Club A And Larama Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1987

285 N.L.R.B. 521 (N.L.R.B. 1987)

CLUB A
Namer, Inc. d/b/a Club A and Larama Corporation
d/b/a Club A, Joint Employers and Hotel Em-
ployees and Restaurant Employees Union, Local
100 of New York, New York and Vicinity,
AFL-CIO. Case 2-CA-21452
31 August 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 8 January 1987 Administrative Law Judge
Raymond P. Green issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief; the Respondents each filed cross-ex-
ceptions and briefs in support of their cross-excep-
tions and in opposition to the General Counsel's ex-
ceptions; the General Counsel filed an answering
brief to the Respondents' cross-exceptions; and Re-
spondent Namer filed a brief in opposition to Re-
spondent Larama's cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
' The General Counsel and the Respondents have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
The judge found that Canteloube, although a supervisor for Respond-
ent Larama, did not act as an agent of Respondent Namer when on 14 or
15 December 1985 he allegedly informed employee Hatgidimitriou that
Namer intended to retain Hatgidimitriou's services In so concluding, the
judge relied on the fact that at that time Canteloube had been given a
termination notice and was aware that Namer did not intend to retain his
services when it assumed control of Club A on 1 January 1986 The Gen-
eral Counsel has excepted, contending, inter alia, that given the joint em-
ployer status of the Respondents, Canteloube's agency status as to
Larama should be imputed to Namer In light of our conclusion above
that Larama and Namer were not joint employers, we reject this conten-
tion of the General Counsel and agree with the judge that Canteloube
was not an agent of Namer
The judge found that the testimony was unclear as to whether union-
ization began in "mid-November or early December 1985" but that the
record shows that Namer's director, Erman, decided "before the Club's
employees made any attempts to seek unionization" to insist that the con-
tract between Namer and Larama provide that Larama's employees be
discharged The General Counsel has excepted to this finding, contending
that the record establishes that discussions concerning unionization began
prior to 3 December 1985, the date of the execution of the contract, and
that the Respondents' decision to include a provision in the contract re-
quiring Larama to discharge its employees was made with knowledge of
the union activity The General Counsel has correctly stated that the
record indicates that union activities commenced before the execution of
the contract We find, however, that the General Counsel has failed to
establish that the Respondents knew of the union activities before the de-
cision was made to provide for the discharge of Larama's employees or
before 3 December 1985, the date of the contract's execution In this
regard, we note that the record does not establish that Larama's supervi-
sor, Canteloube, was privy to any conversation concerning the Union
prior to 3 December Moreover, the record does not establish where the
521
conclusions2 as modified, and to adopt the recom-
mended Order as modified.
On 1 January 1986 Respondent Namer began
managing Club A, which was owned by Respond-
ent Larama. The judge, relying solely on the con-
tract executed by the Respondents on 3 December
1985, found that the Respondents were joint em-
ployers from January to June 1986. Larama has ex-
cepted, contending, inter alia, that the judge misap-
plied the law since his joint employer finding is not
supported by a showing that the two Respondents
shared or codetermined the terms and conditions of
employment of the employees in question. In sup-
port of its contention, Larama claims that from 1
January to 15 June 1986, the period during which
Respondent Namer managed Club A, Larama did
not take part in decisions concerning, inter alia,
hiring, salaries, health insurance, fringe benefits,
leave or personal days, or work schedules.
It is well settled that the question of joint em-
ployer status requires an examination into whether
an employer who is claimed to be a joint employer
possesses sufficient control over the work of the
employees to qualify as a joint employer with the
actual employer. Thus, when two or more business
entities share or codetermine those matters govern-
ing the essential terms and conditions of employ-
ment, a joint employer finding is appropriate.
Emeryville Trucking, 278 NLRB 1112 (1986); TLI,
Inc., 271 NLRB 798 (1984); Laerco Transportation
& Warehouse, 269 NLRB 324 (1984); and NLRB v.
precontract union discussions took place or that the discussions were
likely to have been overheard by agents of either contracting party
2 The judge concluded that Namer unlawfully denied employment to
Barroso and stated that Erman, the director of Namer, denied employ-
ment to Barroso because "Erman believed that Barroso would likely
engage in picket line activity and/or because he supported the Union " In
adopting his conclusion, we note that during a 26 December 1985 tele-
phone conversation, Bruneliere, who was working for Erman at that
time, told Barroso that opening Club A on 2 January 1986 "might be a
problem because supposedly the waiters were getting involved with the
union They did not know if the Union was going to let them open
up " In this regard, we note that, during that conversation, Bruneliere ap-
peared to be acting at least as a special agent of Namer inasmuch as
Erman had earlier told Barroso that "somebody" would contact him to
explain Club A's new procedures and Bruneliere apparently acted upon
Erman's direction in contacting Barroso in order to set up a meeting to
explain to Barroso "everything that was going on " See, e g , C & W
Super Markets, 231 NLRB 403, 407 (1977), enfd 581 F 2d 618 (7th Cir
1978) See also Restatement 2d, Agency 103 (1958) We further note in
this regard that on 2 January 1986, the date Barroso was told by Brune-
here that he would not be hired by Namer, Erman said to Barroso when
Barroso requested that Erman reconsider his decision "well you know all
you guys with the union I don't know why you are going after me for
I don't know what is going on with the guys with the union let
me discuss it with Rene Bruneliere
Finally, we note that the judge inadvertently stated that the hearing
was held in July 1985, rather than in July 1986, that Namer's president
returned to France on 7 June 1981, rather than 7 June 1986, and that the
Respondents began discussions in November 1980, rather than in 1985,
concerning the sale of Club A These errors are insufficient to affect the
result of our decision
285 NLRB No. 59
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Browning-Ferris Industries, 691 F.2d 1117 (3d Cir.
