D.R.C., Inc.

National Labor Relations Board - Board Decisions

Dec 23, 1977

233 N.L.R.B. 1409 (N.L.R.B. 1977)

D.R.C., INCORPORATED
D.R.C., Incorporated; D.R.C., Incorporated, d/b/a
The Stockyard; D.R.C., Incorporated d/b/a
Northgate Big Top; D.R.C., Incorporated, d/b/a
The Featherduster; D.R.C., Incorporated, d/b/a
Dungeness Dans; D.R.C., Incorporated, d/b/a Los
Arcos and Seattle Local Joint Executive Board,
affiliated with the Hotel, Motel, Restaurant Em-
ployees and Bartenders International Union, AFL-
CIO. Cases 19-CA-8725, 19-CA-8803, 19-CA-
8804, 19-CA-8805, 19-CA-8806, and 19-CA-
8807
December 23, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On August 26, 1977, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,1 and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order, except that the
remedy is modified so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, D.R.C., Incorpo-
rated, Mercer Island, Washington, and doing busi-
ness under any other name in Seattle and Tukwila,
Washington, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 In Conclusion of Law 5 which states the finding that Respondent
violated Sec. 8(a)(3) by refusing to rehire employees formerly employed by
Respondent, the Administrative Law Judge inadvertently omitted his
finding that by doing so Respondent also violated Sec. 8(a)(I). Thus, we
hereby modify the conclusion to conform to that finding.
3 See, generally, Isis Plumbing A Heating Co., 138 NLRB 716(1%2).
233 NLRB No. 201
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge: This
matter was heard by me in Seattle, Washington, on March
17, 18, and 28, 1977. On August 26, 1976,1 the Acting
Regional Director for Region 19 of the National Labor
Relations Board issued a complaint and notice of hearing
in Case 19-CA-8725, based upon an unfair labor practice
charge filed on July 13 and amended on August 19,
alleging violations of Section 8(aXl1) and (5) of the
National Labor Relations Act, as amended, 29 U.S.C. Sec.
151, et seq., herein called the Act. On September 24, the
Regional Director for Region 19 issued a consolidated
complaint in Cases 19-CA-8803 through 8807, based upon
unfair labor practice charges, each of which was filed on
August 9 and each of which was amended on August 24,
alleging violations of Section 8(aX1) and (3) of the Act. On
that same date, the Regional Director issued an order
consolidating cases, order rescheduling hearing and conso-
lidated complaint, consolidating all of the above-captioned
cases for hearing and decision.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine
witnesses, and to file briefs. Based on the entire record, the
briefs, and my observation of the demeanor of the
witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
At all times material, D.R.C., Incorporated, herein called
Respondent, has been a Washington State corporation
with an office and place of business located at 7720 17th
SE., Mercer Island, Washington, from which it directs the
operations of restaurants at various locations in the State of
Washington, including D.R.C., Incorporated, d/b/a The
Stockyard, herein called Stockyard, Aurora Village, Seat-
tle, Washington; D.R.C., Incorporated, d/b/a Northgate
Big Top, herein called Big Top, Northgate Mall, Seattle,
Washington; D.R.C., Incorporated, d/b/a The Feather-
duster, herein called Featherduster, Northgate Mall, Seat-
tle, Washington; D.R.C., Incorporated, d/b/a Dungeness
Dans, herein called Dungeness Dans, Pier 52, Seattle,
Washington; and D.R.C., Incorporated, d/b/a Los Arcos,
herein called Los Arcos, Southcenter, Tukwila, Washing-
ton. At the time that the complaint and notice of hearing
issued, Respondent admitted in its answer that, based on a
projection, it would derive gross revenue in excess of
I Unless otherwise stated, all dates occurred in 1976.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$500,000 and would purchase goods in excess of $50,000
directly from outside the State of Washington during the
current year. Therefore, as admitted in the answer, I find
that at all times material Respondent has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Seattle Local Joint Executive
Board, affiliated with the Hotel, Motel, Restaurant Em-
ployees and Bartenders International Union, AFL-CIO,
herein called the Union, has been a labor organization
within the meaning of Section 2(5) of the Act.
III. ISSUES
A. Whether David Cohn, Respondent's president,
promised increased wages and fringe benefits to employees
to induce them to forgo supporting the Union; whether
then-Los Arcos Manager Patsy Covin sponsored, encour-
aged, and solicited employee support of an antiunion
petition and ordered employees to stop talking about the
Union; whether Dungeness Dans manager, Gerard Le-
Comte, said that all employees would lose accrued seniori-
ty upon sale of the restaurant to Respondent and told
employees that Respondent would not hire union employ-
ees; whether Big Top Manager Laurelyn "Sam" Downing
told employees that they must withdraw from the Union to
be considered for employment with Respondent and
interrogated employees regarding their union sympathies;
whether Stockyard Manager Ann Baker promised in-
creased wages and benefits to employees to induce them to
abandon support for the Union, threatened employees with
termination if they continued to support the Union, and
told an employee that she was a union troublemaker and
was to refrain from discussing the Union with other
employees as a condition of reemployment; whether
Stockyard Assistant Manager Dan Callahan told employ-
ees that Respondent would not rehire them unless they
were nonunion; and whether Respondent was responsible
for this conduct if it occurred, thereby violating Section
8(a)(l) of the Act?
B. Whether Respondent closed Los Arcos, Big Top,
and Stockyard temporarily on July 19 and terminated the
employees working at these facilities in an effort to avoid
its bargaining obligation as a successor-employer and in an
effort to discourage activities on behalf of the Union by the
employees, thereby violating Section 8(a)(3) and (1) of the
Act?
C. Whether Respondent refused to rehire certain of the
terminated Los Arcos, Big Top, and Stockyard employees
because of their activities on behalf of the Union, thereby
violating Section 8(a)(3) and (1) of the Act?
D. Whether Respondent failed and refused to recog-
nize the Union as the collective-bargaining representative
of the employees at the five restaurants, in single-restaurant
units, and changed terms and conditions of employment at
the restaurants without prior notice to or bargaining with
2 It is undisputed that single-restaurant units of these employees are
appropriate units within the meaning of Sec. 9(b) of the Act.
3 As Respondent was not formed until the time of the purchase, the
the Union, thereby violating Section 8(a)(5) and (1) of the
Act?
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
Prior to July 19, Clark's Restaurant Enterprises, herein
called Clark's, a division of Campbell Soup Company,
operated all five restaurants listed in section I, supra, and
all employees of each, excluding clerical employees, super-
visors, and guards,2 were covered by collective-bargaining
agreements between the Union and Clark's. For approxi-
mately a year prior to July, David Cohn, president of
Consolidated Restaurants and of Respondent,3 had been
negotiating for purchase of these five restaurants and,
according to Cohn, by spring negotiations had begun to
solidify to the point where, subject to approval of Campbell
Soup Company's board of directors, the sale would be
finalized. Thus, in June, the management personnel of the
restaurants attended a meeting at which Cohn was intro-
duced and he explained the procedure to be followed for
commencement of operations by Respondent. On July 12
and 13, Cohn met with the employees of the restaurants, as
described in greater detail in section IV, B, infra.
Upon learning of the proposed sale, Union Business
Manager Mario Vaccarino contacted Cohn, and meetings
between them were held on July 12 and again on July 15.
At the July 12 meeting, Vaccarino requested continued
recognition of the Union as the representative of the
employees at the restaurants. Cohn replied that he pre-
ferred to do so only if a majority of the employees
indicated such a preference in an election. It is undenied
that, in response, Vaccario had said that a majority of the
employees had signed cards authorizing the Union to
continue representing them and that, accordingly, Vaccario
did not feel that an election was necessary. Nor was it
disputed that Cohn had then said: "It appeared - if the
people had signed that kind of a card, that it would appear
to him that they did want to remain Union, but he wanted
to discuss it with his attorney and have a meeting with his
employees ... ."
On the following day, Vaccarino filed the charge in Case
19-CA-8725, alleging, inter alia, that Respondent "has
refused to recognize the above-named Union as their [the
employees'] collective bargaining agent." The return re-
ceipt attached to General Counsel's Exhibit 2(b) discloses
that this charge was received by Respondent on July 14.
On that same date, Cohn authored a letter to Vaccarino
expressing willingness to participate in a second meeting
and suggesting July 15 or 16 as possible dates for meeting.
In the letter, the following two paragraphs appear:
There is a possibility that we will not open the
restaurants on the 19 of July. It has been recommended
that they be closed for renovation, as perhaps you know
many of these restaurants have not been remodeled for
several years.
negotiations for the sale of the restaurant were under the control of
Consolidated Restaurants.
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D.R.C., INCORPORATED
Therefore, in the next few days, that determination will
be made. It could be that we may operate these
immediately and then close in the month of August.
Again, may I reiterate that these statements are a
possibility and I cannot at this time determine what we
will do.
On July 15, Vaccarino, accompanied by Secretary-Treas-
urer Alice Beals, met with Cohn, who was accompanied
by Vice President James Aitken. All agree that Vaccarino
renewed his demand for continued recognition. However,
Cohn and Aitken testified that, by the end of the meeting,
Vaccarino had consented to an election. Both Vaccarino
and Beals denied unequivocally that any such agreement
had been reached. Rather, they testified that Vaccarino
had declined to agree to an election on the basis that a
majority of the employees in the five units had already
signed cards. According to Vaccarino and Beals, Cohn had
then retorted that, if the Union did not agree to an election,
he could close the restaurants for cleaning and then could
rehire the employees whom he wished to rehire, instead of
having to hire back all of the employees, adding that this
was not a threat but merely a statement of what he could
do legally. Neither Cohn nor Aitken denied that Cohn had
made the comment regarding the rehiring of employees in
the event of closure. Both conceded that Cohn had raised
the subject of closure of the restaurants and had said that
he was not doing so to threaten Vaccarino. However, both
contended that the discussion of closure had been raised
solely in the context of pointing out to Vaccarino the need
to renovate and clean the restaurants and both denied that
the subject had been injected into the discussion in an
effort to cudgel Vaccarino into consenting to an election.
