILL NOT discourage membership in Club,
Restaurant Employees and Bartenders' Union,
Local No. 133, AFL-CIO, or any other union
by discharging or by otherwise discriminating
against any employees because of their union
activities.
WE WILL NOT interrogate employees concern-
ing their union desires, activities, memberships,
and sympathies.
WE WILL NOT threaten employees with pay
reprisals and discharge as a consequence of their
activity on behalf of the Union.
WE WILL NOT tell or instruct employees not
to vote in the union election or threaten them
for doing so.
WE WILL NOT promise rewards to employees
for not voting or not supporting the Union.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the exercise
of the right to join or not to join a union and
to engage in union or concerted activities.
WE WILL offer Sally Schultz and Henry John-
son immediate and full reinstatement to their
former jobs or, if those jobs no longer exist,
to substantially equivalent positions with back-
pay.
WE WILL notify Sally Schultz and Henry John-
son, if presently serving in the Armed Forces
of the United States of their right to full reinstate-
ment, upon application, in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after dis-
charge from the Armed Forces.
All our employees ' are free to become or remain,
or to refrain from becoming or remaining, members
of the above-named Union or any other labor organiza-
tion.
CHIPPY'S OFFLORIDA, 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, Room 706, Federal Office Building, 500 Zack
Street, Tampa, Florida, 33602, Telephone 813-228-
7227.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS,Trial Examiner This proceeding under
Section 10(b) of the National Labor Relations Act, as
amended, was heard in Miami, Florida, on January 27
and 28, 1970,1 based on a charge filed by the Union
in Case 12-CA-4647-1 on September 29, and on a charge
filed in Case 12-CA-4647-3 by Henry Johnson on Novem-
ber 7
The questions raised by the complaint are whether
Respondent discriminatorily discharged Sally Schultz and
Henry Johnson, and whether Respondent engaged in unlaw-
ful interrogations, threats, promises, and surveillance. The
parties presented oral argument and the Respondent filed
a brief.
Upon the entire record in the case and from my observa-
tion of witnesses, I hereby make the following:'
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Florida corporation, is engaged in
the operation of a retail restaurant and pantry shop in
Coral Gables, Florida In the course and conduct of its
business operations within the past 12 months, Respondent's
gross volume of business exceeded $500,000 and during
said period of time it purchased in excess of $11,000 worth
of goods and materials directly from points outside the
State of Florida.
Respondent is, as it admits, an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union named in caption of this Decision is a labor
organization under the Act.
III. THE UNFAIR LABOR PRACTICES
The Union's organizational campaign at the Respondent's
restaurant started around the middle of September, and
on November 3 the Board conducted a consent election
in which the Union failed to receive a majority of the
All dates are 1969 unless specifically stated otherwise
All credibility resolutions made herein are based on a composite
evaluation of the demeanor of the witnesses and the probabilities of
the evidence as a whole
CHIPPY'S OF FLORIDA, INC.
eligible voters.' On November 10, the Union filed objections
to the Election and on December 17 the Regional Director
issued his Report. The Regional Director found that since
the allegations involved in the Objections were also for
the most part encompassed in the Unfair Labor Practic
Charges in Case 12-CA-4647-1 and Case 12-CA-4647-
3, it was concluded that the issues be consolidated for
hearing in the foregoing cases
The General Counsel introduced credited testimony
through Sally Schultz to the effect that on or about Septem-
ber 18, Respondent's night manager and supervisor, Stanley
Grusky, asked her, "Sal, what is this I hear about the
Union trying to get in here again9" Grusky then went
to tell Schultz the Union would never organize employees
of the Respondent until he said so, and that if he ever
heard of Schultz talking to any employee about the Union
she would "be out the front door." Grusky also told
Schultz, "I could have fired you last year after the election,
but I didn't. Sal, just remember one God damned thing,
what I say goes That's it, that's all I have to say "'
Henry Johnson gave credited testimony to the effect
that on or about October 20 or 21-the Respondent's
president, Isadore Diamond, told him "that there wasn't
no Union going to come in there and for me not to
vote for the Union, that he would take care of me if
I would stick with him " A week or so later Johnson
had another conversation with Diamond and as to what
was said testified as follows- "Well, he [Diamond] come
to me and told me there wasn't no Union coming in
there and that Monday was my regular day off, and for
me to not show up voting for the Union After Monday
there would be some head cutting around there, but I
didn't have to worry, I will still be there." Johnson stated
that on Monday, November 3, he came into vote, and
again Diamond told him he did not have to vote for
the Union and promised Johnson that he would be taken
care of.'