1982).
In the instant case, the facts do not support a
finding that Larama either shared or codetermined
the employees' terms and conditions of employ-
ment. On the contrary, the Respondents' contract
provided, inter alia, that Namer would manage
Club A as of 1 January 1986 and that Namer could
"hire, discharge and determine the compensation of
any employee, consultant or agent." The contract
further required Larama to terminate its employees
"on two weeks' prior notice," and it merely gave
Namer the option of retaining any of Larama's em-
ployees. As found by the judge, Namer's director,
Erman, hired only some of Larama's former em-
ployees.
Most significantly, Ricardo Amaral, an owner of
Larama, testified without contradiction that during
the period that Namer managed the Club, Larama
did not take part in any decisions concerning, inter
alia, hiring, salaries, health insurance, fringe bene-
fits, leave or personal days, or work schedules.
Indeed, there is no evidence that Larama possessed
or exercised any control over the terms and condi-
tions of employment of Namer's employees. We
conclude, therefore, that the General Counsel has
failed to establish that Larama was a joint employ-
er with Namer. Accordingly, we shall dismiss the
complaint as to Respondent Larama and provide a
new Order and notice.3
ORDER
The Respondent, Namer, Inc., New York, New
York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or refusing to employ any em-
ployees because of their support for a union or be-
cause they engage in concerted activity for their
mutual aid or protection.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
I Interest will be computed in accordance with our decision in New
Horizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts
accrued prior to 1 January 1987 (the effective date of the 1986 amend-
ment to 26 U S C § 6621) shall be computed in accordance with Florida
Steel Corp, 231 NLRB 651 (1977)
In his recommended Order, the judge granted the General Counsel's
request for a visitatorial clause authorizing the Board, for compliance
purposes, to obtain discovery from the Respondents under the Federal
Rules of Civil Procedure subject to the United States Court of Appeals
enforcing this Order Under the circumstances of this case, we find it un-
necessary to include such a clause Accordingly, we deny the General
Counsel's request
(a) Make Victor Barroso whole for any loss of
earnings and other benefits suffered as a result of
the discrimination against him, in the manner set
forth in this Decision and Order.
(b) In the event that Club A is reopened by Re-
spondent Namer, offer Victor Barroso immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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
Order. ,
(d) Mail to all employees who were employed at
Club A in December 1985 and January 1986 copies
of the attached notice marked "Appendix."4 which
are to be signed by Respondent Namer's represent-
atives. In the event Club A has been reopened by
Respondent Namer, the notice, on forms provided
by the Regional Director for Region 2, after being
signed by the Respondent Namer's authorized rep-
resentative, shall be posted by the Respondent
Namer immediately upon receipt and maintained
for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent Namer to ensure that the no-
tices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge or refuse to employ any
employees because of their support for a union or
CLUB A
because they engage in concerted activity for their
mutual aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make Victor Barroso whole for any
loss of earnings and other benefits suffered as a
result of the discrimination against him.
WE WILL , in the event that we reopen Club A,
offer Victor Barroso immediate and full reinstate-
ment to his former job or, if that job no longer
exists, to a substantialy equivalent position, without
prejudice to his seniority or any other rights or
privileges previously enjoyed.
NAMER, INC.
James G. Paulson, Esq., for the General Counsel.
Ernest R. Stolzer, Esq. (Rains & Pogrebin P.C.), of Mineo-
la, New York, for Larama Corporation.
Andrew M. Kramer, Esq. and Julie Stumpe Dressing, Esq.
(Jones, Day, Reavis & Pougue), of Washington, D C.,
for Namer Inc.
Harold Ickes, Esq. (Suozzi, English & Klein PC.), of New
York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was heard by me on 14 and 15 July 1985 in New
York City. The original charge was filed on 21 January
1986 against Namer, Inc. d/b/a Club A. This charge was
amended on 28 March 1986 to name Larama Corpora-
tion as an additional defendant. On 31 March 1986 the
Regional Director issued a complaint and notice of hear-
ing which was amended on 13 May 1986. The complaint
as amended alleged as follows:
1. That Larama and Namer were, from 1 January 1986
joint employers in the operation of Club A.
2. That Respondents, on 2 January 1986, discharged
employees Victor Barroso, Daniel Lag, and John Hatgi-
dimitriou because of their activities and support for the
Union.
3. That on 2 January 1986 Respondents, by Richard
Erman, told an employee (Daniel Lag) that he would not
be hired because he made an application for the Union.