Nevertheless, Cohn did not deny having telephoned
Vaccarino on the following day and having said that, since
a call from the Union's attorney had made it obvious that
the Union did not intend to agree to an election, he
intended to close three of the restaurants on Monday, July
19, when Respondent would be assuming control of
operations at all five restaurants. Consequently, notwith-
standing Aitken and Cohn's denials regarding the threat of
closure attributed to the latter on July 15, Cohn's uncontro-
verted telephone comments tend to corroborate Vaccarino
and Beals' account of Cohn's July 15 threat - so too do
the events which transpired subsequently, for three restau-
rants were closed and Respondent then did rehire employ-
ees selectively. Moreover, as discussed in section IV, B,
infra, Respondent's officials made a series of comments
demonstrating hostility toward continued representation of
the employees and, as discussed in section IV, C, infra, the
evidence failed to support Respondent's defense regarding
the motivation for the closures. Both Vaccarino and Beals
4 From Los Arcos-Judy Richards, Connie Baldwin, Jerry Moon, Anne
Shockley, Joe Jenkins, Gary Fergus, Sally Routt Koshak. Ruth Dahlgren,
Grace Marczuk, Donna Steward, Vicki Buzard, and Konnie Precious; from
Stockyard-Richard Nelson, Charles Nelson, Jerri June Kyle, Elizabeth
Fuller, Susan White, Joyce Moseley, Sandra Finch, Richard Bates, Bruce
Sullivan, Paula Gage, Jorun Marckx, and Bonnie Stygar; and from Big
Top-John Wagner, Diane Massimino, Susan Osterburg, Kathy Kennedy,
Barbara Moore, Rick Madden, Thomas Lukens, and Candy Day.
5 Anne Shockley, Joe Jenkins. Grace Marczuk, and Donna Steward at
Los Arcos; Jerri June Kyle. Elizabeth Fuller, Sandra Finch, Bruce Sullivan,
Paula Gage, and Bonnie Stygar at Stockyard; and John Wagner, Diane
appeared to be credible witnesses and in view of this fact,
and in light of the aforementioned factors, I credit their
account of Cohn's July 15 threat of closure if the Union did
not consent to an election and their denial that Vaccarino
had consented to an election.
Consistent with Cohn's telephone announcement, Big
Top was closed from July 19 to July 28, Los Arcos from
July 19 to July 29, and Stockyard from July 19 to August 2.
During the periods of the closures, cleaning was performed
at each of the restaurants and applications for employment
were invited from the former Clark's employees and from
persons not formerly employed by Clark's. In addition, the
Union monitored a program whereby 32 of the former
Clark's employees sent letters to Respondent requesting
employment upon reopening of the restaurants. 4 When the
restaurants were reopened only 14 of the employees who
had sent these letters were rehired initially.5 A total of 49
former Clark's employees was rehired and 27 newly hired
employees commenced working at the three restaurants
which had been closed.6 By contrast, all of the former
Clark's employees of Featherduster and Dungeness Dans,
the two restaurants which were not closed upon assump-
tion of operations by Respondent, were immediately
rehired and began working on July 19. So far as the record
discloses, no new employees were hired when these two
restaurants commenced business on July 19.
Finally, at the hearing, Respondent amended its answer
to, among other things, admit the allegation of the
complaint that "On or about July 19, 1976 and continuing
to date, Respondent unilaterally changed the wages, fringe
benefit programs and other working conditions of the
employees in the unit described above in paragraph 5
without affording the Union an opportunity to meet and
bargain concerning said changes."
The General Counsel argues that it had been the Union's
unwillingness to agree to an election that had led Respon-
dent to act on its desire to forestall representation of its
employees and to act on Cohn's threat to Vaccarino by
closing Los Arcos, Stockyard, and Big Top, and then
attempt to diminish the Union's support by selectively
rehiring only some of the former employees, thereby also
serving warning to the rehired employees as to what could
follow from efforts to continue being represented. In
addition, the General Counsel contends that Respondent
violated the Act by not initially recognizing the Union as
the representative of the employees and by, instead,
making unilateral changes in their terms and conditions of
employment. Conversely, Respondent argues that its deci-
sion to close the three restaurants was in no way influenced
by Vaccarino's recognition demands, but was simply the
logical consequence of Respondent's normal practice of
refurbishing newly acquired facilities, pursuant to which
Massimino, Susan Osterburg. and Barbara Moore at Big Top. Subsequently.
some others were rehired. For example, Ruth Dahlgren was ultimately
rehired when, according to Veenhuizen. "volume picked up."
6 At Los Arcos 9 new employees commenced working, where 13 former
Clark's employees, 8 of whom had signed letters, were not reemployed
initially; 8 new employees commenced working at the Stockyard, where 8
former employees, 6 of whom had signed letters, were not reemployed; and
10 new employees commenced working at Big Top, where 7 former
employees. 4 of whom had signed letters, were not reemployed. Thus, of 28
former Clark's employees not rehired by Respondent initially, 18 had signed
letters under the Union's direction.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent desired to close all five restaurants and would
have done so but for the opposition of the landlords to
closure of Featherduster and Dungeness Dans. These
closure plans, contends Respondent, predated Vaccarino's
July meetings with Cohn which, as Respondent's past
dealings with the Union demonstrate, were in no way
influenced by consideration of the Union's continued
representation of the former Clark's employees. Moreover,
Respondent argues that no unfair labor practice can be
found with respect to the employees not rehired as their
preclusion from consideration for employment was based
upon nondiscriminatory criteria.
With respect to the bargaining allegations, Respondent's
position is not altogether clear. At the hearing Respondent
amended its answer to admit the factual allegations
pertaining to this facet of the case and agreed that, in lieu
of executing a partial settlement agreement concerning
these matters, I would provide remedial provisions in my
Order to cover the allegations of Respondent's refusal to
recognize the Union and of Respondent's unilateral
changes. In fact, Respondent offered into evidence, over
the General Counsel's objection, an agreement between it
and the Union, entered into in September and dated
November 24, providing that Respondent would make
contributions to the pension and to the health and welfare
funds retroactive to July 19. Thus, when the hearing closed
it appeared that all matters pertaining to the alleged
violations of Section 8(a)(5) of the Act had been resolved.
Yet, in its brief, Respondent argues that it cannot be
accused of a refusal to bargain on July 12 as it was not then
the owner of the restaurants, that it could not know prior to
actually operating the restaurants how many of the former
employees would be employed, and that, prior to ascertain-
ing that fact, it was free to set the terms and conditions
under which it would be employing employees. It further
argues that the entire complaint should be dismissed.
B. The Statements to the Employees
Although Respondent denies that Cohn had made union
willingness to participate in an election the quidpro quo for
keeping the restaurants open and while Respondent's
witnesses denied harboring any animosity toward the
Union, several comments are attributed to Respondent's
officials which controvert those denials.
As stated above, Cohn participated in meetings with the
employees of the five restaurants on July 12 and 13. The
General Counsel alleges that, during those meetings, Cohn
promised improved wages and benefits to induce the
employees to forgo supporting the Union. Cohn denied
doing so. Yet, much of the testimony shows that, during the
course of these meetings, Cohn not only enumerated
benefits constituting improvements over those which the
employees had been receiving under their Union's collec-
tive-bargaining agreements with Clark's, but also presented
those improvements as alternatives to continued represen-
tation by the Union. With regard to the former, Cohn
agreed that, during these meetings, he had recited a
number of benefits, such as paying wages equivalent to the
Seattle scale (which was higher than what the employees
had been receiving), providing employee birthdays as an
additional holiday, and providing eligibility for a profit-
sharing plan after 5 years' employment with Respondent. It
is undisputed that these constituted benefits which the
employees had not enjoyed while working for Clark's. With
regard to his reason for announcing these benefits, Cohn
did not deny the testimony of Jerry Moon and Konnie
Precious that at the Los Arcos employee meeting he had
appealed to the employees to give him a chance to prove
the adequacy of his benefits. Indeed, then-Assistant Man-
ager Deborah Hoover, who appeared as a witness for
Respondent, confirmed Moon's and Precious' descriptions
of Cohn's comments: "[H ]e felt that he was comparable to
the Union and he wanted to be given a chance." Similarly,
neither Cohn nor any other witness appearing for Respon-
dent refuted Jerri June Kyle's testimony that, at the
Stockyard employees' meeting, Cohn had said that he
wanted the assembled employees "to go along with him as
a non-Union house." Nor was the testimony of Diane
Massimino, to the effect that at the Featherduster employ-
ees' meeting Cohn had said that "he wanted us to give him
a chance before running out and voting for the Union" and
that he "wanted us to speak to him personally instead of
having the Union be the spokesman," disputed. These
comments demonstrate that Cohn was eliciting employee
support for substitution of Respondent's benefits for
representation by the Union - a conclusion only made
more evident by Cohn's added statement that he would
"still love" the employees if they chose to be represented in
an election. Clearly, there would have been no reason to
utter such an assurance if Cohn had not been campaigning
for the employees to choose a contrary course.
In defense, Respondent contends that the specific bene-
fits enumerated by Cohn during the meetings had resulted
from questions posed by employees and that their recita-
tion had not been initiated by Cohn. However, assuming
the accuracy of this contention, employers are not free to
take advantage of matters initiated by employees to make
statements unlawful under Section 8(a)(l) of the Act. See
United States Lines, Inc., 217 NLRB 117, 124 (1975), enfd.
by unpublished decision, 534 F.2d 333 (C.A. 9, 1976).
However, from the undisputed testimony, it appears that
Cohn designedly invited these questions. Thus, at the
Stockyard employees' meeting, waitress Elizabeth Fuller
testified that Cohn had said that "if there was anything
anyone wanted to know, that he could not volunteer
anything, he would have to be asked." Also in attendance
at that meeting was Kyle, who testified on cross-examina-
tion:
Q. Did he tell you that he couldn't tell you about
his benefit packages, but he could answer questions if
they were asked?