The General Counsel also introduced credited testimony
through Charles Beckerman to the effect that on two occa-
sions in late October, Diamond inquired of him why he
needed a union and in early November, Manager Grusky
had asked him what he was going to do the next day
and when Beckerman replied he would be coming to work-
Grusky told him, "Don't come, stay where you belong."
The testimony by employee Agnes Bobbin established
that some picketing activity had taken place at Respondent's
restaurant between October 1 and October 8, and at certain
times during this period she had been one of the partici-
pants.' On or about October 4, Grusky inquired of Bobbin
as to why she was not on the picket line with her "buddie,"
The appropriate unit is.
All employees employed at Employer's Coral Gables, Florida restau-
rant and pantry shop, excluding all professional employees , guards,
and supervisors as defined in the Act
Grusky denied ever having any conversation with Schultz as to
her union activity
'Diamond stated he never talked to Johnson about the Union
Bobbin stated she was active on the picket line because in her
opinion the Respondent was guilty of an injustice when they discharged
Sally Schultz
869
told her she was nothing but a "stupid bitch," and after
using more vile language informed Bobbin that if she did
not like it at the restaurant to "get the hell out." Bobbin
then asked Grusky if she was being discharged and he
replied,"No, if you weren't such a good God damned
worker, we wouldn't keep you " Later Grusky told Bobbin
he was sorry about the language he had used, but then
told her if she went on the picket line again-"you are
going to be sorry " On the day of the election-November
3-Grusky once more used vile language in the presence
of Bobbin and also again told her to "get the hell out"'
On or about October 13 Diamond told Bobbin to keep
her "god damn trap shut and don't be talking about the
Union "
On or about October 12, Diamond asked Stanley Berry
if he was going to join the Union, inquired what he saw
in the Union, and then told him that even if the Union
did organize the restaurant, Berry would get no increase
in wages 8
The testimony by Dorothy Ray established that in early
October Grusky asked if anyone had approached her about
the Union and if so to tell them she was not interested,
and then told Ray not to vote for the Union. The day
before the election Grusky informed Ray she could have
Monday, November 3rd off (normally Ray had Wednesdays
and Thursdays off), and if she was seen at the restaurant
or in the vicinity on Monday she would be fired or Grusky
would make things so miserable for Ray she would quit
Grusky also told her there were employees that "he didn't
like and couldn't stand or stomach any longer and that
when the election for the Union was over that these people
would be fired."'
The foregoing instances and statements attributed to the
Respondent, are not instances of objective inquiry as to
the propriety of recognizing a labor organization, and neither
do they amount to the exercise of free speech under Section
8(e) of the Act. Rather they include the following: Attempts
to inquire into sympathies and desires by asking employees
what they saw in a union and why they needed one,
interrogations about participating on the picket line, asking
if employees were going to join the Union and if anyone
had asked them to do so, on numerous and various occasions
threatening to terminate employees because of their union
activities, threatening no pay raises even if the Union were
successful, telling employees they did not need a union
then directing them not to vote in the November 3 election,
and promising rewards to employees if they did not vote.
The above constitute violations of 8(a)(1) and I so find 10
This is especially true where the above statements attributed
to the Respondent were made to employees during the
' Grusky ventured in his testimony that he never threatened Bobbin
or used vile language in his conversations with her, but admitted that
he did inquire how she could picket during the day and then work
on the night shift According to Grusky this was the total extent of
his inquiry and remarks
Diamond flatly denied ever talking to Berry about his union activity
Grusky denied all the statements attributed to him by Ray, but admitted
he did talk to her on November 2 and on this occasion gave her the next day
off on,the basis she was a fairly new waitress
10 The 8(a)(1) allegations not specifically found violative are hereby
dismissed
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insecure period shortly prior to the election. For the most
part the Respondent takes the position that its agents
said nothing to employees about their union activity, as
indicated previously herein. From my observation of man-
agement's witnesses while testifying, I have specifically
rejected their testimony and contention in this respect
From the record as a whole and on demeanor of witnesses-
it is readily noticeable that management speaks frequently,
clearly, and without any restraints or hesitations to the
employees about their union activities To find otherwise
would completely ignore the overwhelming evidence in
this record
Sally Schultz was hired as a waitress by Grusky in
early 1968, and was discharged on September 25, 1969.