4. That on 2 January 1986 Respondents discharged
employees Guillermo Balletbo, Bob Bouchini, Rola
Daviga, Rola Eve, Eugene Excellent, Jean Paul Fareri,
Marc Fareri, Christian Gravino, Luam Luone, Joanne
Mayor, Jousset K. Morshini, D. Narachie, David Scott,
Dudley Stephenson, and Desli Verbert. i
I In his brief, the General Counsel withdrew the allegation relative to
Eugene Excellent because he was reemployed by the Club when it re-
opened on 2 January 1986
523
5 That since 2 January, Respondents have refused to
offer reinstatement to the 15 employees named in para-
graph 4 for approximately five available jobs.
6 That the actions of Respondents described in para-
graphs 4 and 5 were motivated by antiunion consider-
ations.
Based on the record as a whole,2 including my obser-
vation of the demeanor of the witnesses and including
my consideration of the briefs filed, I make the following
FINDINGS AND CONCLUSIONS
i LABOR ORGANIZATION
The record establishes that the Union is an organiza-
tion in which employees participate and which exists for
the purpose of representing employees vis a vis their em-
ployers with respect to grievances , labor disputes , wages,
rates of pay , hours of employment , and conditions of em-
ployment I therefore conclude that the Union is a labor
organization within the meaning of Section 2 (5) of the
Act.
11. JURISDICTION
The enterprise in this case is a discoteque called Club
A located at 330 East 60th Street in Manhattan. The
Club, until 2 January 1986, was owned and operated by
a New York corporation called Larama Corporation.
Larama's stock was owned by a Brazilian corporation
called Dulac S A. and an individual named Krisztina
Reisini . The stock of Dulac is owned by Ricardo Amaral
(90%), along with Reisini and Francesco Livre, all Bra-
zilian citizens The officers and directors of Larama were
Krisztina Reisini , president; Piere Joliviet, secretary; and
Ricardo Amaral, treasurer.
During the year ending December 1985, Club A had
gross revenues in excess of $500,000 and it purchased
wines valued in excess of $10,000 which, although
bought from New York wholesalers, originated outside
the State of New York. As Larama during 1985 was en-
gaged in operating a retail establishment which met the
Board's standards for asserting jurisdiction, I conclude
that Larama is engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. Xenon, 250
NLRB 123 (1980), enfd. 671 F.2d 492 (2d Cir. 1981), Sie-
mons Marling Service, 122 NLRB 81 (1958).
For some time the Club had been losing money and by
the end of 1985 Larama had a debt of about $3 million.
At some point, probably in November 1980, Amaral, on
behalf of Larama, began discussing with Richard Erman,
on behalf of Namer, the possibility of selling the Club.
During this period, Erman was a frequent visitor to the
Club and either shortly before or shortly after a deal was
consumated, rumors began to be heard by employees
that the Club would be sold and that they all would be
2 At the opening of the hearing counsel for Namer, Inc informed me
that Namer's president, Richard Erman, had gone back to France on 7
June 1981 and would not return to the United States until September
1986 As I was not informed as to the reason for Mr Erman's absence
and as no request for a countinuance was made to me, the hearing pro-
ceeded However, counsel for Namer elected not to participate and left
the hearing
524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fired. It was these rumors that prompted the employees
to seek union representation.
In any event ,on 3 December 1985 a contract was exe-
cuted by Larama and Namer whereby the latter agreed
to operate the Club for a period after 1 January with an
option to purchase the shares of Larama. In consider-
ation , Namer agreed to assume Larama's indebtness and
agreed to pay Amaral as a "consultant," a fairly substan-
tial amount of money over six consecutive quarters. One
part of the agreement required Larama, on 2 weeks'
notice, to discharge the employees on 1 January 1986
and gave Namer the option of designating which em-
ployees it wished to retain. The relevant provisions of
this contract are as follows:
Transfer of Management Functions
1.1 Effective at noon on January 1, 1986; Larama
grants to Namer the exclusive right and license to
operate and manage the Club for the account of
Larama as herein provided.
1.2 In furtherance of the foregoing, Namer shall
appoint Richard Erman (Erman) or such other per-
sons designated by Namer from time to time upon
the consent of Larama, as manager and operator of
the Club as of January 1, 1986. Larama shall notify
such third parties and make such arrangements as
may be necessary to give such manager such con-
trol 'and powers as are necessary or appropriate to
operate the Club. Without limiting the foregoing,
such control and powers shall include the rights and
duties:
to hire, discharge and determine the compensa-
tion of any employee, consultant or agent,
to purchase, rent or otherwise acquire all food-
stuffs, liquor, supplies or other goods and services
for the Club,
to open bank accounts, to draw checks, to keep
books and records, and otherwise to handle the
financial affairs of the Club,
to operate the Club in such manner as Namer
may believe to be in the best interests of promot-
` ing and expanding the business of the Club, sub-
ject to Paragraph 1.3 below, and to do all things
necessary to renew or maintain in effect all per-
mits and l4censes relating thereto,
to alter or suspend during any period of alter-
ations the operation of the Club but not to
change the name of the Club, and
to make such capital improvements or repairs to
the Club as it deems appropriate, at its own ex-
pense; provided that any single alteration in
excess of Fifty Thousand Dollars ($50,000) or
any series of related alterations which aggregate
Fifty Thousand Dollars ($50,000) or more shall
require the prior consent of Larama, which such
consent shall not be unreasonably withheld.