A. Yes.
Q. Did he tell you why that was?
A. Something that it was according to - that
legally he could not tell us is what he said.
Q. Did he say what legal grounds that concerned?
A. Something to do with the Union.
Accordingly, having invited the employees to ask questions
and having done so for the avowed reason that the Union
had made it impossible legally for him to provide this
information in any other context, Respondent is hardly in a
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D.R.C., INCORPORATED
position to urge that Cohn's statements regarding benefits
cannot be found unlawful because they were made in
response to the very questions which he invited.
Two other matters are of significance in appraising
Cohn's statements to the employees during the meetings.
First, not only did he appeal to the employees to forgo
support of the Union until they could experience his
promised benefits, but he also made comments pointing to
what he believed were adverse consequences of unioniza-
tion. For example, waitress Ann Sherle testified, without
contradiction, that at the Dungeness Dans employee
meeting Cohn had noted "that the Union was taking part
of our paycheck now which he would not." Similarly
uncontroverted was Precious' testimony that, at the Los
Arcos meeting, Cohn had told the employees that they
"should really be mad at the Union because we had to pay
twenty or thirty dollars initiation fee where they're now
only charging five dollars." Thus, not only was Cohn using
improved benefits to dissuade the employees from support-
ing the Union, but he was also pointing out the manner in
which employees should consider themselves disadvan-
taged by having been represented by the Union. Secondly,
both Sherle and cashier-hostess Geneva Bainard testified
that, at the Dungeness Dans employee meeting, Cohn had
said that anyone who did not want to work in a nonunion
establishment should give notice so that he could replace
them. Neither Cohn nor Vice President of Operations
Veenhuizen, who was also present at those meetings,
specifically denied that the former had made this statement
during that meeting - a statement evidencing Respon-
dent's willingness to avoid dealing with the Union even if it
meant the loss of personnel who might be quite experi-
enced.
In sum, the evidence shows that, at the July 12 and 13
meetings, Cohn announced that Respondent would insti-
tute certain benefits which constituted improvements over
those enjoyed by the employees under the union collective-
bargaining agreements with Clark's. These benefits were
announced in conjunction with appeals to the employees to
forgo continued representation by the Union and in
conjunction with statements pointing out adverse conse-
quences which unionization had visited upon the employ-
ees and requesting notices of termination from those
employees who did not desire to work without representa-
tion. Therefore, I find, as alleged by the General Counsel,
that these benefits were announced as an alternative
program to continued representation by the Union and as
a means of persuading the employees to forgo continued
representation. Accordingly, Cohn's announced improve-
ments constituted promises of benefit in violation of
Section 8(a)( I) of the Act.
The General Counsel also alleges that Respondent
violated Section 8(a)(1) of the Act when then-Los Arcos
Manager Patsy Covin, who appeared as a witness for the
General Counsel, sponsored, encouraged, and solicited
employee support of an antiunion petition. Whatever the
merits of Respondent's argument that Covin was upset
with Respondent's failure to rehire her, the fact is that
Veenhuizen did not dispute her testimony that, during the
I According to Veenhuizen, it was not until the process of selecting
employees to be rehired, after the Los Arcos had closed, was in progress that
he had made the decision that "it was time for Patsy to go."
week prior to the closure, he had shown her a letter stating,
in effect, "We, the undersigned, request the NLRB to have
a vote whether we are to go Union or non-Union," and had
directed her to have a similar document prepared and
circulated by one of the employees whom she supervised.
Covin testified that she had carried out these instructions,
ultimately transmitting to Veenhuizen a letter with approx-
imately 15 signatures. Quite clearly, such conduct, which is
consistent with Cohn's attempts to obtain the Union's
agreement to an election, constitutes unlawful interference
with the rights of employees under Section 7 of the Act.
In its brief, Respondent argues that it cannot be held
responsible for the conduct of supervisors if engaged in
prior to the time that they actually entered into an
employment relationship with Respondent, which in the
case of Covin would be never as Respondent ultimately did
not hire her. Yet, this very incident demonstrates the
infirmity of Respondent's argument. Here, Covin was
acting expressly at Veenhuizen's direction. He was an
official of Respondent. Accordingly, the fact that she was
still on Clark's payroll would not serve to shield Respon-
dent from liability for Covin's preparing and having the
petition circulated. In testing whether an agency relation-
ship exists under the Act, "the crucial question is whether,
under all the circumstances, the employees could reason-
ably believe that [the alleged agent] was reflecting compa-
ny policy, and speaking and acting for management."
Aircraft Plating Company, Inc., 213 NLRB 664 (1974). In
the instant case, all of the managers were scheduled to be
retained by Respondent.7 Covin's conduct with respect to
the petition, as well as other conduct of Covin and the
other managers, discussed below, was consistent with
Cohn's intent, announced at the employee meetings, to
operate on a nonunion basis, or to at least have an election
to ascertain if the employees desired continued representa-
tion. Accordingly, it was not unreasonable for employees
to believe that the managers' statements reflected Respon-
dent's, particularly Cohn's, sentiments. Moreover, the fact
that Veenhuizen issued directions to Covin prior to July 19
demonstrates that Respondent was at least participating in
the management of the restaurants, notwithstanding the
fact that it had not yet formally commenced operating the
restaurants. This, of course, raises considerable doubt that
other conduct of the managers had been undertaken
without consultation with and direction by Respondent's
higher officials. In these circumstances, I find that Respon-
dent's defense that it cannot be held liable for the conduct
of the managers prior to July 19 is without merit. Further, I
find that Respondent violated Section 8(aXl) of the Act by
virtue of Covin's encouragement and solicitation of em-
ployee support for a petition seeking a Board-conducted
election.
Respondent admits that Gerald LeComte had been
manager of Dungeness Dans and that at all times material
he had been a supervisor and agent of Respondent. The
complaint, as amended at the hearing, alleged that Le-
Comte had said that all employees would lose seniority
upon sale of the restaurant to Respondent and, further,
that LeComte had told employees that Respondent would
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not hire union employees. These allegations were support-
ed by the testimony of bartender Lavonna Mead, who
testified that on July 15 and 22 LeComte had said that
Respondent would be operating without a union and that
all past seniority was abrogated with the result that July 19
would serve as the initial date of employment for comput-
ing seniority. They were also supported by Assistant
Manager Donald Carnino and waitress Annie Sherle, who
testified that, within the hearing range of Sherle, LeComte
had inquired of Carnino if an applicant whom the latter
wanted to hire was "union," and, upon being told that she
was, upbraided Carnino, saying that union people were no
longer to be hired because the restaurant was to be
nonunion.8 Later, Carnino repeated LeComte's remarks to
Sherle, saying that LeComte had refused to hire the
applicant because she was nonunion.
9 Yet, Respondent did
not call LeComte as a witness nor did it explain its failure
to call him, though clearly put on notice of his significance
by virtue of the allegations pertaining to him in the
complaint and by virtue of the testimony given by Carnino
and Sherle. Therefore, that testimony stands unrebutted
and I find that Respondent, through LeComte, did violate
Section 8(a)(1) of the Act by announcing that all seniority
would be lost because Respondent would be operating
nonunion and by saying that Respondent would not hire
applicants who favored the Union.
According to Covin, during the period immediately prior
to closing, there had been a "constant undertow of talk"
among the employees concerning what would be happen-
ing. She admitted having spoken to both Vicki Buzard and
Connie Baldwin about this. Although Covin was unable to
recall precisely what she had said to Buzard, other than to
direct her to quit the discussions, Buzard testified that
Covin had said not to discuss the Union in Los Arcos and
to confine such conversations to areas off Los Arcos
property while on her own time.10 Baldwin testified that
Covin had asked her to stop talking to new employees
about the Union and had then inquired how Baldwin felt
about going nonunion. While Covin was not as specific in
describing this conversation, she did acknowledge that she
had summoned Baldwin to her office because she had
heard that Baldwin had been spreading untrue rumors
about what would happen if the restaurant became non-
union, and did describe the persons to whom Baldwin had
made such statements as "some people under 20 years old
working there." I credit Buzard's and Baldwin's accounts
of these conversations and, therefore, find that Respon-
dent, through Covin, did violate Section 8(a)(1) of the Act
by ordering employees to stop talking about the Union and
by Covin's questioning regarding how Baldwin felt about
I Although there was some discrepancy between Carnino's pretrial
affidavit and his testimony regarding statements made to him by LeComte,
this discrepancy was too general to serve to discredit him. Sherle corrobo-
rated his recitation of LeComte's comments about not hiring applicants
favorably disposed toward the Union and, of course, his testimony is
unrefuted.
9 While counsel for the General Counsel represented that he was not
contending that Camino was a supervisor, the latter's description of his
duties and authority - particularly with regard to his having selected five or
six employees to hire and fire on prior occasion - would appear to warrant
the conclusion that Carnino's authority was supervisory. Accordingly,
statements made to him would not violate Sec. 8(a)(1) of the Act. However.
Sherle overheard LeComte make these statements and, even had LeComte
going nonunion. While the latter was not alleged in the
complaint, it was litigated at the hearing and Respondent
had ample opportunity to offer evidence on this point.
Alexander Dawson, Inc. d/b/a Alexander's Restaurant and
Lounge, 228 NLRB 165 (1977).
Waitress Diane Massimino testified that, on July 17, Big
Top Manager Laurelyn "Sam" Downing had said that she
(Massimino) was terminated because the restaurant was
closing for approximately a week and that it would reopen
nonunion. In response, Massimino testified that she had
inquired if there would be any objection to her continuing
to remain a union member, but that Downing had
suggested "that I should go down to the Union and get a
withdrawal card like she had done." Massimino was not
the sole witness to such comments at the Big Top. Waitress
Barbara Moore testified that, when she had applied for
reemployment with Respondent on July 2.6, Downing had
pointed out that the restaurant would be a nonunion house,
and that when she had asked what she could do to get her
job back, dishwasher Ron Doyle, who had been present
during the conversation, had interjected that Moore should
withdraw from the Union and Downing had added that
she could only hire Moore if shown a withdrawal card.
