F.W.I.L. Lundy Bros. Restaurant, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1980

248 N.L.R.B. 415 (N.L.R.B. 1980)

F.W.I.L. LUNDY BROS. RESTAURANT, INC. 415
F.W.I.L. Lundy Bros. Restaurant, Inc. and New
York Hotel and Motel Trades Council, AFL-
CIO. Cases 29-CA-6940, 29-CA-7042, and
29-CA-71311
March 13, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On November 13, 1979, Administrative Law
Judge Marion C. Ladwig issued the attached Deci-
sion in this proceeding. Thereafter, the Charging
Party filed exceptions and a supporting brief.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein.
The sole issue raised by the Charging Party's ex-
ceptions and brief is the Administrative Law
Judge's failure to issue a bargaining order. The
Charging Party argues that the unfair labor prac-
tices committed by the Respondent have prevented
the holding of an unfettered election which could
serve as a true determination of the employees' de-
sires concerning union representation, and that,
even in the absence of a majority showing, a bar-
gaining order is the only effective remedy.
The Administrative Law Judge agreed with the
Charging Party's characterization of the Respon-
dent's activities, calling this an "exceptional" case
marked by "outrageous" and "pervasive" unfair
labor practices. N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575, 613 (1969). He summarized the
Respondent's extensive unfair labor practices, and
stated that the Respondent clearly "flaunted the
Act," particularly in its summary discharge of the
organizing committee in a meeting of employees
the day after the election.
In analyzing the Charging Party's request for a
bargaining order, the Administrative Law Judge
closely examined the Board's decision in United
Dairy Farmers Cooperative Association, 242 NLRB
No. 179 (1979), in which the Board considered the
These cases were consolidated with Case 29-RC-4435 for hearing
before the Administrative Law Judge. The Administrative Law Judge
found that the election in Case 29 RC-4435 must be set aside and a new
election held, and severed that case and transferred it to the Regional Di-
rector for Region 29 for further processing
2 The Charging Party's request for oral argument is hereby denied, as,
in our opinion, the record in this case, including the exceptions and brief,
adequately presents the issues and positions of the parties.
248 NLRB No. 57
issuance of remedial bargaining orders absent a
prior showing of union majority status in cases in-
volving flagrant unfair labor practices. He noted
that in United Dairy Chairman Fanning and
Member Jenkins stated that they would issue such
an order; Member Penello took the position that
the Board lacks the statutory authority to issue a
bargaining order in the absence of a majority
showing; and former Member Murphy and
Member Truesdale stated that, although the Board
"may well" have the authority to do so, it should
always balance the interest of preventing outra-
geous unfair labor practices with the principle of
majority rule. In that case, former Member
Murphy and Member Truesdale found that it
would be less destructive of the Act to devise ex-
traordinary remedies which would tend to restore
an atmosphere giving employees a choice for or
against union representation, rather than "risk ne-
gating that choice altogether by imposing a bar-
gaining representative" on the employees. 242
NLRB No. 179, supra. The Administrative Law
Judge also noted that former Member Murphy and
Member Truesdale did not state that they would
never impose a bargaining order in the absence of a
majority showing:
As experience dictates, we will continue to
balance these competing interests. It may be
that in some case the facts will show that the
atmosphere has become so poisoned as to pre-
clude any reasonable likelihood of ever hold-
ing an election in which we can place any
confidence, even if extraordinary remedies
were employed.3
The Administrative Law Judge specifically found
that this is such a case.
However, the Administrative Law Judge refused
to issue the requested bargaining order because a
majority of the Board has not made the determina-
tion (1) whether the Board's remedial authority in-
cludes the authority to issue a bargaining order
absent a prior showing of majority support, and (2)
whether the Board will exercise its discretion in an
extreme case such as this one to issue such an
order. He deferred to the Board's judgment as to
the issuance of the bargaining order, and recom-
mended a broad cease-and-desist order along with
several of the extraordinary remedies ordered by
the Board in United Dairy. 4
We will not issue the requested bargaining order
in this case based on the Board's decision in United
Dairy. The Administrative Law Judge considered
the Board's decision in United Dairy, but expressly
3 242 NLRB No 179, supra,. fn II
' As discussed below, we shall adopt the Administrative Law Judge's
recommended Order with certain modifications
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deferred to the Board's judgment on the questions
of the Board's authority to issue the bargaining
order and the Board's policy for doing so. Accord-
ingly, we must state the basis for our refusal.
Member Penello, as expressed in United Dairy,
takes the position that the Board has no authority
under the Act to issue a bargaining order in the ab-
sence of a majority showing. He finds that the issu-
ance of such an order would violate the principle
of majority rule which is at the very heart of the
Act.
Member Truesdale adheres to his position in
United Dairy. In so doing, on the facts of this case
he finds that, in the absence of a prior showing of
majority support for the Union, it is less destruc-
tive of the Act's purposes for a second election to
be conducted here than it is to risk negating em-
ployee choice entirely by imposing a bargaining
representative upon the employees. Additionally,
he adopts the Administrative Law Judge's recom-
mended Order providing for certain extraordinary
remedies, as modified herein.
Member Jenkins, for reasons discussed more
fully in his dissent in United Dairy, finds that the
Board has the authority to issue a bargaining order
in cases marked by pervasive unfair labor practices,
and he would do so in this case.
Accordingly, we have decided not to issue a bar-
gaining order in the instant case, inasmuch as there
is no showing that the Union here previously en-
joyed majority support in the unit. We shall, how-
ever, adopt the Administrative Law Judge's recom-
mended Order with the following modifications. 5
The Administrative Law Judge, in paragraph
2(d) of his recommended Order, provided that the
Respondent shall have the notice read to its em-
ployees, either by Owner Thiele or Manager
Bryce, or provide facilities and permit a Board
agent to read the notice to the employees. Because
Owner Thiele and Manager Bryce committed nu-
merous unfair labor practices by their speeches at
employee meetings, we will not allow the Respon-
' Member Jenkins agrees with and adopts the remedies set forth, al-
though he would also grant a bargaining order under the facts of this
case.Member Penello does not agree with the full extent of themeasures
ordered by Members Jenkins and Truesdale. The Administrative Law
Judge based his recommended Order of those remedies on the Board's
Order in United Dairy Farmers Cooperative Association, supra. As Member
Penello noted in his opinion in that case, these provisions originated in a
contempt adjudication issued by the United States Court of Appeals for
the Second Circuit in NL.R.B. v. J P Stevens & Co., Inc., er al., 563
F.2d 8 (1977), cert. denied 434 U.S. 1064 (1978). In imposing the reme-
dies in J P. Stevens, the Second Circuit noted that the company had been
involved in 17 prior Board and court cases, and that this was not the first
time it had been found in civil contempt. The court termed that respon-
dent "the 'most notorious recidivist' in the field of labor law." 563 F.2d
at 13 While extraordinary remedies are clearly appropriate in the cir-
cumstances presented here, Member Penello does not believe that 11 of
these contempt remedies should be indiscriminately adopted in Board
cases, particularly where the respondent has no history of recidivism
dent the option of having a Board agent read this
notice to the employees, but will order that it be
read by either Owner Thiele or Manager Bryce.