The Respondent contends that Schultz was terminated
because management received too many complaints about
her services as a waitress, and the rude manner in which
she spoke to customers.
Schultz was an observer in the 1968 election, and in
early September 1969, contacted the Union and thereby
set in motion the organizational activities here in question.
Schultz was given Union authorization cards and was suc-
cessful in getting several cards signed and also signed one
herself. Schultz testified that Diamond and Grusky never
spoke to her about any customer complaints, but admitted
that Respondent's Vice President Sadie Solomon, did so
on three occasions when Schultz was first employed and
then on a fourth occasion about 3 months prior to her
September 25 discharge. Schultz stated that the night host
at the restaurant, David Allison, once mentioned a complaint
to her. A week or so after her discharge, Schultz also
talked with cashier Ann Evans and inquired how many
complaints Evans had received as to her service. Evans
replied that when Schultz was initially hired she had received
customer complaints on her, but had not had any "in
a long time." Evans testified that she could not recall
the last time a customer had complained about Schultz.
Agnes Bobbin testified Grusky had made the remark
that Schultz was "nothing but a trouble maker, she tried
to get the Union in last year, or something like that,
and that he didn't have to have her or anybody." On
cross-examination Bobbin stated she heard Solomon tell
Allison that Schultz had been fired because of customer
complaints, but then related that she had never heard
a customer complain about Schultz. Dorothy Ray also
testified she had never noticed or seen any customers com-
plain about Schultz, and that no other waitress mentioned
any customer complaints about her
The Respondent solicited testimony through several wit-
nesses to the effect that they had complained to management
about Schultz. Jerry Bohne testified he was a student and
worked part time as an undercover security detective in
a store, and had been a regular customer at the restaurant
during the month of September and also prior thereto.
Bohne stated that when he would come in to the restaurant
with other people, Schultz was always rude to everyone
including himself, and he tended to avoid sitting at her
station. Bohne stated further as follows:
Well, the only thing I can say, I know a little
bit about the restaurant business since my brother
had worked in a restaurant and the only thing I
can say, I have been a bus boy before and she seemed
to have the most nonchalant rude attitude towards
everybody. I mean, never a hello or thank you and
many times I refused to leave a tip
Bohne further testified that prior to May and June he
"tolerated" the service Schultz gave him and did not make
any complaints about her, but in late May or early June
he reported to a lady at the cash register that he did
not want to be seated in her area. Bohne stated that
a week or so later he was at her station and again her
service and attitude was poor, and this time he reported
his complaint to Sadie Solomon He then ventured that
during the summer of 1969, he complained of Schultz
to someone in management about once a week, and testified
that in late August and again early September her services
were "terrible" so he complained to Diamond.
The Respondent then produced Murray Cohen-a
student at the University of Miami He specifically related
one occasion, which was either the last couple of days in
August or the first couple of days in September, when
Schultz waited on him and he ordered cheese and lox on a
bagel, and asked that the bagel not be toasted. Cohen stated
the bagel arrived not only toasted, but burned to a point
where he could not eat it and Schultz then refused to take it
back to the kitchen so on the way out he complained to the
cashier He further testified that on other occasions during
the summer of 1969, he had asked for one of the relish
dishes but Schultz would not bring it, and stated there were
a number of similar instances so he finally decided to sit
elsewhere in the restaurant.
Roy Katon testified that for several years he had been
a regular customer and went into Respondent's restaurant
2 or 3 times a week. He related that on January 25,
he and his family had Schultz as their waitress and that
she was "annoyed" with them, that she "radiated a frustra-
tion," took the order wrong, and then raised her voice.
Katon stated he complained to Grusky, but on a subsequent
occasion he received the same treatment and this time
spoke to the owner about it.