According to Moore, Assistant Manager Deborah Lever
had been present during this conversation and on the
following day, when Moore telephoned the Big Top, Lever
had answered the telephone and, when Moore said that she
had withdrawn from the Union, Lever had replied that
"she had me on the schedule to work anyway .... "
Downing generally denied having ever told anyone that
they must withdraw from the Union to be considered for
employment with Respondent and further denied specifi-
cally having told Moore that she must withdraw from the
Union to be considered for employment. However, she did
not make a similar specific denial regarding Massimino. In
fact, she did not deny that the conversation with Massimi-
no had occurred, did not dispute Massimino's recitation of
this conversation in any respect, did not deny having told
Massimino that Respondent would open nonunion, and
did not deny having suggested that Massimino should
withdraw from the Union. Nor did Downing deny that the
conversation described by Moore had taken place and she
did not deny having heard Doyle suggest that Moore
withdraw from the Union. Moreover, Respondent neither
called nor explained its failure to call Assistant Manager
Lever, who presumably had the same supervisory authority
as Assistant Manager Carnino, to corroborate the portion
of the conversation with Moore that Downing did deny.
Both Massimino and Moore appeared to be credible
witnesses. Their descriptions of their separate conversa-
not intended for her to have listened to what he was saying to Carnino, the
statements would violate Sec. 8(aXI) of the Act with regard to her, since she
did hear unlawful comments by an agent of Respondent and the natural
effect of those remarks would tend to restrain and coerce her. Intent is not a
consideration is appraising whether statements violate Sec. 8(a)1) of the
Act. See A merican lumber Sales. Inc., 229 NLRB 414. 416 (1977). Moreover,
Camino repeated LeComte's remarks directly to Sherle anti, accordingly, if
he were a supervisor, the repetition would violate the Act. If, of course, he
were not a supervisor, LeComte's remarks would then violate Sec. 8(aXI) of
the Act as to Carnino as well.
I' There is no evidence that either Clark's or Respondent had a no-
solicitation rule in effect at Los Arcos. See Hambre Hombre Enterprises, Inc.,
d/b/a Panchiro's, 228 NLRB 136 (1977).
1414
D.R.C., INCORPORATED
tions with Downing were corroborative in that both
described similar comments being made. Those comments
- requesting withdrawal from the Union - reflected
Respondent's overall attitude concerning operating on a
nonunion basis and, accordingly, are consistent with
Respondent's general attitude during the period. Therefore,
I find that Downing did insist that these two employees
withdraw from the Union if they desired employment with
Respondent and that by virtue of such statements Respon-
dent violated Section 8(a)(1) of the Act.
Comments similar in nature were attributed to Stockyard
Manager Ann Baker. Thus, waitress Joyce Moseley testi-
fied that, on approximately June 23, Baker had said that
the employees should listen to what Cohn had to say about
the benefits of being nonunion, that the employees would
benefit as Respondent could take actions to make their
work easier, and that "when Cohn took over, that it would
be non-Union, and that if we was to remain Union, we
should be prepared to give a two weeks notice." Baker
denied having told Moseley that she should give 2 weeks'
notice if she wanted to work in a union restaurant. But, she
did not deny having discussed conditions of reemployment
with Moseley and did not deny having promised that
conditions of employment would be easier if the employees
ceased supporting the Union and became unrepresented.
Moreover, the comment regarding those who did not want
to work in a nonunion restaurant giving 2 weeks' notice
was similar to a comment attributed to Baker by waitress
Jerri June Kyle, who testified that on June 22 or 23, in the
presence of waitress Edith Dixon Carter and cashier Carol
Shultes, Baker had said that the restaurant would be going
nonunion, that employees who did not want to be nonun-
ion were to give 2 weeks' notice, that the employees did not
need a union as they had 10 years earlier, and, in response
to Kyle's question, that the employees would not be
keeping their seniority. While she denied generally that she
had told any employee that they should give 2 weeks'
notice if they did not want to work in a nonunion
restaurant and testified that she would have had no reason
to make such a comment to Kyle, Baker testified only that
she did not recall whether she had engaged in a conversa-
tion with Kyle on June 22 or 23, did not recall whether she
had ever told Kyle that the restaurant was going nonunion,
and did not recall whether she had told Kyle that she
should give 2 weeks' notice if she did not want to work in a
nonunion restaurant.
Carter and Shultes, both of whom were working at the
Stockyard under Baker's supervision at the time of the
hearing, were called as witnesses for Respondent. Shultes
testified that she did not recall participating in a conversa-
tion with Baker, Kyle, and Dixon; did not recall hearing
Baker tell Kyle that the restaurant was going to open
nonunion; did not recall Baker telling Kyle to give 2 weeks'
notice if she did not want to be nonunion; and did not
recall Baker telling Kyle or any other person that the
employees did not need a union. In reality, this testimony
does not refute Kyle's specific recitation of Baker's com-
ments, for it indicates no more than Shultes' lack of
recollection as to whether such statements were uttered by
Baker. Asked whether she would have remembered had
Baker mentioned that those who did not want to work in a
nonunion restaurant should give 2 weeks' notice, Shultes
replied only: "I would think I would recall it because we
need my paycheck, and if my job were threatened, I would
think that it would make enough of an impression that I
would recall that." (Emphasis supplied.) Further, she
conceded that the subject of operating nonunion had been
discussed by Baker, although she testified that Baker had
"always said that it was up to the employees, our vote."
Carter, however, not only acknowledged that Baker had
discussed the subject of representation once Respondent
commenced operating the restaurant, but, like Kyle, she
also testified that Baker had said that the restaurant would
open nonunion. Asked specifically about the conversation
of June 22 or 23 and about the remarks attributed to Baker
by Kyle, Carter, like Schultes, testified merely that she did
not recall having heard Baker make these statements. Since
she had not given a pretrial affidavit, Carter was testifying
purely on the basis of her unrefreshed recollection of an
event occurring approximately 9 months earlier. She did
testify that she would remember if she had heard a
statement regarding those who did not want to work in a
nonunion establishment giving notice and she based this
testimony on her belief that such a statement "would kind
of shock me...." However, such testimony reflects more
a probability or a likelihood as to what she might recall
rather than a clear recollection of what had or had not
occurred. This was made apparent by Carter herself for
when asked specifically whether she recalled whether
Baker had, in fact, made such a statement, she responded:
"I can't really say, sir. I'm sorry."
It is not beyond the realm of possibility that Baker would
single out Kyle as the object of such statements, for it is
undenied that on August 8 or 9, when Kyle appeared for a
preemployment interview, Baker had said that Veenhuizen
had issued instructions not to discriminate against Kyle
because of her union activity, and that although she was a
"union troublemaker," she was to be rehired if she
promised not to say anything about the Union to other
employees. Kyle promised not to do so and was permitted
to resume work on August 11. Moreover, the comment
regarding employees giving notice if they desired to work
in a union restaurant, which Kyle describes Baker as
having uttered on June 22 or 23, finds support from the
similar comment which Moseley describes Baker as having
made in the same time period. Further, as found above, it is
undisputed that Cohn had made a similar remark during
his meeting with the Dungeness Dans employees in July.
These factors tend to reinforce Kyle's testimony as to what
she had been told by Baker. Baker did not effectively deny
that this conversation had occurred, nor did she effectively
deny having made many of the comments attributed to her
by Kyle. Both Shultes and Carter confirmed that Baker
had stated that the restaurant would open on a nonunion
basis and neither appeared to truly recall what Baker had
said during the June conversation. Whether this was
actually a case of lack of recall or whether both were
influenced by the fact that they were continuing to work
under Baker's supervision at the time of the hearing was
not fully discernible. What was clear was that both of these
witnesses appeared hesitant when they testified and I do
not feel that either the substance or the tenor of their
1415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony will support the conclusion that Baker did not
say that employees should give notice of termination if they
wanted to work in a union house.
Therefore, I find that Baker did, as described by Moseley
and Kyle, promise increased benefits if the employees
would forgo continued representation by the Union, did
threaten employees with termination if they continued to
support the Union, and did tell Kyle that she was a union
troublemaker and was to refrain from discussing the Union
with other employees as a condition of employment with
Respondent.
C. The Closures of Los Arcos, Stockyard, and Big
Top
The above-described statements of Respondent's offi-
cials tend to demonstrate that the closure of these three
restaurants was motivated by unlawful considerations.
Thus, during his meetings with the employees, Cohn made
it clear that he did not want to operate with the Union
representing them and, in pursuance of that objective, he
promised improved benefits as the quid pro quo for the
employees going "along with him" and giving him "a
chance" to operate in the fashion which he desired. Indeed,
not only did he campaign against the Union during these
meetings, by pointing out consequences of representation
which he construed as being adverse to the employees, but
both he and Manager Baker also made it clear that
employees who did not desire to work in a nonunion
establishment were not wanted and could tender their
resignations. Respondent's willingness to resort to the
employment relationship to achieve Cohn's objective was
demonstrated both by Manager Downing's insistence that
employees withdraw from the Union to be considered for
reemployment by Respondent and by Manager LeComte's
refusal to hire an applicant recommended by Carnino
because the applicant was sympathetic toward the Union.
Similarly, Respondent's propensity to act on its hostility
was further shown when Veenhuizen directed Covin to
have circulated a petition requesting an election. These
events, as well as others recited in section IV, B, supra,
support the General Counsel's assertion that Respondent
was hostile toward the Union and that Respondent was
willing to act on that hostility in a manner that would
affect the employment status of the employees. In light of
this evidence, it is unavailing that Respondent may have
enjoyed amicable past relations with the Union at other
establishments, for it is very clear that it did not desire to
be encumbered by a bargaining representative in its
operation of these five restaurants.