"As it is clear that Respondent's unlawful cam-
paign emanated from the top, so, too, must reassur-
ances that this campaign will end come from the
top." United Dairy, 242 NLRB No. 179, supra, fn.
14. Accordingly, we shall require that the Board be
afforded a reasonable opportunity to provide for
the attendance of a Board agent.
Referring to "the possible unduly harsh effect on
the Respondent's business," the Administrative
Law Judge expressly omitted the United Dairy
remedy of requiring the Respondent to publish in
the local newspapers of general circulation a copy
of the notice "two times per week for a period of 4
weeks." We will add this requirement to the rec-
ommended Order. This measure is a necessary part
of the remedy because it serves to "emphatically
. . .inform employees of their Section 7 rights and
assure employees that Respondent will respect
those rights." United Dairy, supra. Any resulting
hardship to Respondent's business is, as the Admin-
istrative Law Judge noted, merely speculative, and,
in any event, it is only proper that the burden be
shouldered by Respondent, the wrongdoer, rather
than by the injured employees.
In all other respects, we adopt the Administra-
tive Law Judge's recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, F.W.I.L.
Lundy Bros. Restaurant, Inc., Brooklyn, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph 2(d):
"(d) At such reasonable time after entry of this
Order as the Board may request, convene during
working time, and by departments and shifts if nec-
essary, all employees at the restaurant and, at its
option, have the attached notice marked 'Appen-
dix' read to the employees by either Owner Thiele
or Manager Bryce. The Board shall be afforded a
reasonable opportunity to provide for the atten-
dance of a Board agent."
2. Insert the fol;owing as paragraph 2(e) and re-
letter the remaining paragraphs accordingly:
"(e) Publish in local newspapers of general circu-
lation copies of the attached notice marked 'Ap-
pendix.' Such notice shall be published twice
weekly for a period of 4 weeks."
3. Substitute the attached notice for that of the
Administrative Law Judge.
F.W.I.L. LUNDY BROS. RESTAURANT, INC. 417
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge, suspend, transfer
to a less desirable work station, or otherwise
discriminate against employees for supporting
New York Hotel and Motel Trades Council,
AFL-CIO, or any other union.
WE WILL NOT threaten to close the restau-
rant if the Union is voted in.
WE WILL NOT hold up union organizers to
ridicule and scorn, or threaten to find a way to
discharge them.
WE WILL NOT tell employees not to discuss
the Union during nonworktime in nonwork
areas on the premises of the restaurant.
WE WILL NOT threaten to discharge employ-
ees for supporting the Union.
WE WILL NOT coercively question employ-
ees about union support or union activities.
WE WILL NOT create the impression that
employees' union activities and union meetings
are under surveillance.
WE WILL NOT threaten to take reprisals
against employees or to take away overtime,
allowances, or other benefits if the Union
comes in.
WE WILL NOT circulate, or urge employees
to sign, a petition to have an employee dis-
charged for organizing the Union.
WE WILL NOT distribute, or permit the dis-
tribution of, during worktime, any antiunion
pamphlet threatening to close the restaurant or
to take away benefits if the Union is voted in.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their right to self-organization, to form,
join, or assist New York Hotel and Motel
Trades Council, AFL-CIO, or any other
union, to bargain collectively through repre-
sentatives of their own choosing, and to
engage in other concerted activities for the
purposes of collective bargaining or other
mutual aid or protection, or to refrain from the
exercise of any or all such activity.
WE WILL offer Juan Diaz, Ernest Lawson,
Herbert Lindsay, Cyril Murray, Daniel Rosen-
berg, Edward St. Vil, Edmundo Sanchez, and
Derman Spence immediate and full reinstate-
ment to their former jobs or, if their jobs no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
other rights and privileges previously enjoyed,
and make them whole for any loss of earnings
or other benefits resulting from their dis-
charge, or from any suspension or transfer,
plus interest.
WE WILL send all our employees copies of
this notice; WE WILL read this notice to all
our employees; and WE WILL publish copies of
this notice in local newspapers twice weekly
for a period of 4 weeks.
WE WILL, upon request of the Union within
1 year, send the Union a list of the names and
addresses of all current employees.
WE WILL, immediately upon request, grant
the Union and its representatives, for posting
of union notices, reasonable access to our bul-
letin boards and all places where we post no-
tices.
WE WILL, immediately upon request, grant
the Union and its representatives reasonable
access to our restaurant to give employees the
Union's views on unionization, orally and in
writing, during breaks, mealtimes, and other
nonwork periods.
WE WILL, if we speak to any employees in a
group on the question of union representation,
give the Union reasonable notice, permit two
union representatives an opportunity to be pre-
sent, and, upon request, give one of them
equal time and facilities to reply.
WE WILL, if the Board schedules another
election in which the Union is a participant,
permit, upon request, at least two union repre-
sentatives to speak to employees for 30 min-
utes on working time, not more than 10 work-
ing days nor less than 48 hours before the elec-
tion.
WE WILL apply the four paragraphs immdia-
tely above for a period of 2 years from the
date of this notice or until the Board's Region-
al Director certifies the results of a new elec-
tion, whichever comes first.
All our employees have the right to join New
York Hotel and Motel Trades Council, AFL-CIO.
or any other union, or to refrain from doing so.
F.W.I.L. LUNDY BROS. RESTAU-
RANT, INC.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge:
These consolidated cases were heard in Brooklyn, New
York, on July 18-20 and 24-26,1979.1 The charges were
filed by New York Hotel and Motel Trades Council,
AFL-CIO, herein called the Union, on January 15, Feb-
ruary 26 (amended on March 12), and April 11, and
complaints were issued on March 5, March 30 (amended
at the hearing), and May 31, respectively. The petition in
the representation case was filed on December 19, a con-
sent election agreement was signed on March 16, and an
election was conducted on April 5. Excluding I void
ballot and 18 challenged ballots (insufficient in number to
affect the results of the election), the vote was 44 for,
and 68 against, union representation. On July 11, the
complaint cases were consolidated for hearing with cer-
tain timely objections filed by the Union in the represen-
tion case.