1.3 Amara,.. shall have the right to occupy and
utilize the Club without charge for two weeks or
seven consecutive days each, which weeks need not
be consecutive, during each year from January 1,
1986 to the Transfer Date (as hereinafter defined)
during daytime hours (that is, prior to 6 p.m.) sub-
ject only to availability and prior bookings of the
Club and in any event upon at least ninety (90)
days' prior written notice to Namer.
1.4 From the date of signature of this Agreement
and until January 1, 1986, Larama will permit
Erman, Namer, or their respective designees, to be
present at any time during business hours at the
Club to examine the facilities, to inspect all books
and records of the Club, and to discuss the oper-
ations of the Club with suppliers, personnel and
other third parties, in order to acquaint itself or
himself with the operations of the Club. Should,
after due consultation with Larama, Namer deter-
mine prior to the Effective Date that the financial
condition, operations or business prospects of the
Club will not generate the cash flow necessary to
make the payments specified in Paragraph 2.1,
Namer shall so notify Larama, and this Agreement
shall be considered null and void ab initio , and nei-
ther party will have any further liability to the
other.
2. Consideration
2.1 In consideration for the above-mentioned
rights, Namer agrees to pay or otherwise settle on
behalf of Larama the financial obligations of
Larama as detailed in Schedule A (long term and
overdue indebtedness) and Schedule B (current
trade payables), as attached hereto and made a part
hereof; provides however that (a) Namer's aggre-
gate obligations hereunder shall not exceed Three
Million Seven Hundred Seventy Thousand Dollars
($3,777,000), and (b) Namer's obligation in any cal-
endar year to any category of creditor shall not
exceed the following sums during each of the fol-
lowing calendar years, (with "Banco" as used
herein referring to Banco Nacional, S A)
2.8 As from the Effective Date, Larama shall
have terminated on two weeks' prior notice the
employ of all personnel working at or on behalf of
the Larama as requested by Namer, and Larama
shall pay all salaries accrued to such terminated em-
ployees, including any accrued severance or vaca-
tion pay. Namer may, retain on Larama's payroll
such personnel of Larama as Namer elects, pursuant
to Paragraph 1.2.
2.10 As additional consideration for the respec-
tive undertaking hereunder and subject to closing
on the Transfer Date, Namer agrees to pay or cause
Larama to pay to Amaral personally a consulting
fee which shall be payable at the rate of ($50,000)
per calendar quarter, for (6) consecutive quarters,
the first such fee due on the first day of the calen-
dar quarter following the Transfer Date, as speci-
fied in Paragraph 3.2 below. In consideration there-
for, Amaral agrees to render such marketing and
other assistance to Namer as may be reasonably re-
quested from time to time. Such consulting fees
CLUB A 525
shall be deemed to accrue on a pro-rata basis over
the term of this agreement until the Transfer Date;
otherwise, such fees shall be considered personal to
Amaral, and to the extent not accrued shall not sur-
vive any death, disability or non-performance of
Amaral
5. Warranties and Covenants
5.1 Larama and Amaral, jointly and severally,
warrant and covenent that:
(n) Larama is not party to any collective bargain-
ing agreement.
Miscellaneous
9.3 Each party shall be deemed in respect of all
activities contemplated hereunder to be an inde-
pendent contractor, and this Agreement shall not
create a joint venture, partnership or similar rela-
tionship between the parties.
On 2 January Erman took over the management of the
Club and operated it until June 1986. During that time,
neither Amaral nor any of the other officers of Larama
performed any services for Namer. During the same
period of time, the Club had gross sales in excess of
$500,000 and purchased California and French wines in
amounts more that de minimis.3
In January 1986 Larama filed for bankruptcy. After
operating the Club for several more months, Erman de-
cided not to purchase the shares of Larama and terminat-
ed his relationship to the Club. As a result, in June 1986
the Club closed.
Based on the above I conclude that during the time
that Namer operated Club A, it met the yearly gross
sales figures required for asserting jurisdiction over retail
establishments. I also conclude that its purchases of out-
of-state wines was more than de minimus. Accordingly,
it is my opinion that Namer, on its own account, was an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Also based on the
contract between Namer and Larama, I conclude that
during the period from January to June 1986, Namer was
a joint employer with Larama. Boire v. Greyhound Corp.,
375 U.S. 473 (1964); Emeryville Trucking, 278 NLRB
1112 (1986); American Air Filter Co., 258 NLRB 49, 52
(1981); C. R. Adams Trucking, 262 NLRB 563, 566
(1982), enfd. 718 F.2d 869 (5th Cir. 1983).
III. OPERATIVE FACTS
In the latter part of 1985 Club A employed about 40
people, none of whom were represented by a union. Al-
though the testimony of the General Counsel's witnesses
a Namer, Inc did not respond to a subpoena duces tecum directing it
to produce its sales and purchases records Also, as Erman, Namer's
president, did not appear at the hearing, the General Counsel introduced
sales records for the Club that were produced by Larama and showed
sales from 2 January 1986 to June 1986
As Namer, Inc did not respond to a valid subpoena, it is in no position
to object to the introduction into the record of evidence that might oth-
erwise be objectionable Tropicana Products, 122 NLRB 121 (1958);
George E Masker, Inc, 261 NLRB 118 in 2 (1982); Carpet City Mechani-
cal Co, 244 NLRB 1031, 1032 (1979)
is a bit unclear as to whether employees began talking
about unionization in mid-November or early December
1985, the record shows that discussions of unionization
began after and because the employees heard rumors that
the Club would be sold and that they would be fired.