The latter was shown explicitly by Cohn's admissions to
Vaccarino. Thus, as found in section IV, A, supra, Cohn
first appealed to Vaccarino for an agreement to an election,
notwithstanding the absence of any evidence that Cohn
had any doubt that the Union continued to enjoy the
support of a majority of the employees in each of the
bargaining units. Indeed, Cohn conceded that the authori-
zation cards obtained by the Union appeared to demon-
strate that the employees "did want to remain Union."
Then, unable to secure Vaccarino's agreement to an
election and faced with the Union's charge alleging a
refusal to bargain, Cohn resorted to threatening Vaccarino
with closure of the restaurants unless the latter acquiesced
to an election. When this too proved futile, Cohn then
frankly told Vaccarino that three of the restaurants were to
be closed because of what Cohn viewed as the Union's
recalcitrance. The closures of Los Arcos, Stockyard, and
Big Top were then announced on the same day as Cohn's
telephone conversation with Vaccarino and they were
promptly closed the following Monday. This sequence of
events, coupled with Cohn's statements to Vaccarino,
admitting the motivation for the closures, taken in conjunc-
tion with the statements made on various occasions to the
employees by Respondent's officials, leave little doubt that
Respondent closed the restaurants in an effort to penalize
the Union for refusing to agree to an election and to
dispose of the Union as the representative of the restaurant
employees. Respondent denies that it was motivated by
unlawful considerations in making its decision to close the
restaurants and argues that the closures were simply part of
its consistent practice of closing newly acquired restaurants
for refurbishing. Yet, the evidence presented by Respon-
dent to support this argument fails to disclose any
commitment to closure of the restaurants prior to Vaccari-
no's July 12 demand for recognition and his filing of the
unfair labor practice charge in Case 19-CA-8725, accusing
Respondent of refusing to extend recognition to the Union.
Thus, not until his letter of July 14, the same date as the
return receipt shows that the charge was received by
Respondent, did Cohn mention the subject of closure to
the Union. Even then, Cohn characterized closure as
simply "a possibility" and he acknowledged that only "in
the next few days" would a "determination" of the matter
be made. Indeed, viewed in light of Cohn's comments to
Vaccarino when they met on the following day, it is not an
unreasonable inference that these comments in the July 14
letter were designed as the opening salvo in Cohn's
campaign to use threats of closure as a means of securing
the Union's acquiescence to an election, rather than simply
to advise the Union of a contemplated course of action
unrelated to the Union's recognition demand.
True, Respondent's officials contended that efforts to
secure consent of the landlords to closure of the restaurants
had been ongoing since a point in time well prior to
Vaccarino's appearance in Cohn's office on July 12.
However, the single piece of correspondence between
Respondent and any of the landlords of the restaurants
produced at the hearing was a letter from Cohn to Richard
Eichler, shopping center division director of leasing and
operations for Allied Stores Corporation, which is responsi-
ble for leases at Northgate, where Big Top and Featherdus-
ter are located, and at South Center, where Los Arcos is
located. That letter confirms a "telephone agreement" of
the same day to the closure of Los Arcos and Big Top and
then recites the reasons necessitating Respondent's request
for closure of these two restaurants. In all regards the letter
appears very much to restate an initial request for closure
of the restaurants. Yet, it is dated July 16 - the same date
on which Cohn telephonically advised Vaccarino that the
restaurants would be closed because of the Union's refusal
to agree to an election. Consequently, the documentary
evidence does not support Respondent's defense that it had
1416
D.R.C., INCORPORATED
been negotiating for some time to obtain landlord consent
to closure of the restaurants.
Eichler did appear as a witness for Respondent, but it
quickly became evident that his recollection regarding the
dates on which he had spoken with Cohn concerning
closure of Los Arcos and Big Top was less than reliable. He
did recall having twice spoken with Cohn regarding the
matter and also recalled having requested that Cohn send a
confirming letter during the second conversation. Yet, while
it was obvious that this referred to the July 16 letter,
Eichler placed this conversation as having occurred "a
week or so prior to his take-over," thereby displaying a
tendency to overestimate the time elapsing between his
conversations with Cohn and the date on which the
restaurants were closed. This same problem arose in
connection with his testimony regarding thefirst conversa-
tion with Cohn, for, when asked on cross-examination
whether the date of the first conversation had not been a
week before the closure, Eichler replied that he did not
"think that it was that close" and that it "must have been a
couple of weeks" before the closures. However, he conced-
ed that it was "difficult for me, thinking back, to put
everything right, you know, within a day or two time-
frame" and he ultimately conceded that in August, when
his memory had been more fresh than it was when he
appeared at the hearing, he thought that he had told a
Board agent that he "wasn't sure" whether the first
conversation with Cohn had been "just one week prior to
the closure." If it had been, in fact, only 1 week prior to the
closure, that would place it as having occurred on approxi-
mately July 12 - the same day Vaccarino initially met
with Cohn and declined to reestablish the Union's majority
in an election. In view of Eichler's uncertainty as to the
dates of his conversations with Cohn and of his apparent
tendency to overestimate the passage of time between dates
which he was unable to recall precisely, I find that his
testimony cannot be relied on to establish that Respondent
had been seeking his approval to close the restaurants prior
to the date of Vaccarino's first meeting with Cohn."1
The Stockyard is located in Aurora Village. Cohn
testified that, approximately a month before July 19, he
had spoken about closing to refurbish the restaurant with
Sigmund Groch, senior vice president, real estate develop-
ment, of Continental, Inc. Groch did not appear as a
witness in this proceeding. Rather, Respondent introduced
his affidavit in which he states that in May he had
negotiated a lease agreement with Cohn for the Stock-
yard; 12 that, during these negotiations, Cohn had agreed to
clean and remodel the premises; and that it had been
understood that the restaurant would have to be closed to
satisfy this agreement. The clear import of this is that in
May Respondent had already secured the landlord's
11 Even accepting Eichler's most generous estimate concerning when he
had first been contacted regarding closure by Respondent ("a couple of
weeks" before the closures), this testimony still fails to corroborate that of
Cohn, who testified that he had first spoken with Eichler about the
possibility of a closure "approximately a month before the stores were
closed...." Moreover, in apparent haste to establish that the closure
decision had preceded Vaccanno's recognition demands, Cohn testified
initially that he had obtained Eichler's permission to close Los Arcos and
Big Top at that time. Then, apparently perceiving the inconsistency between
this testimony and his own July 16 letter, he corrected himself, testifying
that he had finally gotten Eichler's approval to close the restaurants on July
16.
consent to closure of the Stockyard. Yet, Groch's affidavit
goes on to state that Respondent had acquired the premises
"on or about July 16, 1976," and that "[slhortly thereafter I
was informed that the restaurant would be closed for the
purpose of cleaning and effecting some remodeling."
Consequently, from Groch's affidavit it appears that Cohn
had received the landlord's consent to closure well before
July and that the decision as to when to close had been left
to Cohn. Nonetheless, it was not until the restaurant was
closed that he advised the landlord of the date he had
selected. The effect of this is to both controvert Respon-
dent's defense that it had been the landlords who had
delayed selection of the date for closure and to demon-
strate that not until after Vaccarino's recognition demands
did Respondent select the date on which the Stockyard
would be closed.
It does appear that Consolidated Restaurants has closed
other restaurants which it has acquired. However, the
periods of these closures, the type of work performed
during those closures, and the money expended for that
work are all significantly different in nature from the case
during the closures of Los Arcos, Stockyard, and Big Top.
For example, Consolidated's Vice President Aitken testi-
fied that the Pilgrim's Pantry had been closed for 6 weeks
during which time $50,000 to $60,000 was spent in totally
remodeling the facility, shifting the kitchen and direction
of the cooking line, changing the dining room interior, and
adding a new waitress station; that The Pear Tree had been
closed for 4 to 6 weeks during which time $10,000 to
$12,000 had been spent remodeling and putting barnwood
on the walls; and that D's Castaway had been closed for
approximately 4 weeks, during which time approximately
$10,000 had been spent remodeling. By contrast, the only
large expenditure for the three restaurants closed in the
instant case was one for $3,269 for installation of a new
carpet in the Stockyard. All other work was performed for
a total of $1,306 at the Stockyard, $866 at Big Top and
$693 at Los Arcos. Moreover, these three restaurants were
closed but for a few days, with the longest period being 2
weeks at the Stockyard. While Respondent asserts that this
was because the landlords did not want the restaurants
closed for any longer periods, this was not corroborated by
Eichler, there is no mention of any restriction on the period
of closure in Groch's affidavit, and no other landlord
appeared as a witness to corroborate this assertion. Conse-
quently, both as to lengths of time closed and as to money
spent for work during the periods of closure, the nature of
the closures of Los Arcos, Stockyard, and Big Top displays
a significant difference from the other restaurants previous-
ly closed and refurbished by Consolidated Restaurants.' 3
Furthermore, the remodeling work performed at Pil-
grim's Pantry, Pear Tree, and D's Castaway was considera-
t2 Although Respondent asserts that the sale of the five restaurants did
not become final until July 16, there are a number of matters indicating that
the agreement for sale had become certain at a point much earlier in time.
Cohn's negotiation of a lease for the Stockyard in May is an excellent
example.
13 The only other previously acquired restaurant cited by Aitken was The
Cove. Although it had only been closed for I or 2 weeks and while only
cleaning, as opposed to remodeling, had been performed during the period
that it was closed, no detailed description was provided as to the work which
had been performed during its period of closure. Thus, it is difficult to draw
(Continued)
1417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bly more extensive than the cleaning work performed at
any of the three restaurants which were closed on July 19.