The primary issues include whether F.W.I.L. Lundy
Bros. Restaurant, Inc., herein called the Company or the
Respondent,2 (a) made repeated threats to close the res-
taurant to dissuade union support; (b) discriminated
against the three union committeemen who led the orga-
nizing, held them up to ridicule and scorn, and, I day
after the election-before an assembled group of employ-
ees-unlawfully discharged all three of them, together
with a fourth employee whose photograph taken with
them had appeared in the union newspaper; (c) discri-
minatorily discharged four other union supporters; (d)
threatened to discharge union organizers and other em-
ployees for supporting the Union; (e) threatened reprisals
and the loss of overtime, allowances, and other benefits;
(f) engaged in repeated coercive interrogation; (g) cre-
ated the impression of surveillance of union activities and
meetings; (h) instituted an unlawful rule prohibiting dis-
cussion of the Union on the premises of the restaurant;
(i) urged employees to sign an antiunion petition; and (j)
distributed a coercive antiunion pamphlet, threatening
the closing of the restaurant and the loss of jobs and
privileges, all in violation of Section 8(a)(1) and (3) of
the National Labor Relations Act; and (k) also engaged
in other misconduct interfering with a free choice in the
election.
The Company denies committing any unfair labor
practices. The General Counsel contends that the Com-
pany committed such "outrageous" and "pervasive"
unfair labor practices to undercut the Union's organiza-
tional drive at the restaurant that certain extraordinary
remedies, delineated in United Dairy Farmers Cooperative
Association, 242 NLRB No. 179 (1979), are necessary as
they were there to counteract the effects of the cam-
paign of lawlessness. The Union contends that "A bar-
gaining order must be part of any meaningful remedy
due to the flagrant and pervasive unfair labor practices."
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
' All dates are from October 1978 through July 1979 unless otherwise
indicated.
2 The name of the Company w'as corrected at the hearing.
ation of the briefs filed by the General Counsel, the
Company, and the Union, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a New York corporation, is engaged in
operating a restaurant at Sheepshead Bay in Brooklyn,
New York, where it annually purchases lobsters and
other food and materials valued in excess to $50,000 di-
rectly from outside the State and derives gross revenue
in excess of $500,000. The Company admits, and I find,
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company operates the famous Lundy's seafood
restaurant at Sheepshead Bay. Lundy's has a seating ca-
pacity of over 1,000, and employs about 143 waiters,
hostesses, bartenders, busboys, and kitchen personnel.
A large percentage of the waiters and other dining
room and kitchen personnel were hired as aliens from
the West Indies and Latin America. As testified by one
company witness, waiter Harold Sterling, "Lundy was
built for minority. And the most of us that's come here,
like illegal, Lundy's employ us until we get our papers
and we is here working."
In late November, waiters Cyril Murray, Ernest
Lawson, and Herbert Lindsay-being disgruntled with
puportedly "bad" working conditions, including the
Company's practice of charging a waiter $100 for each
"walkout" or other lost check-sought representation by
the Union. At the time, waiters were being paid the
minimum wage, which was $1.75 an hour after the de-
duction of the tip allowance. The waiters' compensation
was reduced further by the repeated collections being
taken up on the job to assist other waiters in paying the
$100 for each lost check to avoid discharge, and to assist
sick or injured employees in the absence of any sick
benefits or health insurance. Other working conditions
relevant to the issues are discussed later.
On December 4, Murray, Lawson, Lindsay, and eight
or nine other employees met at the Union's office in
Manhattan, signed union authorization cards, and made
plans for conducting the organizational campaign. (As
discussed later, 6 of these 11 or 12 employees-Murray,
Lawson, Lindsay, Juan Diaz, Edmundo Sanchez, and
Derman Spence-are alleged to have been thereafter dis-
criminatorily discharged or "laid off.")
In the organizing which followed the December 4
union meeting, Murray, Lawson, and Lindsay were as-
sisted by dishwasher Diaz and clam opener Sanchez,
both of whom solicited Spanish-speaking employees to
sign cards, by waiter Edward St. Vil, who spoke in
French to his coworkers from Haiti, and by waiter
Spence. (Diaz was "laid off" on December 10, St. Vil
was discharged on December 31, Spence on February
17, and Murray, Lawson, Lindsay, and Sanchez on April
F.W.I.L. LUNDY BROS. RESTAURANT, INC. 419
6. The eighth employee alleged to have been illegally
discharged, on March 3, was bartender Daniel Rosen-
berg.)
B. Initial Discrimination and Coercion
1. Interrogation, threats, etc.
In early December, after the December 4 meeting,
Headwaiter Charles Reid began going from station to
station in the dining room and making notes in a red no-
tebook. As waiter Lawson credibly testified, he over-
heard Reid asking the waiters who had signed the union
authorization cards, and "Whom did you get these cards
from?" Lawson also overheard Reid say that "the Union
is no good for the restaurant, because they tried it before
and all the men who signed the card were fired." Reid
went to all of the day waiters, including Lawson himself,
and continued thereafter to interrogate employees about
the Union. (Reid denied interrogating or threatening em-
ployees and denied making any notes about the Union in
his red diary-which was not produced at the hearing.
He did not impress me as being a candid witness, and I
discredit the denials. Lawson impressed me as being an
honest witness). I find that Reid's interrogation was coer-
cive, and that his statement about men being discharged
previously when they tried to form a union was at least
an implied threat to discharge the employees if they sup-
ported the Union, I therefore find that the Company
thereby unlawfully interrogated and threatened employ-
ees with discharge in violation of Section 8(a)(l) of the
Act.
On December 13, Headwaiter Reid revealed his
knowledge of the December 4 meeting. When waiter
Lindsay called in sick, Reid asked, "Do you know what
happened? They're going to close the restaurant down.
Some men are going to close the restaurant down."
Lindsay asked what he was talking about, and if he
meant the owners. Reid responded, "No, not the owners
. .some men went up to West 4th Street to a Union,
and they want to close the restaurant down." (Reid
denied spying or doing anything that would be consid-
ered spying, but did not deny this conversation.) I find
that Reid's statement about the December 4 meeting cre-
ated the impression that the Company was keeping the
union activities and meetings under surveillance, thereby
interfering with the exercise of the employees' Section 7
rights in violation of Section 8(a)(1) of the Act.
Although Headwaiter Reid denied interrogating and
spying on the employees, he revealed-upon cross-ex-
amination by the union counsel-the Company's early
knowledge of the union activity. He testified that "on
and off," from "maybe about October" until he saw the
Union's (December 15) recognition request, "people"
came and told him about the Union. He testified that he
heard that Murray, Lindsay, and Lawson had been to a
meeting at the union office, and admitted hearing that
they "were calling waiters to go with them to the meet-
ings." Reid added, "I heard Mr. Murray say he had his
spies, a secret organization, who tell him things. I had my
own who told me things [emphasis supplied]." Reid
thereafter testified:
Q. Oh by the way, going back to the question
about spies, did the spies ever tell you who was
going to these meetings at the union office?