Geri Beals works as a waitress for Respondent and
in her testimony stated that Schultz has a short temper,
was continually rude and outspoken, on occasions would
tell customers they would have to wait, and customers
did not want Schultz to wait on them and complained
to "everyone," that new waitress would not continue work-
ing in the restaurant as Schultz would "scare them to
death" and would "holler" at them." Beals related that
she was present when customer complaints about Schultz
were made to Grusky, Diamond, and Solomon. She was
then asked the question as to the time when all of this
happened and Beals replied, "I would say around the
month of July because I was getting very, very depressed
because a lot of us was going on vacation, and I can
say for sure a couple of weeks before she went on her
vacation she was getting worse and worse and worse all
the time. . "
" There are some indications in this record that Schultz would help
in the training of newly hired waitresses
CHIPPY'S OF FLORIDA, INC
The Respondent's night host David Allison stated the
following.
I can state that on several occasions within a few
weeks prior to her termination that I had customers
call me to the station upon which she was the waitress
and ask me why they couldn't get certain particular
things they they had asked for and asked my why
this waitress was trying to do them a favor They
said, "We feel as though we have done something
wrong. We feel that she throws the food at us in
such a way that if this is the best service we can
get, we will never come back in here again."
We got several complaints like that.
Allison stated he reported some of these complaints to
Grusky, and told Schultz not to raise her voice in front of
customers. He also testified that the restaurant had many
customers who asked not to be seated in the area being
served by Schultz, and Jerry Bohne was noe of them;
testified that complaints on Schultz would average one or
two a month, and that on the third or fourth night on his job
in May 1968 he received his initial complaint on Schultz.
Allison further stated that "more than once" he had to
move customers after he had seated them at Schultz'
station, and that most of the steady customers preferred not
to be served by her, and he was aware of this from
experience the first few days he was on his job. He testified
that complaints on Schultz became "aggravated"
immediately prior to the time of her discharge.
Night Manager Grusky stated that Schultz was terminated
because of too many complaints, and testified as to the
type of customer complaints as follows.
Well, the way she spoke to them, that was the
biggest one, and she would take the food and throw
it on the table and if people wanted something a
lot of times she would walk away, she would raise
her voice.
Grusky further related that he had warned Schultz about
the complaints on her service, and remembered receiving
complaints from Jerry Bohne and also a complaint from
Cohen and Katon. He testified that cashier Ann Evans
told him about complaints on Schultz and did so on a
"couple of dozen" occasions and the first time would be
3 or 4 months after Schultz started working at the restaurant,
and at this time Diamond and Solomon had also relayed
complaints to him. Grusky further stated that generally
the complaints on Schultz would be about one a week,
but in her last 3 months of employment the complaints
increased to about three or four a week
Sadie Solomon stated she had also received customer
complaints concerning Schultz, and in such respects testified
as follows:
I can say all through the time, practically, shortly
after she had been employed, all through the time
I have had consistent complaints about Sally Schultz
as far as her service, her attitude, her manner, her
sharp, caustic, slick tongue of which I have told her
on numerous occasions that her slick sharp tongue
will get her into trouble, indicating her job was at
stake.
871
Solomon agreed that the complaints were "pretty constant,"
and stated the only reason Schultz was kept on was because
they were short of help. Solomon further testified that
she and Diamond had discussed Schultz' discharge "many"
times over "many" months, and they even did so 3 or
4 months after her employment
Diamond was asked about the impelling factor that caused
him to terminate Schultz, and he replied, that while he
needed her help "very bad" he was losing customers so
instructed Grusky to discharge her.
I have set forth in some detail the testimony by witnesses
for the Respondent, as aforestated, because it appears to
me their own statements, when put together and evaluated,
fairly well establishes, in itself, a discriminatory discharge.
Several of the witnesses for the Respondent stated that
they started receiving complaints about Schultz shortly
after she was hired and averaged about one complaint
a week She was accused of being extremely rude, driving
customers away, slapping or throwing food on the tables,
refusing to take back burned food, taking wrong orders,
customers refusing to be seated at her station, raising her
voice, being short tempered, driving out new waitresses,
hollering at the other help, and in addition to many other
deficiencies also having a sharp and caustic tongue It
appears extremely unlikely to me that with such severe
shortcomings or limitations as attributed to Schultz from
almost the start of her employment, any waitress, regardless
of the help situation, could or would have been retained
and especially so over an extended period of almost 2
years. It is readily admitted that there were some complaints
about Schultz, as there were on all the other waitresses,
but it is totally preposterous that these complaints had
reached the magnitude as suggested by management.