Significantly, Aitken described discussions which had
occurred in the spring and which had centered on perform-
ing similar remodeling work at four of the restaurants
involved in the instant case. Thus, he testified that
consideration had been accorded to converting Stockyard
and Los Arcos to steakhouses, to changing Featherduster
to a family "Spaghetti Factory," and to turning Big Top
into a contemporary sandwich shop. This, of course, means
that there might well have been discussions of closures
prior to Vaccarino's arrival on the scene, but that these
discussions pertained to a wholly different program than
was ultimately formulated during the week prior to the
closures. In fact, Aitken testified that these spring plans
had been abandoned due to Respondent's inability to
finance such changes and the fact that back-to-school sales
in the stores near these restaurants would be in progress. So
far as the record discloses, there were no similar discus-
sions of closures for cleaning until after Vaccarino made
his July 12 demand for recognition. In this regard, one
additional point should be noted: Aitken conceded that
Dungeness Dans had been cleaned or painted "a couple of
months" prior to the hearing, but that it had not been
closed during that period. Respondent made no effort to
distinguish the work performed at that restaurant from the
work performed at Los Arcos, Stockyard, and Big Top, nor
did it choose to explain why it had been necessary to close
these three restaurants but not Dungeness Dans when
seemingly the same type of work had been performed at
each.
In summary, the evidence shows that Respondent was
opposed to continued representation of its employees by
the Union; that it appealed to the employees to provide an
opportunity for it to show that it could provide improved
benefits without their being represented; that it sought an
election for the purpose of achieving that end; that it
engaged in unlawful activities to dissuade the employees
from continuing to support the Union and to pare union
supporters from its payroll; that it threatened to close the
restaurants if the Union did not agree to an election; that it
told Vaccarino that three of the restaurants were to be
closed because he had refused to acquiesce in Cohn's
demands for an election; that Respondent's assertion is
unsupported that there had been a decision prior to
Vaccarino's recognition demand to close at least some of
the restaurants for cleaning; that no final decision to close
any of the restaurants had been made until after it had
become apparent that the Union would not agree to
Cohn's proposal; that Respondent did take advantage of
the closures to have the three restaurants cleaned, but that
the nature of the work performed was different both from
that performed at other restaurants which Consolidated
Restaurants had closed following acquisition and from that
contemplated by Aitken in the spring when he had
proposed closure of Los Arcos, Big Top, Featherduster,
and Stockyard; and that apparently similar-type work had
any comparison with the work described as having been performed during
the periods that the three restaurants in the instant case were closed.
Moreover, Aitken conceded that a "few thousand dollars" had been spent
for the work which had been performed while The Cove had been closed.
been performed subsequently at Dungeness Dans without
the need for closure. Therefore, I find that a preponderance
of the evidence does support the General Counsel's
allegation that Respondent had closed Los Arcos, Stock-
yard, and Big Top on July 19 in retaliation for the Union's
refusal to acquiesce to an election at a time when
Respondent did not entertain a reasonably grounded
doubt of the Union's continuing majority support and in
an effort to avoid having to deal with the Union as the
representative of the employees. Respondent thereby vio-
lated Section 8(a)(3) and (I) of the Act.
D. The Refusal To Rehire Certain Employees
In section IV, C, supra, I found that Respondent
unlawfully closed Los Arcos, Stockyard, and Big Top on
July 19. It is undisputed that, but for these closures, all of
the former Clark's employees at the three restaurants
would have returned to work on July 19 as employees of
Respondent, in the same fashion as occurred at Dungeness
Dans and Featherduster. Indeed, Baker admitted as much:
"[i]f it had had to stay open in order to keep functioning,
we would have just kept the same crew on, you know, that
we had." Accordingly, all of the employees at Los Arcos,
Stockyard, and Big Top became discriminatees as a result
of the closures. As such, all of them were entitled to offers
of employment, as well as to backpay for the periods of lost
employment. Foodway of El Paso, A Division of Kimball
Foods, Inc., 201 NLRB 933 (1973), enfd. 496 F.2d 117 (C.A.
5, 1974). Rather than make such offers, Respondent
insisted that all of the former Clark's employees at these
three restaurants apply for employment in competition
with persons who had never been employed at any of the
five restaurants acquired from Clark's by Respondent.
Then, Respondent picked and chose those whom it desired
to employ. No offers of employment were made to those
whom it did not select for employment, though the number
of newly hired employees evidences the availability of
work. As they were not accorded the offers of employment
to which they were entitled by virtue of their status as
discriminatees, Respondent independently continues to
owe that obligation to those employees whom it did not
rehire when the restaurants reopened.
Furthermore, the evidence supports the General Coun-
sel's allegation that these employees were deliberately not
reemployed by Respondent as a part of its retaliation
against the Union for its refusal to agree to an election. It
should be recalled that on July 15 Cohn had threatened
Vaccarino with closure and also with rehiring only employ-
ees whom Respondent wished to rehire if Vaccarino did
not acquiesce to Respondent's demand for an election. On
all occasions prior to July 15, Respondent's officials had
assured the employees that all of them were to continue
working when Respondent commenced operating the
restaurants. For example, it is undisputed that, a day or
two after Cohn's Los Arcos meeting, Veenhuizen had told
Fergus that rumors that certain employees would not be
Quite clearly, this amount would appear to indicate that considerably more
cleaning had been done at the Cove than had been the case at any of the
three restaurants in the instant case.
1418
D.R.C., INCORPORATED
hired were untrue and that "[e]verybody will come back."
Similarly, none of Respondent's officials contradicted
Moon, Precious, and Koshak's testimony that, at the Los
Arcos employee meeting, Cohn had said that all employees
should report for work as usual after the takeover. Nor was
Fuller contradicted in her testimony that, at the Stockyard
employee meeting, an employee had asked specifically if all
of the employees were to be rehired and was told by Cohn
that they were all to be rehired. Consequently, the evidence
does show both that Respondent planned to rehire all of
the former Clark's employees and that, subsequently, on
July 15, Cohn became upset with the Union's refusal to
agree to an election and then threatened not to rehire some
of the employees in an effort to bludgeon the Union into
reversing its position. When the Union continued to stand
its ground, Respondent then carried out its threats - it
closed the restaurants and then rehired only selected
employees.
At the hearing, Respondent's witnesses reviewed their
reasons for selecting the 27 employees who were not
rehired initially. Many of the deficiencies attributed to
these employees were not disputed, although some of them
testified that they had worked for Clark's for substantial
periods of time without any complaints ever having been
made about their work. Yet "even if union activities are
only a partial motive for discharge then an 8(a)(3) violation
has been established." S. A. Healy Company, and/or Tom
M. Hess, Inc. v. N.L.R.B., 435 F.2d 314, 316 (C.A. 10,
1970). Consequently, the fact that Respondent may have
discovered valid reasons for refusing to rehire these
employees does not serve to shield it from liability for
violating Section 8(a)(3) of the Act where those reasons
were disclosed incident to carrying out a prior threat not to
rehire some employees because the Union had resisted
being forced to reestablish its majority status through an
election.
Almost half - 32 of 67 - of the former Clark's
employees sent union-sponsored letters requesting employ-
ment with Respondent. Although Respondent rehired 49 of
the former Clark's employees, only approximately one-
third of those hired had been letter writers. Over half of
those who had sent these letters were not rehired initially.
While there is no direct evidence showing that Respondent
knew that the Union had been responsible for transmittal
of these 32 letters, the virtually identical content of each
and the substantial number received by Respondent must
have made it apparent that they were generated from a
common source. The fact that, so far as the record
discloses, the Union was the only common denominator
among the employees of the three closed restaurants and
the further fact that Vaccarino had been insisting on being
accorded recognition must have made it apparent that
these employees were acting under the direction of the
Union in sending the letters. It is undisputed that Veen-
huizen did review the names of at least some of the letter
signers with the managers. While Veenhuizen claimed that
14 This was not the only inconsistency arising from Veenhuizen's
testimony with regard to the letters. In describing the purported reasons for
not rehiring certain employees, he claimed that none of the Big Top
employees, save Candy Day, had applied for reinstatement. Yet, Big Top
employees Kathy Kennedy. Rich Madden. and Thomas Lukens had been
among those who had sent the letters sponsored by the Union and, as part
he had done so because he had not been "that familiar with
the names" on the first group of letters received by
Respondent, he did not identify the signers of those letters,
and, in connection with the decisions not to hire certain of
the employees, he testified that he had been familiar with
most of the Clark's employees, as "I had worked with the
Clark organization for nine years, from 1965 until 1974. 1
had either managed or supervised every restaurant that
Clark's had, at one time." This being the fact, one wonders
why Veenhuizen would need to inquire of the managers
regarding who the persons were who were sending these
letters.14
In sum, I do not credit Respondent's defenses regarding
the reasons for not initially rehiring the 27 former Clark's
employees who were not reemployed when the restaurants
were reopened. The closures were effected in retaliation for
the Union's refusal to agree to an election. Thus, all
employees at the three restaurants were discriminatees,
entitled to employment offers by Respondent. Moreover,
as part of his effort to force Vaccarino to consent to an
election, Cohn had also threatened to be selective in
rehiring the former Clark's employees and, accordingly,
notwithstanding prior promises to rehire all of them,
Respondent then culled out those with weaker employment
histories, with an apparent eye toward those who had
signed the union-sponsored letters and with the result that
over half of those who had signed letters were not rehired
initially when the restaurants reopened. In this manner,
Cohn kept the second half of his promise to Vaccarino.
Therefore, I find that, by refusing to rehire all of the former
Clark's employees from Los Arcos, Stockyard, and Big
Top, Respondent was motivated by unlawful consider-
ations, thereby violating Section 8(aX3) and (1) of the Act.
E. The Refiusal To Bargain
Based on the answer and amendments thereto at the
hearing, it is undisputed that the five single-restaurant
bargaining units are appropriate; that the Union has
represented a majority of the employees in each of those
units and has been the exclusive collective-bargaining
representative of the employees in each unit within the
meaning of Section 9(a) of the Act at all times material;
that the Union demanded recognition on or about July 12,
but that Respondent rejected this demand; and that
Respondent unilaterally changed wages, fringe benefits,
and working conditions of the employees in the five
bargaining units on and after July 19.