Indeed these rumore were essentially correct as the 3
December contract between Larama and Namer required
the former to discharge its employees prior to Namer as-
suming questions and upon 2 weeks' notice. (The notice
to be given around 16 or 17 December). In my view it is
significant that the discussions between Amaral and
Erman leading up to his contract most likely occurred
before the employees made any effort to seek union rep-
resentation.
In the beginning of December 1985, Erman com-
menced interviewing employees of the Club. According
to Jean Hatgtdimitriou, one of the three bartenders,
when he was interviewed by Erman he made various
suggestions on how to run the bar. He states that Erman
said that he liked the ideas and looked forward to meet-
ing him again. Sometime later in December, Erman told
him that he was going to use only one bartender.
Daniel Lag, a waiter, testified that he was interviewed
by Erman in the early part of December. He states that
Erman told him that he was going to keep five or six
employees; that he was going to look at how the em-
ployees worked and handled business. Erman told Lag
that he would let him know by the end of the month he
would be retained.
Victor Barroso testified that he was interviewed by
Erman during the second week of December but was not
made any job offer at that time.
According to Barroso, sometime in mid-December
(probably between 11 and 14 December), he called up
Albert Stephenson, a union representative and arranged
for Stephenson to meet with the Club's employees on 16
December. Barroso also spoke to other employees about
this meeting,
Barroso states that about 14 December he, spoke to
Claude Canteloube, the maitre d' and his assistant Chris-
tian Daniel. He states that he told Canteloube (admitted-
ly a supervisor of Larama), that the employees were
thinking of joining a union whereupon Canteloube re-
plied that he thought that getting a union was a good
idea but that he could not get involved and could not
know anything about it because he was part of manage-
ment. Barroso joked that Canteloube was acting like Sgt.
Schultz on Hogan Heros (i.e., "I hear nothing, I see
nothing, I know nothing"). I note that according to Bar-
roso he had earlier spoken to Canteloube who said that
he (Canteloube) would not be retained by Erman; that
Erman intended to hire six or seven of the waiters; and
that he was going to rehire Rene Brunelieu to be in
charge of the waiters and busboys. Thus Barroso states
that he spoke to Canteloube about the Union because be
felt that Canteloube (in light of his imminent discharge),
had no reason to say anything to management. (Cante-
loube was not called as a witness in this proceeding.)
According to Hatgidimitriou, on 14 or 15 December
he spoke to Canteloube. He states that Canteloube said
that he had just spoken to Erman who said that the only
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
two people who were going to be kept were the captain,
Rene Scarzolla, and Jean Hatgidimitriou. Canteloube
also said that Erman told him that he had a completely
different type of operation in mind and that he (Cante-
loube), did not expect to be retained.
Amaral testified that on 15 and 16 December he was
told by Erman that he did not want to keep any of the
employees except for the day-time service personnel. Ac-
cording to Amaral, Erman said that he wanted to have a
completely different type of operation and that if he kept
the old employees he would have difficulties making
changes. Amaral states that as a result of this conversa-
tion , he prepared the discharge letters that were given to
the employees on 16 and 17 December (described
below). He stated that prior to this time he had no
knowledge of union activities and that neither Cante-
loube nor Christian Daniel had mentioned anything to
him about a union.
On 16 December a union meeting was held at Eduar-
do's restaurant. This was the first meeting between union
agents and the Club's employees. It was attended by
about 15 or 16 employees and some of the employees
signed union authorization cards. According to Lag, on
17 December he told Canteloube about the union meet-
ing whereupon the latter said that it was a good idea but
that he could not do anything. Lag initiated this conver-
sation.
About 17 December, and consistent with the terms of
the 3 December contract between Larama and Namer,
the former sent a letter to its employees which read as
follows
To All Club A/Larama Staff,
Over the past few weeks most of you have met
Mr. Richard Erman, representing "Namer" who.
will be the new management to direct all further
administrative decisions for Club A. as of January 1,
1986.
The writing of this memorandum is not a pleasur-
able task , but it is however inevitable.
We the present management sincerely regret to
inform you that as of January 1, 1985 you will no
longer be employed by Larama Corporation.
We wish to thank all of you, whether you have
been with us since we opened our doors or if you
have joined us recently, for your part in what has
been more or less a family, with the normal prob-
lems and conflicts which are inherent in all families.
We wish all of you the very best of luck in future
endeavors and success in whatever roads you may
travel, and we hope to have the opportunity to
work with you again in yet another great endeavor.
According to Barroso around the week before Christ-
mas he spoke to Erman who told him that he was the
only waiter that Erman wanted to keep. Erman also told
Barroso that he also intended to retain Isteak Rumi as a
service bartender. (Rumi was hired as a busboy and was,
at this time, being trained to be a bartender.) According
to Barroso, Erman told him that there would be a meet-
ing coming up but that Barroso did not have to 'attend;
that it mostly would be in French. Erman told Barroso
that he would get in touch with him regarding the new
,procedures.