The Respondent's defense as to Schultz also hinges on
testimony that complaints increased during the latter stages
of her employment. Bohne suggested in his testimony that
in late August and in early September, her service was
so "terrible" he complained to Diamond This record shows
that Schultz was on her paid vacation from the restaurant
during the last week in August and the first week in
September.12 The burnt bagel incident as relied upon by
Cohen, would have also occurred during the time Schultz
was on vacation Schultz could not remember ever waiting
on Cohen. The best thing Katon could do when asked
to be specific on Schultz-was to recall one situation 9
months prior to her discharge when it appeared she was
"annoyed" and "radiated a frustration." Since Katon went
into the restaurant 3 or 4 times a week-his recall of
only one specific incident against Schultz cannot be deemed
of any serious consequence. Likewise, from my observation
of the demeanor of Geri Beals while testifying-I must
reject her testimony. She displayed unusually high emotions
and distress on the witness stand, and also seemed to
attach considerable personal resentment and vindictiveness
because she was not included by Schultz and others, in
their union activity at the restaurant and conversations
relative thereto.
" Schultz stated that on one occasion during the summer Bohne
had a steak sandwich sent back to the kitchen, but had made no complaints
to her nor had she ever refused to serve him any item or food on
the few times she had waited on him
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence given by Ann Evans reveals that while
she had received some prior complaints on Schultz-the
last complaint had been approximately 3 months before
her discharge Other than self-serving statements by manage-
ment that complaints on Schultz had increased , as aforestat-
ed, there is no reliable independent proof that such was
the case Schultz had been active in a union campaign
the previous year, and when the 1969 organizational cam-
paign started she was again identified as a leading supporter
for the Union-there is no contention or argument, that
the Respondent lacked knowledge of her union activity-
and management then seized upon complaints as a pretext
for her discharge The evidence shows that Schultz was
never warned , and after working for almost 2 years was
fired suddenly and without any notice, and approximately
10 days after the start of the 1969 organizational campaign."
Henry Johnson started his work for the Respondent
as a short order cook during the latter part of June,
and was discharged on November 4 His work week was
scheduled from Tuesdays through Sundays and he would
be off each Monday Johnson admitted that during the
last week of his employment he was only on the job
about half of his scheduled work days and was not at
work on Saturday and Sunday-normally busy days at
the restaurant , and also admitted taking 6 or 7 Sundays
off prior thereto . He stated that when he did not come
in, he would always call the restaurant and let them know,
and get permission to be absent from Diamond or his
assistant On or about September 18 or 19, he signed
a union authorization card , and he voted at the election
on November 3.
Diamond testified that Johnson was discharged because
he did not report to work at the right times and because
he was absent on Saturdays and Sundays making it difficult
on his other cooks, and they then complained to him
about it. Diamond stated he never gave Johnson permission
to stay away from his job or to come in late, and he
talked to him several times about being absent.
This record and exhibits in it, shows that Johnson was
absent for approximately 13 or 14 days during his employ-
ment, and also absent during several weekends, as aforestat-
ed. If this record merely contained the above factual circum-
stances, there would be ample and sufficient grounds to
find a discharge for cause 14 However , upon consideration
of the fact that Johnson had been absent on numerous
occasions prior to the union election and organizational
efforts and he still continued to work , upon consideration
of the fact that in July he received $ 10 per week pay
increase , upon consideration of the fact that Diamond told
him on three occasions not to show up and vote for the
Union and then made certain specific threats and promises
if he did or did not, upon consideration of the fact that
Johnson did come in and vote at the Monday , November
3 election , and upon consideration of the admission by
" At the time of her discharge Grusky told her, "Well, I have to
let you go I don 't want to do this, but I have to let you go The
old man told me I had to let you go "
" It is well settled that the presence of valid grounds for an employee's
discharge does not legalize a dismissal which was nevertheless due to
a desire to discourage union activity
Diamond that he again talked with Johnson on the day
of the election-it becomes most obvious that the real
and actual motivation for Johnson 's discharge on the day
following the election-was because of his union activity.
This record as a whole presents abundant evidence clearly
revealing continual and open opposition by the Respondent
in its attempts to curtail the exercise of voting privileges.