A. No response.
Q. But there were meetings at the union office
that Mr. Murray was asking people to come to?
A. The names didn't matter.
Q. But the spies told you that there were people
going to these union meetings?
A. Right.
Q. Even though the names didn't matter to you,
did they mention any names?
A. Sometimes.
I consider this testimony in evaluating the denials that
the Company was aware of the union activity of Diaz,
Spence, and Sanchez, all three of whom attended the
December 4 meeting.
Headwaiter Reid continued to interrogate the waiters
about their union support. On December 21 (6 days after
the Union had its recognition request hand delivered to
the Company), waiter Murray made a written note of
that particular date when he saw Reid going around
asking waiters who had joined the union and writing
down something on a scratch pad. Two days later on
December 23, immediately after Manager Bryce held an
employee meeting (discussed later), waiter St. Vil was
standing and talking with waiter David Andre and two
other employees in the dining room when Reid ap-
proached. As St. Vil credibly testified, Reid "was telling
us that the way things are going right now are fine . .
there is no way we should get involved with the Union.
And that it's only going to cause us to be out of a job."
In the coversation, Reid asked if the employees had
signed the cards, asked for "their point of views," and
tried to discourage them from joining the Union. And
that it's only going to cause us to be out of a job." In the
conversation, Reid asked if the employees had signed the
cards, asked for "their point of views," and tried to dis-
courage them from joining the Union. I find that this
continued interrogation about whether the employees
had signed union cards and about their support of the
Union was coercive, and that the statement that getting
involved with the Union was "only going to cause us to
be out of a job" was another implied threat of discharge.
I therefore find that this interrogation and threat further
violated Section 8(a)(1) of the Act.
Concerning Reid's credibility, he not only denied in-
terrogating and threatening the employees, but he
claimed disinterest in the organizing. He answered
"Never" when asked if he made known whether or not
he wanted a union, and claimed, "I couldn't care less. It
didn't make a difference," and "I was not concerned. I
never have given it a thought or a feeling." However, at
one point, Reid admitted that, when employees expressed
their ideas whether they liked the Union or not, "Yes I
would" talk to them about what he himself felt. Despite
his claim, "I never have given it a thought," he admitted
asking Robert Thiele (a member of the Lundy "Family"
and the chief beneficiary of the Lundy estate) what
Thiele thought about the Union. According to Reid,
Thiele answered that the Family was not "interested in
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[the] union, period. They were interested in cash, prof-
its."
In evaluating Headwaiter Reid's credibility, I have
also considered the testimony of company witness Ster-
ling, who admittedly talked to Reid daily, who admitted
promising Reid to be one of the main ones "that's going
to campaign against the Union coming in here," and who
(sometimes in the presence of Reid and the part-time an-
tiunion waiter, Douglas Bourne, discussed later) cam-
paigned against employees joining the Union, contending
"if you're illegal [aliens], and the Union come in, you're
out." (Emphasis supplied.) Contrary to Reid's testimony,
Sterling acknowledged that "[s]ure," he discussed with
Reid who Reid felt would vote for the Union, how
many votes the Union would get, and how many votes
would be against the Union; and acknowledged that he
talked about this "[w]ith everybody, not Reid alone, ev-
erybody." (Sterling later denied that he talked to Reid
about who was going to vote one way or the other, testi-
fying that "[w]e discussed only about the union busi-
ness.") At one point, when Sterling was asked, "Did Mr.
Reid ask you how you were going to vote?" Sterling an-
swered, "Yes, but I wouldn't tell him." Later, Sterling
denied that Reid asked him how he was going to vote,
testifying, "He cannot ask me that. I can tell him what
I'm going to vote, but he can't ask me." (Although Ster-
ling-who testified before Reid did-gave testimony be-
lying some of Reid's testimony, Sterling appeared on the
stand to be deliberately attempting to help the Compa-
ny's cause.)
2. Discrimination against organizers
a. Transfer of Lindsay
On Saturday, December 9-5 days after the December
4 union meeting-the Company began discriminating
against the three principal organizers.
Waiter Lindsay had been a waiter since 1971 and was
regularly assigned to station 4, which was at a good lo-
cation in the first section. As a dinner waiter, his starting
time (the time when his wages began) was 5 p.m. He re-
ported to work about 3 p.m., signed for his checks, and
was going to his station when Captain Norman Stultz (in
Headwaiter Reid's absence) told him that he should not
go to station 4. Lindsay asked why, and Stultz said that
Manager Bryce told Stultz to put Lindsay on station 28,
which was at the back of the second section. Lindsay
asked for the reason, and Stultz "said that the manager
told him that they had gotten complaints, about my per-
formance." Lindsay asked what complaints and Stultz
said "the manager didn't tell him what was the complaint
. He was just told to put me in the back." Lind-
say was never permitted to return to his regular station
and was never informed of the nature of any complaints
against him. Except during the week when the second
section was closed, Lindsay was required to work at the
back, even when there were empty stations between sta-
tion 28 and the first section. (I note that waiter Sterling,
a company witness, acknowledged on cross-examination
that the stations "[w]ay in the back" are "punishment"
stations.)
The change of stations not only took Lindsay away
from his regular customers, but placed him at the back of
a section which closed early, and at a station which was
cold in the winter and where few customers would sit.
This resulted in a reduction in his hours of work and a
loss in tips. (Before the organizing drive began that
week, Lindsay had never been changed to the rear of the
second section.)
The Company's defense for the transfer was testimony
by Headwaiter Reid (who was absent that Saturday) that
Reid did "[n]othing whatsoever" different for Lindsay
than he "might have done for any other waiter." Captain
Stultz (who executed Manager Bryce's order to transfer
Lindsay) was not called to testify, and Bryce denied be-
lieving that he reduced Lindsay's hours. (I discredit
Bryce's denial. His credibility is discussed later.)