Jean Hatgidimitriou testified that a few days before
Christmas Isteak Rumi told him that a group of new em-
ployees had been at a meeting and that Rene Hatgidimi-
triou figured that since he had not been invited to this
meeting he was not being retained. He also felt that if
Bruneliere, with whom he had a prior dispute, had been
hired, then the job was "not for me anyway." As a result
he did not go back to the Club after 31 December. He
also states that Rumi told him that at the meeting, Rene
Bruneliere was taking notes and was acting like he was
in charge of the meeting.
Barroso testified that on the day after Christmas he
got a telephone call from Bruneliere who said that he
was in charge of the waiters and busboys and that he
wanted to set up a meeting to explain to Barroso every-
thing that was going on. According to Barroso, Brune-
liere said that the Club expected to reopen, on 2 January
but that there might be problems because the old waiters
were getting involved with a union and they (manage-
ment) did not know if the old waiters would prevent the
new waiters from coming to work. Barroso states that
Bruneliere told him to meet him at a coffee shop in As-
toria on Friday. He states that during this conversation
he did not tell Bruneliere about his involvement in the
Union. Barroso did not go to the meeting on Friday.
About 21 December another union meeting was held
where more employees signed union cards. Thereafter on
27 December, the Union filed a petition for an election
in Case 2-RC-20080. (I do not know when this was ac-
tually received by the employer.)
About 29 December another union meeting was held
because some of the employees wanted to picket the
Club when it reopened under Erman's management. Ste-
phenson, the Union's business agent, dissuaded the em-
ployees from taking such action. He said that he was
going to go talk to Amaral and that the employees
should "wait and see."
On 30 December the Union sent a mailgram to the
Club which was received on 31 December. This stated:
Please be advised that a majority of your employees
have designated Hotel Employees and Restaurant
Employees Union Local 100 as their sole exclusive
representative for the purpose of collective bargain-
ing and resolution of grievances, We have in our
possession Local 100 authorization cards duly exe-
cuted by a majority of your employees. We are
willing to submit same to an impartial third party
for purposes of authentication. We wish to negotiate
the terms and conditions of a collective bargaining
agreement. Our representative will be at your estab-
lishment on Tuesday December 31, 1985 at 11:30
AM. Any action by you or your supervisors that
discriminates 'against your employees or interferes
with that union or other protected activities and
their support for Local 100 will require us to take
legal or other appropriate action.
On 31 December, union agent Stephenson visited the
Club and spoke to Amaral. He demanded recognition
CLUB A 527
and Amaral declined, stated that the place had been sold.
According to Stephenson, Amaral said that he would try
to set up a meeting with the new owner.
On 1 January 1986 the Club closed and was reopened
on 2 January under the management of Erman. Apart
from a few of the former employees, the Club was re-
opened with essentially a new crew. Jean Hatgidimitriou,
as noted above, did not attempt to go to work on 2 Janu-
ary 1986 as he assumed that he would not be hired.
According to Daniel Lag he went to the Club on the
evening of 2 January. He states that when he entered he
saw a whole new crew of waiters working and that he
heard Erman introduce Rene Bruneliere to someone as
the head waiter. Lag states that he spoke to Erman and
told him that he came down to see if he was supposed to
work because Erman had previously said that he intend-
ed to keep a few of the old employees. Erman allegedly
responded that "because of the application I make to the,
Union and because of the trouble and all made to him
and because of the champagne and wine we stole ... he
changed his mind and he had all his crew ready to start
work." According to Lag, thereafter in January 1986 he
called Bruneliere a few times about working at the Club
but was put off each time and was never offered employ-
ment.
Victor Barroso testified that he went to the Club on
the evening of 2 January and that when he saw Rene
Bruneliere the latter asked why he (Barroso) had not
called him back and why Erman had hired someone else.
He asserts that Bruneliere said, "I don't know what is
going on because of this thing with the union." Accord-
ing to Barroso when he spoke with Erman later in the
evening, Erman said something to the effect that he ex-
pected problems; that he was afraid that the old waiters
might try to stop the new waiters from coming in to
work. According to Barroso he left his phone number
with Erman for the latter to call if Erman wanted to
employ him. Barroso asserts that he was neither then nor
thereafter offered work at the Club.
About 12 January 1986 Larama filed for protection
from creditors pursuant to Chapter 11 of the Bankruptcy
laws. This apparently caused new discussions to take
place between Larama and Namer regarding the terms of
the purchase agreement.
In March 1986, according to Barroso, he happened to
meet Rene Bruneliere at a bar. He states that in the
course of conversation, Bruneliere said that Erman "fired
you because of the Union."
In June 1986 Erman decided that he would not go
through with the purchase of Larama's stock and with-
drew from Club A's management. On 15 June 1986 the
Club closed,
IV. ANALYSIS
The General Counsel argues that the joint Respond-
ents on 2 January 1986 discharged employees Barroso,
Lag, and Hatgidimitriou because of their activities on
behalf of the Union. He also contends that on the same
date the Respondents, for antiunion reasons, discharged
14 other employees and refused to rehire them for five
available jobs.
It has been demonstrated that, by December 1985,
Larama was losing considerable amounts of money from
the operation of Club A and that Amaral, its principal
owner, entered into negotiations with Erman for the
latter to purchase the shares of Larama through a corpo-
ration called Namer, Inc. At the time those negotiations
commenced, the employees of the Club were not repre-
sented by any labor organization.