In its brief, Respondent argues that since it did not
assume operational control over the restaurants until July
19 it cannot be found to have violated the Act on July 12.
At best this is sophistry, for even assuming the correctness
of Respondent's argument that it had no control over
operations of the restaurants until July 19, the complaint
does state "on or about July 12," and a difference of 7 days
is hardly a fatal variance. Moreover, as pointed out in
of his explanation for having discussed the identities of the letter signers
with the managers, Veenhuizen testified: "The people who had sent in the
letters expressed to us their intent to be rehired; so, on their applications, I
marked they had sent in a letter, 'They are asking to be rehired,' so that
when we held the interviews, they did not have to come in for a brand new
interview."
1419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
footnote 12, supra, there is considerable doubt raised by
certain aspects of the record as to the time that Respondent
was certain that it would be the purchaser of the restau-
rants. Thus, it negotiated a lease for the Stockyard in May,
it conducted a meeting with the managers in June, and it
met with the employees of the five restaurants during the
week prior to July 19. Moreover, it is undisputed that
during the week prior to the closure Veenhuizen had
directed Covin to circulate the petition requesting an
election among the Los Arcos employees. In light of these
matters, it does not appear that the General Counsel
misconstrues the date of Respondent's refusal to bargain
by placing it on July 12, when Cohn rejected Vaccarino's
first recognition demand, and, in any event, a refusal to
bargain did occur, under any state of facts, on July 19.
Respondent's second argument, that its lack of knowl-
edge as to what the composition of the employee comple-
ments of the restaurants would be on July 19 left it free to
set terms and conditions of employment without consulting
with the Union, is somewhat more substantially grounded
- at least at first blush. A majority of the Board agreed
with the holding in Spruce Up Corporation, 209 NLRB 194,
195 (1974), that:
When an employer who has not yet commenced
operations announces new terms prior to or simulta-
neously with his invitation to the previous work force to
accept employment under those terms, we do not think
it can fairly be said that the new employer "plans to
retain all of the employees in the unit," as that phrase
was intended by the Supreme Court. The possibility
that the old employees may not enter into an employ-
ment relationship with the new employer is a real one.
The Board has adhered to this position in subsequent cases.
See United Maintenance & Manufacturing Co., Inc., 214
NLRB 529, 535-536 (1974); The Boeing Company, 214
NLRB 541 (1974). Consequently, Respondent's argument
is conceptually correct. The infirmity, however, arises from
the paucity of evidence to support its assertion that the
terms and conditions of employment which constituted
changes were, in fact, finalized prior to July 19, for
Respondent presented no evidence concerning the manner
or time of Respondent's decision to make these changes. In
these circumstances, Respondent has failed to sustain its
burden of showing that the changes which it did make
were, in fact, the product of a decision made prior to July
19 or, at least, prior to Cohn's meetings with the employees.
Of course, at the time that he met with the employees,
Cohn did announce certain changes in their terms and
conditions of employment. However, as found above, these
announcements were designed to lure the employees into
forgoing continued representation so that Respondent
could achieve its ultimate objective of operating on a
nonunion basis. Indeed, Respondent presented no evi-
dence that would show that such changes had been even
considered, let alone decided upon, prior to Vaccarino's
first demand for recognition. Accordingly, the situation
presented in the instant case is not the textbook one of a
"new employer [imposing] less advantageous terms and
conditions at the time of the takeover." Little Rock Mailers
Union No. 89, 219 NLRB 707, 709, fn. 6 (1975). Rather, the
instant case presents a situation where an employer
attempts to evade having to continue recognizing a labor
organization under the successorship doctrine by following
a master plan, one facet of which is to promise improved
benefits in the hopes of bribing the employees to relinquish
support for that labor organization. It is settled that
employers are not free to avoid dealing with labor
organizations under the successorship doctrine by resorting
to the device of refusing to rehire the predecessor's
employees. See N.L.R.B. v. Foodway of El Paso, supra at
119-120. So too, employers cannot escape their obligation
to deal with labor organizations as successors through the
device of meeting demands for continued recognition with
announcements of improved benefits coupled with appeals
to the employees to forgo continued representation. To
endorse such conduct would undermine the collective-
bargaining process in this area.
Therefore, I find that it has not been shown that
Respondent's unilateral changes were formulated prior to
the time that it commenced operating the restaurants on
July 19 nor has it been shown that any improvements in
benefits were finalized and implemented without regard to
its effort to dissuade the employees from continuing to
support the Union. In these circumstances, 1 find that
Respondent violated Section 8(aX5) and (1) of the Act by
refusing to continue recognizing the Union as the represent-
ative of the employees in the five single-restaurant units
and by making changes in wages, fringe benefits, and
working conditions without prior notification to the Union
and without affording the Union an opportunity to bargain
concerning those changes.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth 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, and have led, to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
VI. THE REMEDY
Having found that D.R.C., Incorporated, engaged in
certain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
As found above, absent the unlawfully motivated closure
of Los Arcos, Stockyard, and Big Top, Respondent would
have reopened these restaurants on July 19, employing all
of the former Clark's employees who had been working at
these locations. Because of this discrimination, all of these
employees became discriminatees, entitled to offers of
employment in the "positions they held on [July 16],
without prejudice to their seniority and other rights and
privileges." Foodway of El Paso, supra at 938. Even with
respect to those employees which it did rehire ultimately,
Respondent demanded that they file applications for
employment - a requirement which no credible evidence
1420
D.R.C.. INCORPORATED
shows was imposed upon Featherduster and Dungeness
Dans employees - and at least some of them were told
that, as Respondent was a nonunion house, their seniority
was to commence as of July 19. This, of course, was a
"lesser invitation" than that imposed by the legal duty
which Respondent owed to these employees. See Hydro-
Dredge Accessory Co., 215 NLRB 138, 139-140 (1974).
Consequently, while most of the former Clark's employees
at these three restaurants were employed by Respondent,
none has ever been accorded the "normal, permanent
offer" of employment to which all are entitled and,
accordingly, both to fully remedy Respondent's unlawful
closures and to make certain that all of the affected
employees are fully apprised regarding the status to which
they are entitled, an unconditional permanent offer of
employment must be made to each. See, e.g., Kansas
Refined Helium Company, Division of Angle Industries, Inc.,
215 NLRB 443 (1974), reversed and remanded on other
grounds 547 F.2d 598 (C.A.D.C., 1976). Therefore, D.R.C.,
Incorporated, will be required to offer all employees whose
employment at Los Arcos, Stockyard, and Big Top was
terminated by the unlawful closures of those facilities on
July 19, including those former Clark's employees which it
subsequently refused to hire, immediate reinstatement to
their former positions of employment or, if those positions
no longer exist, to substantially equivalent positions with-
out prejudice to their seniority or other rights and privi-
leges, dismissing, if necessary, anyone who may have been
assigned or hired to perform the work which they had been
performing prior to July 19. Additionally, Respondent will
be required to make those employees whole for any loss of
earnings they may have suffered by reason of its unlawful
denials of employment, with backpay to be computed on a
quarterly basis, making deductions for interim earnings,
and with interest to be paid at the rate of 6 percent per
annum. F. W. Woolworth Company, 90 NLRB 289 (1950);
Isis Plumbing & Heating Co., 138 NLRB 716 (1962),
enforcement denied on different grounds 322 F.2d 913
(C.A. 9, 1963).
CONCLUSIONS OF LAW
1. D.R.C., Incorporated, is an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Seattle Local Joint Executive Board, affiliated with
the Hotel, Motel, Restaurant Employees and Bartenders
International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By promising increased wages and fringe benefits to
employees to induce them to forgo supporting the Union,
by ordering employees to cease discussing the Union, by
telling employees that all accrued seniority will be lost
because the Union will no longer be recognized as the
bargaining representative, by saying that employees who
favor the Union will not be hired, by telling employees they
must withdraw from the Union to be considered for
employment, by interrogating employees concerning their
union sympathies, by demanding that employees resign if
they do not desire to cease supporting the Union, by telling
an employee that she was considered to be a union
troublemaker, by telling an employee that she must refrain
from discussing the Union with other employees as a
condition of reemployment, and by sponsoring, encourag-
ing, and soliciting employees' support on a petition seeking
a Board-conducted election, I find that Respondent violat-
ed Section 8(a)(1) of the Act.
4. By closing D.R.C., Incorporated, d/b/a Los Arcos,
D.R.C., Incorporated, d/b/a The Stockyard, and D.R.C..
Incorporated, d/b/a Northgate Big Top on July 19, and by
refusing to offer reinstatement to the employees thereby
denied employment, Respondent violated Section 8(a)3)
and (I) of the Act.
5. By refusing on July 19 to rehire employees from
D.R.C., Incorporated, d/b/a Los Arcos, D.R.C., Incorpo-
rated, d/b/a The Stockyard, and D.R.C., Incorporated,
d/b/a Northgate Big Top, formerly employed by Clark's
Restaurant Enterprises, a division of Campbell Soup
Company, Respondent violated Section 8(a)(3) of the Act.
6. Units appropriate for collective bargaining are:
All employees employed by D.R.C., Incorporated,
d/b/a The Stockyard, Aurora Village, Seattle, Wash-
ington; excluding office clerical employees, supervisors
and guards as defined in the Act.
All employees employed by D.R.C., Incorporated,
d/b/a Northgate Big Top, Northgate Mall, Seattle.
Washington; excluding office clerical employees, super-
visors and guards as defined in the Act.
All employees employed by D.R.C., Incorporated,
d/b/a The Featherduster, Northgate Mall, Seattle,
Washington, excluding office clerical employees, super-
visors and guards as defined in the Act.
All employees employed by D.R.C., Incorporated,
d/b/a Dungeness Dans, Pier 52, Seattle, Washington;
excluding office clerical employees, supervisors and
guards as defined in the Act.