I find that, under all the circumstances, the General
Cousel has established a case of discrimination. Manager
Bryce ordered that waiter Lindsay be suddenly trans-
ferred from his choice first section station-without any
specific reason given-within 5 days after Lindsay at-
tended the December 4 union meeting and began solicit-
ing signatures on union authorization cards. Meanwhile,
Headwaiter Reid had made a systematic investigation of
the union activity and union meeting and admittedly had
spies reporting to him about them. Thereafter, until
Lindsay's discharge on the day after the April 5 election,
the Company refused to allow him to return to his regu-
lar station. I find that the Company, with knowledge of
Lindsay's union activity, discriminatorily transferred
him, reducing his hours of work and income, to discour-
age membership in the Union in violation of Section
8(a)(3) and (1) of the Act.
b. Actions against Murray and Lawson
On the same Saturday, December 9, Captain Stultz
went to the other two principal organizers, waiters
Murray and Lawson, about 4:45 p.m. when the evening
business was just beginning to come in and suspended
them for the remainder of the day without giving any
reason. Stultz merely told Murray that Manager Bryce
"said that we should take a half [day off] this evening,"
and informed Lawson that Stultz "had been told by the
management to take my book and send me home for half
a day's work." Saturday evening is the busiest time of
the week, and the Company has not suggested any de-
fense for suspending the two union organizers. I find that
the suspensions were clearly discriminatory in violation
of Section 8(a)(3) and (1) of the Act.
c. "Layoff"' of Diaz
On December 10 (I day after discriminatorily transfer-
ring or suspending the three principal organizers), the
Company "laid off" dishwasher Diaz, who also attended
the December 4 union meeting, and who, speaking in
Spanish, was soliciting kitchen personnel to sign union
authorization cards.
At the time, as discussed below, there was a consider-
able amount of overtime being worked by the dishwash-
ers. However, on this Sunday evening, as Diaz credibly
testified, Assistant Manager Eddie Doll approached him,
F.W.I.L. LUNDY BROS. RESTAURANT, INC. 421
told him that business was not too good, and "I'm going
to give you layoff." Diaz was never recalled. (Doll did
not testify.)
Diaz, an alien from Ecuador, had been employed as a
dishwasher in 1971. After 2 or 3 months, he was made
head dishwasher until 1976 when he was assigned to
work as a steward, in charge of liquors, dishes, plates,
and glasses. In November 1977, the Company permitted
him to go to Ecuador "to get my residence . . . a
green card." His return was delayed by Immigration
until May 1978, when he was assigned to work again as
a dishwasher, at a higher wage because of his prior ser-
vice. (He was being paid $3.50 an hour, whereas the
other dishwashers were paid the minimum wage, $2.65
an hour.) His job was taking clean dishes from the wash-
ing machine, placing them in order for the waiters, and
"rotating the [other dishwashers] to different sections"
where "they should stand" to "place the dishes in the
washers."
On December 10, there were eight other dishwashers:
J. Augustin, L. Castro, Edzer Charles, J. Denis, M. Jac-
ques, V. McFarlane, J. Paul, and B. Voley. (The four re-
maining employees on the dishwasher payroll, G.C. Exh.
22, as testified by Officer Manager Gil Williams, were
porters L. Louis and J. Aurele and bakers J. Bruno and
G. Pierce.) Together, the nine dishwashers were working
a total of 52 hours of overtime (beyond 44 hours a
week).
During the following week, ending December 17
(G.C. Exh. 23), Diaz' position was filled by one of the
other dishwashers, who in turn was replaced by a newly
hired dishwasher, A. Abraham, who worked 15-1/2
hours of overtime that week (59-1/2 hours). The total
number of hours worked by the dishwashers that week
was up from 417 to 467 hours, and the overtime was up
over 57 percent, from 52 to 82 hours. During the next 2
weeks, ending December 24 and 31, the number of dish-
washers was reduced from nine to eight, and the over-
time totaled 61 and 86.5 hours, respectively. In that last
week in December, instead of recalling Diaz, the Compa-
ny hired dishwasher S. Williams, who continued to work
until the week ending February 25 (see G.C. Exhs. 25-
29).
Even more overtime was required during the third and
fourth weeks of January following the annual vacation
shutdown (from January 2 through 14). Still employing
only eight dishwashers, including the newly hired Wil-
liams, the Company paid-at time and a half-for 118
hours of dishwasher overtime during the week ending
January 21 and 113 hours the following week. Whereas
nine dishwashers (including Diaz) had worked a total of
417 hours during the last week Diaz was employed, the
eight dishwashers (excluding Diaz) worked a total of 470
and 465 hours, respectively, during the third and fourth
weeks of January. Thus, the Company not only bypassed
Diaz and hired a new dishwasher after Christmas, but
was paying for excessive overtime to keep Diaz off the
payroll. (I note that the Company was concerned about
the cost of the overtime. In Manager Bryce's regular
Thursday meeting with employees on March 8, he com-
plained about paying for 200 hours of overtime and
losing money in January.)
The Company raised a number of defenses for laying
Diaz off. Manager Bryce testified that "Business was
really falling off drastically" and "labor cost was simply
too high." (He ignored the documentary evidence that
he was raising the labor cost by paying for excessive
overtime hours instead of reinstating Diaz.) He testified
that he gave instructions for a list to be prepared "in
order of seniority of the employees in every department,
so that I could determine who would be laid off until the
summer season started again," and "on the list that I got,
Diaz appeared as the most junior or [at] least [as]having
been employed as a dishwasher the least amount of ime
[emphasis supplied]." (By so testifying, Bryce was recog-
nizing only Diaz' service as a dishwasher and ignored his
years of seniority as head dishwasher and steward. Even
so, Office Manager Williams admitted at the hearing that
dishwasher Denis, Paul, and Voley-who were retained
when Diaz was "laid off'-were employed after Diaz'
return in May 1978.)
As a further defense, Manager Bryce claimed that he
himself (not Assistant Manager Doll, who did not testify)
had personally laid Diaz off. Bryce claimed that he told
Diaz:
..that I had to lay him off and that probably it
would be good for him to take a little rest and that
if or when I should say-that when the business
picked back up in the spring, if his health was
better, and if he could bring me a note from his
doctor saying he was . . . physically capable of
doing the work, that I was hoping I could put him
back on as soon as the business picked up again.
. . . I was very careful that he understood [emphasis
supplied] about the note from his doctor to come
back to work when he . . . was in good enough
shape to resume work, which was a pretty physical
job, that I would be very glad to have him come
back to the restaurant.
For a number of reasons, I find this testimony to be a
complete fabrication. As Diaz credibly testified, it was
Doll-not Bryce-who told Diaz that he was laid off.