The record also shows that Erman, as part of the deal,
insisted that all of the employes of the Club be given
notice of their discharge effective upon his takeover; said
notice to be given 2 weeks in advance. Erman also as-
serted in the contract the right to retain any of the old
employees that he chose. The key point for purposes of
this case is not why Erman insisted on this condition.
Rather, the significance lies in the fact that his decision
in this regard occurred before the Club's employees
made any attempts to seek unionization. Therefore this
decision by Erman, which was embodied in the 3 De-
cember contract, could not have been motivated because
of the employees' nonexistent union activities. In fact,
the evidence shows that it was this decision, when it
became known to employees, that prompted them to
seek union representation.
About 17 December 1985 Larama, in accordance with
the terms of the 3 December contract, notified all of its
employees that they would be discharged on 1 January
1986.
The evidence, even as presented by the General Coun-
sel's own witnesses, confirms that Erman, before taking
over the Club's, operations, had decided to retain only a
very small number of the employees. Thus, although
there were, in mid-December, about 40 people employed
at the Club, Daniel Lag reported that at a meeting he
had with Erman about 10 December (before the first
union meeting on 16 December) the latter said that he
was going to keep "five or six of us."' Hatgidimitriou tes-
tified that prior to receiving his discharge notice he was
told by Claude Canteloube that Erman had told him that
he (Erman) was only going to keep two people, Hatgidi-
mitriou and Rene Scarzolla.4 Similarly, Barroso testified
that about a week before Christmas he was told by
Erman that he, (Barroso) was the only waiter Erman
wanted to retain. He was also told that Isteak Rumi was
going to be kept on as the service bartender.
Because I conclude that by 16 December Erman on
behalf of the Respondents made the decision to discharge
the vast majority of the Club's employees for reasons
that were not violative of the Act, it follows that in
order for the General Counsel to prove an 8(a)(3) viola-
tion as to any particular employee, he must show that
Erman intended to make an exception for that employee
and retain his or her services on the Club's reopening in
January 1986.5 As to the individuals other than Barroso,
4 Although the evidence shows that Canteloube was a supervisor of
Larama within the meaning of Sec 2(11) of the Act, I would not con.
clude that was in this case acting as an agent of Erman When Cante-
loube spoke to Hatgidimitriou or other employees from mid-December
on, he was aware that he too was going to be discharged on 1 January
and that Erman had no intention of retaining his services
5 1 pass no judgment as to the wisdom or general fairness of this deci-
sion My only function is to determine whether this decision was motivat-
Contin.ued
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lag, and Hatgimiditriou, whom the General Counsel al-
leges were discriminatorily denied employment for "five
available jobs," I see no evidence that would lead me to
conclude that Erman intended to keep any of those spe-
cific individuals accept for Eugene Excellent who was,
in fact, hired when the Club reopened. As I do not find
any evidence that their nonretention was discriminatorily
motivated, I shall recommended that this allegation of
the complaint be dismissed.
In his brief the General Counsel argues that soon after
the Union's organizational campaign got under way,
Erman "had withdrawn job offers from Barroso, Hatgi-
dimitriou and Lag." Yet based on this record, I find evi-
dence of only one such offer, that being to Victor Bar-
roso about 20 December. In Lag's case there is absolute-
ly no evidence that he was ever offered continued em-
ployment at the Club by anyone. Hatgidimitriou's case is
somewhat intermediate because although there is no evi-
dence that he was ever offered employment by Erman6
or anyone clearly acting on Erman's behalf, there is evi-
dence that Hatgidimitriou was told by Claude Cante-
loube that Erman intended to retain his services. Never-
theless as Canteloube was aware at this time that he too
was going to be discharged by Erman, it is hard for me
to conclude, despite his supervisory status for Larama,
that he was speaking on Erman's behalf.
In the case of Lag, the General Counsel relies to a
great extent on an alleged conversation between Lag and
Erman on 2 January 1986. Lag states that he told Erman
that he had come to the Club because Erman had previ-
ously said that he was going to keep a few of the old
employees.? He asserts that Erman said that he had
changed his mind and had hired a new crew "because of
the application I made to the Union and because of the
trouble we all made to him and because of the cham-
pagne and wine we stole ...."8 Recognizing that
Erman did not testify and therefore did not deny this al-
leged conversation, I find it to be too pat and so at vari-
ance with the other objective facts of the case that it is
unbelievable. Since Lag concedes that neither Erman nor -
anyone on his behalf had ever made a job offer to him
(as had been made to Barroso and a number of other em-
ployees), I fail to see how Erman could have changed
his mind about offering him employment. As Lag, with
most of the other employees had been notified (for non-
discriminatory reasons) of his impending discharge by
letter of 16 or 17 December and as there was no evi-
dence to suggest that Erman ever intended to retain his
services I do not believe that the evidence is sufficient to
establish, as the General Counsel argues, that Erman
withdrew an offer of employment previously made to
Lag for discriminatory reasons.