All employees employed by D.R.C., Incorporated,
d/b/a Los Arcos, South Center, Tukwila, Washington,
excluding office clerical employees, supervisors and
guards as defined in the Act.
7. At all times material since July 19 Seattle Local Joint
Executive Board, affiliated with the Hotel, Motel, Restau-
rant Employees and Bartenders International Union,
AFL-CIO, has been the exclusive collective-bargaining
representative of the employees in each of the above-
described units within the meaning of Section 9(a) of the
Act.
8. By failing and refusing on and after July 12 to
recognize and bargain with Seattle Local Joint Executive
Board, affiliated with the Hotel, Motel, Restaurant Em-
ployees and Bartenders International Union, AFL-CIO, as
the representative of the employees in each of the above-
described units, Respondent violated Section 8(a)(5) and
(I) of the Act.
9. By unilaterally changing wages, fringe benefits, and
working conditions of the employees in the aforementioned
bargaining units, without prior notification to Seattle Local
Joint Executive Board, affiliated with the Hotel, Motel.
Restaurant Employees and Bartenders International
Union, AFL-CIO, Respondent violated Section 8(a)(5)
and (I) of the Act.
1421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 15
The Respondent, D.R.C., Incorporated, Mercer Island,
Washington, and doing business under any other name in
Seattle and Tukwila, Washington, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Promising increased wages and fringe benefits to
employees to induce them to forgo supporting the Union,
ordering employees to cease talking about the Union,
telling employees that all accrued seniority has been lost
because the Union is no longer recognized as the bargain-
ing representative, saying that employees who favored the
Union will not be hired, telling employees they must
withdraw from the Union to be considered for employment
with Respondent, interrogating employees concerning their
union sympathies, demanding that employees resign if they
do not desire to cease supporting the Union, telling
employees that they are considered to be union trouble-
makers, telling employees that they must refrain from
discussing the Union with other employees as a condition
of employment, and sponsoring, encouraging, and solicit-
ing employee support on petitions seeking a Board-con-
ducted election.
(b) Closing restaurants, refusing to hire, discharging, or
otherwise discriminating against employees with regard to
hire or tenure of employment or any term or condition of
employment for engaging in activities on behalf of a labor
organization or for engaging in activity protected by
Section 7 of the Act.
(c) Refusing to recognize and bargain collectively with
Seattle Local Joint Executive Board, affiliated with the
Hotel, Motel, Restaurant Employees and Bartenders Inter-
national Union, AFL-CIO, as the exclusive bargaining
representative of the employees in each of the following
units:
All employees employed by D.R.C., Incorporated,
d/b/a The Stockyard, Aurora Village, Seattle, Wash-
ington; excluding office clerical employees, supervisors
and guards as defined in the Act.
All employees employed by D.R.C., Incorporated,
d/b/a Northgate Big Top, Northgate Mall, Seattle,
Washington; excluding office clerical employees, super-
visors and guards as defined in the Act.
All employees employed by D.R.C., Incorporated,
d/b/a The Featherduster, Northgate Mall, Seattle,
Washington; excluding office clerical employees, super-
visors and guards as defined in the Act.
1s 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, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
All employees employed by D.R.C., Incorporated,
d/b/a Dungeness Dans, Pier 52, Seattle, Washington;
excluding office clerical employees, supervisors and
guards as defined in the Act.
All employees employed by D.R.C., Incorporated,
d/b/a Los Arcos, South Center, Tukwila, Washington,
excluding office clerical employees, supervisors and
guards as defined in the Act.
(d) Making or effecting any changes in the wages, fringe
benefits, and working conditions of the employees in said
bargaining units without first giving notice to their collec-
tive-bargaining representative and affording such represen-
tative an opportunity to bargain collectively with respect to
such changes.16
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer all employees whose employment at D.R.C.,
Incorporated, d/b/a Los Arcos, D.R.C., Incorporated,
d/b/a The Stockyard, and D.R.C., Incorporated, d/b/a
Northgate Big Top, was terminated by the unlawful closure
of those restaurants on July 19, immediate and full
reinstatement to their former positions of employment,
dismissing, if necessary, anyone who may have been hired
to perform work that they had been performing prior to
July 19, or, if their former positions do not exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of pay they may have suffered as a
result of the discrimination, in the manner set forth above
in the section of this Decision entitled "The Remedy."
(b) Preserve and make available to the Board or its
agents all payroll and other records necessary to compute
the backpay and reinstatement rights set forth in "The
Remedy" section of this Decision.
(c) Upon request, recognize and bargain, effective as of
July 12, with Seattle Local Joint Executive Board, affiliated
with the Hotel, Motel, Restaurant Employees and Bartend-
ers International Union, AFL-CIO, as the collective-bar-
gaining representative of the employees in each of the
above-described appropriate units respecting rates of pay,
wages, hours, or other terms and conditions of employ-
ment, and, if an understanding is reached, embody said
understanding in a signed agreement.
(d) Post at its D.R.C., Incorporated, d/b/a The Stock-
yard, Aurora Village, Seattle, Washington; D.R.C., Incor-
porated, d/b/a Northgate Big Top, Northgate Mall,
Seattle, Washington, D.R.C., Incorporated, d/b/a The
Featherduster, Northgate Mall, Seattle, Washington;
D.R.C., Incorporated, d/b/a Dungeness Dans, Pier 52,
Seattle, Washington; and, D.R.C., Incorporated, d/b/a
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
6s This is not to be construed as a requirement that Respondent rescind
such benefits as were granted. Steel-Fab, Inc., 212 NLRB 363, fn. 1 (1974).
1422
D.R.C., INCORPORATED
Los Arcos, South Center, Tukwila, Washington, restau-
rants copies of the attached notice marked "Appendix." 17
Copies of said notice, on forms provided by the Regional
Director for Region 19, after being duly signed by
Respondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, 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 19. in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
17 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI ATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining
representative and employer have a collective-
bargaining agreement which imposes a lawful
requirement that employees become union mem-
bers.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT promise increased wages and fringe
benefits to you to induce you to forgo support of any
labor organization.
WE WILL NOT order you to cease talking about labor
organizations.
WE WILL NOT tell you that all accrued seniority has
been lost because Seattle Local Joint Executive Board,
affiliated with the Hotel, Motel, Restaurant Employees
and Bartenders International Union, AFL-CIO, will
no longer be recognized as your bargaining representa-
tive.
WE WILL NOT say that employees who favor any
labor organization will not be hired.
WE WILL NOT tell you that you must withdraw from a
labor organization to be considered for employment.
WE WILL NOT interrogate you concerning your union
sympathies.
WE WILL NOT demand that you resign your employ-
ment if you do not desire to cease supporting a labor
organization.
WE WILL NOT tell you that you are considered to be a
union troublemaker.
WE WILL NOT tell you that you must refrain from
discussing labor organizations with other employees in
order to be considered for employment.
WE WILL NOT sponsor, encourage, nor solicit your
support on petitions seeking an election conducted by
the National Labor Relations Board.
WE WILL NOT close our restaurants, refuse to hire,
discharge, or otherwise discriminate against you for
engaging in activities on behalf of Seattle Local Joint
Executive Board, affiliated with the Hotel, Motel,
Restaurant Employees and Bartenders International
Union, AFL-CIO, or any other labor organization.
WE WILL NOT refuse to recognize Seattle Local Joint
Executive Board, affiliated with the Hotel, Motel,
Restaurant Employees and Bartenders International
Union, AFL-CIO, as the collective-bargaining repre-
sentative of:
All employees employed by D.R.C., Incorpo-
rated, d/b/a The Stockyard, Aurora Village,
Seattle, Washington; excluding office clerical
employees, supervisors and guards as defined in
the Act.
All employees employed by D.R.C., Incorpo-
rated, d/b/a Northgate Big Top, Northgate Mall,
Seattle, Washington; excluding office clerical
employees, supervisors and guards as defined in
the Act.
All employees employed by D.R.C., Incorpo-
rated, d/b/a The Featherduster, Northgate Mall,
Seattle, Washington; excluding office clerical
employees, supervisors and guards as defined in
the Act.
All employees employed by D.R.C., Incorpo-
rated, d/b/a Dungeness Dans, Pier 52, Seattle,
Washington; excluding office clerical employees,
supervisors and guards as defined in the Act.
All employees employed by D.R.C., Incorpo-
rated, d/b/a Los Arcos, South Center, Tukwila,
Washington; excluding office clerical employees,
supervisors and guards as defined in the Act.
WE WILL NOT make changes in your wages, fringe
benefits, and working conditions without first giving
notice to your collective-bargaining representative and
affording that representative an opportunity to bargain
collectively with respect to such changes.
WE WILL NOT in any other manner interfere with any
of your rights set forth above which are guaranteed by
the National Labor Relations Act.
WE WILL offer all employees whose employment at
D.R.C., Incorporated, d/b/a Los Arcos, D.R.C., Incor-
porated, d/b/a The Stockyard, and D.R.C., Incorpo-
rated, d/b/a Northgate Big Top, was terminated by our
unlawful closure of those restaurants on July 19, 1976,
immediate and full reinstatement to their former
positions, dismissing, if necessary, anyone who may
1423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been hired or assigned to perform the work which
they had been performing prior to July 19, 1976, or, if
their former positions do not exist, to substantially
equivalent positions, without prejudice to their seniori-
ty or other rights or privileges, and make them whole
for any loss of pay they may have suffered as a result of
our discrimination.
WE WILL, upon request, recognize and bargain with
Seattle Local Joint Executive Board, affiliated with the
Hotel, Motel, Restaurant Employees and Bartenders
International Union, AFL-CIO, as the collective-bar-
gaining representative of the employees in each of the
units described above respecting rates of pay, wages,
hours, or other terms and conditions of employment
and, if an understanding is reached, embody such
understanding in a signed agreement.
D.R.C., INCORPORATED
1424