Moreover, Diaz speaks and understands very little Eng-
lish and had to testify through an interpreter. Admittedly
Bryce had previously experienced difficulty in communi-
cating with Diaz without an interpreter, yet Bryce is
claiming that he was "very careful that [Diaz] under-
stood" concerning a doctor's note, etc. (I closely ob-
served Bryce's demeanor on the stand. Throughout his
testimony, he appeared willing to fabricate whatever tes-
timony might seem plausible to support the Company's
cause. I therefore reject the Company's contention that
Bryce "was a most reliable" witness, and that "It is in-
conceivable" that he "would perjure himself." Diaz, on
the other hand, impressed me as being an honest, forth-
right witness. I credit Diaz' testimony that he did not
even talk to Bryce on December 10.) Concerning Diaz'
health, he had gone to a hospital the previous summer
for treatment of high blood pressure, and a doctor there
had prescribed some pills which caused him to be dizzy
at work one day, requiring him to take the day off. A
private doctor then took him off the pills, and he there-
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after-for several months before his "layoff'--had no
trouble at work with high blood pressure. (At the time
of hearing, his blood pressure was normal.) When he was
"laid off" nothing was said about his health. Later, when
he asked the kitchen supervisor, Raoul Badillo (who did
not testify) about the layoff, Badillo told him not to
worry, that he needed a rest, and that the Company
would call him back in April or May-something the
Company did not do. (Diaz had not requested time off
for a rest; if he had needed some rest, the restaurant was
already scheduled to be closed for the annual vacation
shutdown during the first 2 weeks of the year.)
When Office Manager Williams was asked on direct
examination, "Was Mr. Diaz fired?" he at first frankly
admitted, "Yes." Thereafter, apparently realizing that
this answer would hurt the Company's cause, Williams
reversed himself and testified that Diaz was not fired, but
laid off. (It is clear that Williams understood the differ-
ence when he first admitted that Diaz was fired. When
asked by company counsel if he knew the difference,
Williams answered that "[Il]aid off ... generally means
you will be rehired at a later date if work is available.")
Despite the Company's knowledge of the union activ-
ity and the December 4 union meeting attended by Diaz
(from Headwaiter Reid's unlawful interrogation and his
admitted spy system), Manager Bryce claimed that he
never knew that Diaz attended a union meeting, signed a
card, or had anything to do with the Union. Yet on
April 6, the day after the election when he was discharg-
ing the principal union organizers, Bryce revealed his
knowledge of Diaz' connection with the Union. As cre-
dibly testified by waiter Murray, Bryce told the assem-
bled employees in his office that "this man here Juan
Diaz, he join the union and then after he lost his job he
went to the union to get a job and the union chase him
away."
Upon considering all of the evidence and circum-
stances, I find it clear that the purported "layoff" of
dishwasher Diaz on December 10 was in fact a discrimi-
natory discharge, and that the Company had no intention
of recalling him. I therefore find that his discharge, to
rid the restaurant of this union solicitor of the Spanish-
speaking employees, violated Section 8(a)(3) and (11 of
the Act.
C. Threats and Coercion at the December 23 Meeting
On December 19, the Union filed a petition for an
election. On December 23, Manager Bryce called a spe-
cial meeting of the employees.
Meanwhile, on December 15, the Union sent the Com-
pany a recognition request in which the Union officially
designated waiters Murray, Lindsay, and Lawson as
"members of [the] union committee" in an effort to stop
the unlawful discrimination which Manager Bryce had
begun against them on December 9 (as found above). Al-
though the letter claimed that the Union represented a
majority of the employees, the General Counsel does not
contend that a majority had signed valid union authoriza-
tion cards.
The special meeting was held for about 45 minutes be-
tween 4 and 5 p.m. About 50 or 60 employees were in
attendance.
Interrogation, ridicule, and threat of discharge: The
meeting began when Manager Bryce held up and read a
blank union card, and asked, "How many of you signed
one of these cards?" Nobody answered. Bryce thereafter
held up a copy of the Union's December 15 recognition
request, began reading it, and read off the names of the
union committeemen, asking who they were. As Murray,
Lindsay, and Lawson each responded, Bryce instructed
them to stand near him, facing the other employees. He
required them to stand there throughout the remainder
of the meeting. When Murray asked to say something,
Bryce told him to shut up, "If you say anything, I'll give
you a week off on the street." Bryce stated that these
were the three men who were forming the Union and
that they had nothing to offer the employees. He talked
against the Union and asked the assembled employees
whom they wanted to run the restaurant, himself or
these "three jokers," or "clowns." Bryce tore up the
union card and recognition letter and threw them on the
floor. (Murray picked up the pieces, G.C. Exh. 4.) Later
in the meeting, one of the waiters held up his hand and
asked if he could say something. Bryce answered yes and
the waiter (who did not testify) asked, "Are you going
to fire these men because of the union?" Bryce answered,
"No, but I will have a way to fire them." (In defense to
this credited testimony, Bryce claimed that
"[a]bsolutely," the only purpose he had for calling
Murray, Lindsay, and Lawson up to the front of the
group of employees was "to identify them to the other
employees . . . so that if any other employees had ques-
tions as to which employees they should [see] to sign a
card, they should go to them," because "I wanted the
employees to have a free and clear chance to sign a
union card"; that he did not call them jokers or clowns;
that he merely tore up the union card, recognition letter,
and also his notes for the meeting, and routinely tossed
them on the side stand for the busboy to clean up later;
that he emphatically denied to the employees that he
would fire the committeemen or anyone else for union
activity; and that he listed things for which they could
be fired. As corroborating witnesses, the Company called
Headwaiter Reid, who gave much discredited testimony;
waiter Sterling, an antiunion campaigner who impressed
me as being somewhat more forthright, but who, as indi-
cated above, gave conflicting testimony and appeared to
be deliberately attempting to give testimony which
would help the Company's cause; and two waiters,
Edwin Grant, who is also employed for the Lundy
Family outside the restaurant, and Alexander Saunders,
another antiunion employee, both of whom impressed me
as being most untrustworthy as witnesses. None of these
five defense witnesses appeared to be doing their best to
give a full and factual picture of what happened.)
Before discussing other parts of the December 23
meeting, I find that the continued interrogation concern-
ing who had signed union cards was coercive and fur-
ther violated Section 8(a)(1) of the Act. I find that the
Company also violated Section 8(a)(1) by holding com-
mitteemen Murray, Lindsay, and Lawson up to ridicule
and scorn by requiring them to stand throughout the
meeting in front of the other employees, threatening to
suspend Murray for a week if he said anything, referring
F.W.I.L. LUNDY BROS. RESTAURANT, INC. 423
to them as "jokers" or "clowns," and tearing up the
union card and recognition letter and throwing them on
the floor in contempt for their union activity. I further
find that, although Bryce denied at the meeting that he
intended to discharge the three committeemen for their
union activity, he made it clear to the assembled employ-
ees that he did intend to discharge them in reprisal at
some time in the future (as he later did, on the day after
the election). I therefore find that this was an unlawful
threat of discharge in violation of Section 8(a)(l) of the
Act.
Threats to close the restaurant: In the December 23
meeting, as committeeman Lawson credibly testified,
Manager Bryce told the assembled employees that "the
family know that I'm having this meeting here. And they
don't want any Union in this restaurant." Turning to As-
sistant Manager Doll, Bryce asked, "Ed how long was
the restaurant closed when the Union tried to come in?"