Certain employees were asked not to vote , and threatened
with "head cutting" if they did so I find that Henry
Johnson was terminated on November 4, 1969, in violation
of Section 8(a)(3) and ( 1) of the Act.
As fully detailed earlier herein , I have found that the
Respondent committed certain violations of 8(a )( 1) and
thereby also finding merit to objections 1, 2, 3, 5, and
6 in 12-RC-3410 I find that these activities and the
discharge of Schultz , occurring as they did prior to the
election , were sufficient to taint the atmosphere so that
a free and fair election could not be held . I therefore
recommend that the results of the election in this matter
be set aside , and a new election be conducted at a time
to be determined by the Regional Director.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Company set forth in section III,
above, and there found to constitute unfair labor practices,
occurring in connection with the operations of the Company
as set forth in section I, above, have a close , intimate,
and substantial relation to trade, traffic , and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing such commerce and the free flow
thereof.
V. THE REMEDY
In view of the findings set forth above to the effect
that the Respondent has engaged in certain unfair labor
practices affecting commerce , I shall recommend that it
be required to cease and desist therefrom and take such
affirmative action as appears necessary and appropriate
to effectuate the policies and purposes of the Act, including
the offer of immediate and unconditional reinstatement,
with backpay computed in accordance with the remedial
relief policies set forth in F W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716, to Sally Schultz and Henry Johnson , and the posting
of an appropriate notice. I recommend that the results
of the election herein be set aside and the representation
case be severed and remanded to the Regional Director
for further proceedings.
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act.
CHIPPY'S OF FLORIDA, INC 873
3 By the statements and conduct set forth herein-
the Respondent has engaged in unfair labor practices defined
in Section 8(a)(1) of the Act.
4 By discharging employees Schultz and Johnson in
reprisal for their activities on behalf of the Union, the
Company has engaged in unfair labor practices defined
in Section 8(a)(3) of the Act.
5 The foregoing unfair labor practices affect commerce
within the purview of Section 2(6) and (7) of the Act.
6 The Respondent has engaged in conduct affecting
the results of the election herein , and the election should
be set aside
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclu-
sions of law and upon the entire record in this case,
it is recommended that the Company, its officers, agents,
successors, and assigns, shall-
1 Cease and desist from
(a) Coercively interrogating employees concerning their
desires, sympathies, and activities with respect to the Union
or any other labor organization,
(b) Threatening employees with pay reprisals and dis-
charge as a consequence of their activity on behalf of
the Union;
(c) Directing employees not to vote in the election,
(d) Promising rewards to employees if they did not
vote or did not support the Union,
(e) Discouraging membership in the Union or any other
labor organization by discharging or otherwise discriminat-
ing against employees with respect to hire or tenure of
employment or any term or condition of employment,
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to
self-organization, to form, join or assist labor organizations,
or to bargain collectively through representatives of their
own choosing and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid
or protection.
2 Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act;
(a) Offer Sally Schultz and Henry Johnson immediate
and unconditional reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniori-
ty or other rights and privileges, and make them whole
for loss of earnings resulting from the Company's discrimina-
tion against them in the manner set forth in the section
above entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary
to analyze the amount of backpay due.
(c) Post at its restaurant in Coral Gables, Florida, copies
of the notice attached hereto marked "Appendix."" Copies
of said notice on forms provided by the Regional Director
for Region 12, shall, after being duly signed by the Respond-
ent's authorized representative, be posted by the Respondent
immediately upon receipt thereof and maintained by it
for a period of 60 days thereafter in conspicuous places,
including all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any
other material
(d) Notify the Regional Director for Region 12, in writing,
within 20 days from the date of the receipt of this Decision,
what steps it has taken to comply herewith 16
It is finally recommended that the election be set aside,
and the proceedings in Case 12-RC-3410 be severed and
remanded to the Regional Director for further disposition
consistent with the findings herein
" In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations and Recommended Order
herein shall, as provided in Sec 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions and order,
and all objections thereto shall be deemed waived for all purposes
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 "
16 In the event that this Recommended Order be adopted by the
Board, this provision shall be modified to read "Notify said Regional
Director in writing within 10 days from the date of this Order what
steps the Respondent has taken to comply herewith