ed by antiunion reasons or otherwise motivated by a desire to preclude
the employees from engaging in concerted activities for their mutual aid
and protection as defined by Sec 7 of the Act
6 To my mind Hatgidimitriou's testimony that Erman liked his ideas
about running the bar does not translate into evidence of a job offer One
would think that if Erman intended to retain Hatgimiditnou as a bartend-
er, he would have as in the case of Barroso, offered him the job directly
' Erman did in fact keep a few of the old employees
8 There is no evidence that any champagne or wine was stolen
Barroso's case is different from Lag's because there is
evidence that Erman had specifically offered employ-
ment to him about a week before Christmas. Neverthe-
less, on 2 January when Barroso came to the Club he
was not hired. Rather, he was told by Erman something
to the effect that he (Erman) expected problems and that
he was afraid that the old waiters might try to stop the
new crew from coming to work. Given the failure to put
Barroso to work after having made him a job offer short-
ly before, coupled with the uncontradicted statements at-
tributed to Erman by Barroso on 2 January, I can only
conclude that the most probable reasons that he was
denied employment ' was because Erman believed that
Barroso would likely engage in picket line activity
and/or because he supported the Union As picketing by
employees for the purpose of saving their jobs would
constitute protected concerted activity within the mean-
ing of Section 7 of the Act, a refusal to employ Barroso
because Erman believed that Barroso might engage in
such activity would be violative of the Act.9 Hi Fi Buys,
257 NLRB 1250, 1252 (1981). Alternatively, if Barroso
was not employed because he joined or supported the
Union, such an action would likewise violate the Act.
The evidence involving Hatgidimitriou is intermediate
between the cases of Barroso and Lag. Thus, although
there is no evidence that Erman directly offered Hatgidi-
mitriou a job, there is at least some evidence that he in-
tended to retain Hatgidimitriou's services after the Club
reopened in January 1986. The problem is that this evi-
dence is, to my mind, ambiguous. It may be that Lara-
ma's maitre d' Claude Canteloube told Hatgidimitriou
that Erman intended to retain him., However, as Erman
had not yet taken over management of the Club, Cante-
loube cannot be considered his agent. Moreover, because
Canteloube was aware that he too was going to be dis-
charged when he had this discussion with Hatgidimt-
triou, this seriously undermines any contention that he
was speaking on behalf of the Respondents. Accordingly,
if Canteloube at this point should not be considered as an
agent of Erman (the person making the employment de-
cisions), then Hatgidimitriou's testimony as to what
Erman allegedly told Canteloube would constitute hear-
say. Although admissible, absent objection,10 the testi-
mony in the circumstances does not strike me as being
particularly reliable insofar as the alleged statement by
Erman to Canteloube that he intended to hire Hatgidimi-
triou. In this respect, it simply makes no sense to me that
Erman, who was constantly at the Club's premises in
December, would utilize a man (Canteloube) whom he
was about to have fired, to transmit a job offer to Hatgi-
dimitriou There clearly was ample time and opportunity
for Erman to do this himself if, as Hatgidimitriou claims,
he was so impressed with the latter's ideas for running
the bar. Therefore, I simply am not persuaded that
Erman intended to retain the services of Hatgidimitriou
9 In reaching this conclusion I need not rely on the testimony of Bar-
roso as to a conversation he had with Rene Bruneliere in March 1986 In
this regard, although I have no doubt as to the conversation as reported
by Barroso, I do have serious doubts as to the agency status of Brunehere
vis a vis the Respondents
10 C & D Transfer, 258 NLRB 586 In 2 (1981)
CLUB A 529
or' that an offer of employment was made to him by any
person acting on Erman's behalf. Thus, for the same rea-
sons applicable to Lag's case, I conclude that the Gener-
al Counsel has not established that Hatigidmitriou was
denied employment at the Club for discriminatory rea-
sons.
CONCLUSIONS OF LAW
Based on the record as a whole I make the following
conclusions
1. Respondent Larama Corporation is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Respondent Namer, Inc. is an employer engaged in
commerce within the meaning, of Section 2(2), (6), and
(7) of the Act.
3. During the period from 2 January 1986 to Club A's
closing in June 1986, Larama Corporation and Namer,
Inc. were joint employers as to the operation of the
Club.
4. Since 2 January 1986, Respondents denied employ-
ment to Victor Barroso because of his activities on
behalf of the Union and/or their belief that he would
participate in concerted action with other employees for
their mutual aid and protection.
5. The unfair labor practice described above affects
commerce within the meaning of Section 2(6) and (7) of
the Act. '
(. Fxcept to. the,extent found above, the Respondents
have not violated the Act in any other manner alleged in
the complaint.
THE REMEDY
Having found that Respondents have violated the Act
in certain respects, I shall recommend that they cease
and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
Concerning Victor Barroso, it is recommended that if
either Respondents Larama Corporation or Namer, Inc.
reopen the Club that they offer him full and immediate
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position without prej-
udice to his seniority or other rights and privileges previ-
ously enjoyed. I shall also recommend that Respondents,
jointly and severally make Barroso whole for any loss of
earnings he may have suffered because of the discrimina-
tion practiced against him. The backpay period would
commence on 1 January 1986 until the date the Club
closed, but would resume if and when the Club were to
be reopened by either Respondents. Backpay is to be
computed in accordance with the formula set forth in
F. W. Woolworth Co., 90 NLRB 298 (1950), with interest
to be computed in the manner prescribed in 1171orida Steel
Corp., 231 NLRB 651 (1977). See generally Isis Plumbing
Co., 138 NLRB 716 (1982).
[Recommended Order, omitted from publication.]