Doll answered that it was in the late 1950's, and that the
restaurant was closed for 6 months. Then, as committee-
man Murray credibly recalled, Bryce said that "the
owners would rather . . . close the restaurant and pay
· . . what they paid the last time, $24,000, for six months
than to bring a union in there." (Bryce positively testi-
fied, "No," there was not any comment at the December
23 meeting by anyone regarding the restaurant's closing,
and added, "If there was, it may have been a question as
to the vacation closing." I discredit this testimony as a
further fabrication.) Contrary to the denials, I find that
Bryce made it clear in this employee meeting that the
Family would probably close the restaurant rather than
have a union. I therefore find that this was a coercive
threat of closure in violation of Section 8(a)(1) of the
Act.
Threats of lost benefits and reprisals: Finally, in the De-
cember 23 meeting, Manager Bryce made the threats
that, even if the Union did get in and the restaurant did
not close, he would be more strict on us," there would
be no more overtime, "Who's going to look after your
Christmas bonus?" and "Who is going to pay $5 for the
cleaning of your jackets?" and pay their clothes
allowance. He concluded by saying, "Okay, let me hear
no more of this nonsense." Contrary to the denials, I find
that these threats to treat the employees more strictly
and to eliminate the overtime, and the implied threats of
eliminating the Christmas bonus, jacket-cleaning pay-
ments, and clothes allowance, if the Union came in and
the restaurant did not close, constituted coercive threats
of lost benefits and reprisals and violated Section 8(a)(1)
of the Act.
D. Disruption of Organizing Drive
The evidence shows that this December 23 meeting
and the December 29 meeting (in which Owner Thiele
also threatened to close the restaurant, as discussed later)
were the turning points in the Union's organizational
drive.
An estimated 20 or 30 of the employees who had
signed union authorization cards approached the union
committee (waiters Murray, Lindsay, and Lawson) and
expressed fear that the restaurant would close. Some of
the employees wanted to withdraw their cards. Others
stated they wanted to destroy the cards or to get out
"because I don't want the restaurant to close." Many of
them refused to sign or turn in their cards, stating that
they would lose their jobs and "couldn't get any jobs
outside." Some of the employees-referring to Headwait-
er Reid's practice of interrogating employees and taking
notes about who had signed authorization cards-ex-
pressed the desire to disassociate from the Union because
of a list of union supporters in the manager's office.
Many of the employees even stopped speaking to the
committeemen, and particularly to Murray, who, as the
most active organizer, was a "marked" man. (Whenever
Headwaiter Reid was talking to a group of waiters and a
committeeman would walk up, they would stop talking.)
E. Continued Threats To Close the Restaurant. etc.
On December 29, Manager Bryce called another em-
ployee meeting which was also attended by Owner
Thiele. Bryce began the meeting by urging the employ-
ees to stay away from the Union. Then Thiele spoke to
the employees. He said that the Family did not want a
union there, that the restaurant could not afford a union
at that time, and that, if the union came in, the restaurant
would have to be closed and the place could be turned
into a parking lot or garage. He said that the Family
wanted to keep the restaurant running in order that the
men would have jobs. He also singled out committeeman
Murray, commenting "Mr. Murray, I know that you are
pro-union." (Thiele did not testify, and Bryce did not
testify about this meeting.)
Following the December 23 and 29 meetings, Head-
waiter Reid and Captain Stultz made repeated references
to the restaurant's closing if the employees joined the
Union.
On one occasion, about II a.m. on Friday, January 19
(when Headwaiter Reid was scheduled to be off), com-
mitteeman Lawson saw Reid in the first section of the
dining room with several waiters who were talking
against the Union. Lawson overheard Reid telling the
employees that "[t]here was a meeting last night," and
that "if it wasn't" for "Bob Thiele they would have
closed the restaurant" because of "these men trying to
bring the Union in here and the Union cannot help us.
That Union don't suit this restaurant." (None of the em-
ployees in that group testified.) That afternoon, Captain
Stultz was in the second section checking the waiter's
schedule (Resp. Exh. 5) with Assistant Manager Doll
looking on. Stultz called Lawson over and warned him
that "the restaurant is going to close because you men
bring Union here," and that "you are going to go on
until some of these men beat you up." (Neither Stultz
nor Doll testified.)
Sometime in February, as waiter Spence credibly testi-
fied, Headwaiter Reid told Spence near the main en-
trance in the dining room that "we don't need no union
at this place because if we get union . . . it would close
and everybody would be out of a job"; that Manager
Bryce "don't need no union"; and that committeeman
Murray had been "trying to get union in this place a
long time and it didn't work out."
Finally, at one of the Thursday meetings in March,
Manager Bryce himself made another reference to the
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restaurant's closing. He told assembled employees that
the Family had "agreed to open the restaurant because I
gave them the assurance that you big men will vote" for
no union. I find that this, as well as the statements made
by Thiele, Reid, and Stultz, threatened the closure of the
restaurant if the Union came in, thereby further violating
Section 8(a)(1) of the Act.
In this same meeting, as committeeman Lawson credi-
bly testified, Manager Bryce again threatened to dis-
charge him and the two other committeemen. Waiter E.
Marshall (one of the first signers of the February 10 peti-
tion (G.C. Exh. 10) which demanded the discharge of
only one of the committeemen, Murray, as discussed
below) asked, "What happened to the three men?"--re-
ferring to Murray, Lindsay, and Lawson. Bryce said that
yes, "they will be fired." At this point Lawson took
from his pocket a piece of paper and pencil to make a
note of the time this statement was made. Bryce looked
at him, called his name, and stated, "You will be fired. I
will find a way to fire you that the Union has nothing to
do with it." The employees laughed. I discredit the den-
ials and find that these continued threats also were in
violation of Section 8(a)(l) of the Act.
F. Further Discrimination Against Union Supporters
1. December 31 discharge of St. Vil
On December 31, 2 days after Owner Thiele met with
the employees and threatened to close the restaurant if
the Union came in, the Company discharged waiter
Edward St. Vil for an obvious error in his sign-in time
on the timesheet. St. Vil had been serving as an inter-
preter for the union organizing committee-soliciting, in
French, coworkers from his native Haiti to sign authori-
zation cards. At the time, Headwaiter Reid was inlerro-
gating employees about who had signed cards, and who
had been doing the soliciting. None of the employees
whom St. Vil solicited had signed a card.
The food checker in the kitchen keeps the timesheet,
which the Company uses both for payroll purposes and
to account for guest checks issued to the waiters. The
practice is for the day waiters (serving both lunch and
dinner) to sign the timesheet (opposite the numbers of
the checks which the checker issues them) before 12
noon, when the checker withdraws the timesheet until
2:45 p.m. At that hour, the "dinner" waiters (whose pay
begins at 5 p.m. unless authorized by the headwaiter to
begin setting up or serving customers at 4 p.m.) would
be in line to sign in. It is necessary for the dinner waiters
to line up at that time in order to be assured of getting a
"book" of tickets and to be assigned a station. (Excep-
tions are made for the senior waiters, and for the "favor-
ites"-waiters who pay the headwaiter a larger share of
their tips for the privilege of signing in later and for as-
signment to better stations.) After signing in the 2 or
more hours before the official starting time, the dinner
waiters either wait upstairs or proceed to their assigned
stations and work "off the book" (i.e., for tips without
wages) until 5 O'clock. It is customary for the day wait-
ers to sign in the starting time, opposite their signatures,
in the column headed "On" (either signing "12" for noon
or "11" if they are authorized to come in an hour earlier
to set up). However, it is not necessary for the dinner
waiters to fill in the starting time, because all of them are
paid from 5 o'clock unless the headwaiter authorizes and
writes in "4" for an extra hour of pay. In practice, some
of the dinner waiters did write in "5" in the "On"
column, and other dinner waiters-including St. Vil-
generally did not, leaving the "On" column blank for the
headwaiter (or sometimes, the checker) to fill in the
proper time. Checker Guillermo Authur credibly testi-
fied that it was the responsibility of the checker "to
notice which is the last" day waiter signing in before
noon (in order that a "5" would be shown for the first
dinner waiter signing in), and Headwaiter Reid admitted
that it "is my responsibility at all times when I am on
duty," and the responsibility of the captain in his ab-
sence, "to see to it that the waiters get their right time."
In practice, the headwaiter closely monitors the "On"
column (as well as filling in the "Off" column for the
waiters), and frequently makes changes in the starting
time to show the approved time for payroll purposes.
Thus, if either the waiter or the checker filled in the
wrong time-such as putting down "12" instead of "5"
for a dinner waiter-it would be caught immediately by
the headwaiter (or captain in his absence) who has the
waiter schedule (Resp. Exh. 4) listing the starting times
for the different days of the week.
Waiter St. Vil had been a waiter there about 5-1/2
years. He was a student who generally worked 40 hours
a week. Since July, he had been working as a dinner
waiter on Fridays, when Captain Stultz was the acting
headwaiter in Reid's absence. (As found above, both
Stultz and Reid were repeatedly telling the employees
that the restaurant would close if the employees joined
the Union.) On Friday, December 29, someone filled in
the wrong time (a "12" instead of a "5") opposite St.
Vil's signature on the timesheet immediately after the
name of the last day waiter on the sheet. (As St. Vil cre-
dibly testified, he generally did not fill in the time him-
self.) He proceeded to work the full shift and "nothing
happened"; no one said anything to him about the wrong
starting time.
The following afternoon, Assistant Manager Doll told
St. Vil that he could not work. He asked why, and Doll
said, "You'll find out when you meet Mr. Bryce," who
would be in about 6 O'clock. That evening St. Vil talked
to Manager Bryce who told him about the wrong time
but flatly refused his request to see the timesheet, telling
him, "No this is my business. This is not your business."
Not even recalling if he signed in a starting time that
previous afternoon, he protested that "It couldn't
happen" because "it wouldn't make any sense . . . how
do you expect to come at 2:00-3:00 O'clock and sign at
12:00.... It can't be possible." As St. Vil further credi-
bly testified, "At first I wasn't too sure whether I did it,
but then [Bryce] kept saying, I did it, I did it" and "I
finally had to give in. You know, he's the boss.... I try
to go along with it, because . . . I can't beat him" and
"from the way he talked, from his expression I could see
that I was on the way to get fired." When St. Vil "ad-
mitted" it, Bryce responded, "I have to talk to the cap-
tain" (Headwaiter Reid), and "give him the final word."
The following day, Sunday, December 31, Reid dis-
F.W.I.L. LUNDY BROS. RESTAURANT, INC. 425
charged St. Vil, telling him that "It's been confirmed,"
that Reid had seen the timesheet himself, and that St. Vil
had "signed the wrong time." (In its brief, the Company
contends that St. Vil admitted on cross-examination sign-
ing in 5 hours earlier than he actually began work, but
his actual testimony was, "I did sign in incorrectly.
That's what I was told. . . . That's what I was told." He
also credibly testified on cross-examination that the mis-
take "might be from the [food checker] trying to put in
your time and put in the wrong thing." I note that St.
Vil was obviously in error in recalling the date to be De-
cember 28.)
The two persons who would have personal knowledge
of who filled in the wrong starting time for St. Vil that
day (the food checker and Captain Stultz, the acting
headwaiter) were not called to testify. (The Company
did call checker Arthur, but he was a busboy on Decem-
ber 29, and had no knowledge of the incident.) Instead,
the Company called Manager Bryce and Headwaiter
Reid who gave conflicting testimony about what hap-
pened.
Bryce claimed that on Saturday, December 30, "Mr.
Reid, did in fact come to my office, we did in fact, dis-
cuss the St. Vil situation and examine the time sheet"
and "I said well, it looks like that is it. Go downstairs
and tell St. Vil he is in fact fired." In direct conflict,
Reid testified that he "did not review" the timesheet,
that he took no part in St. Vil's discharge, and that he
was told by Captain Stultz that St. Vil was fired. Bryce
further claimed that about 5 or 10 minutes later (after the
discharge), St. Vil came to his office and asked about
being fired, "And I said St. Vil you cheated on the sign
in sheet and I can't allow that and you are fired for sign-
ing in the wrong time. And he said, but it was just a
joke." (St. Vil, who impressed me as an honest, forth-
right witness, credibly testified that nothing was said
about a joke.) Bryce also claimed that he had no person-
al knowledge of whether St. Vil was involved in the
Union.
After weighing all of the evidence, I agree with the
General Counsel's explanation for the conflict between
Manager Bryce's and Headwaiter Reid's testimony. After
arguing that the Company "was seeking a reason to ter-
minate St. Vil, who had served as a translator for
Murray and Lindsay in connection with the Union
drive," the General Counsel "submits that Bryce consult-
ed Reid as the individual with the most thorough knowl-
edge of the union sympathies of the waiters" (Reid
having engaged in continued unlawful interrogation of
the waiters about who were soliciting employees to sign
cards, as St. Vil was doing). The General Counsel then
contends that Reid, attempting to conceal the fact that
he discussed St. Vil's union activity with Bryce before
the discharge, "for this reason . . denied his involve-
ment" (claiming that he heard about the discharge from
Captain Stultz).
Because of the manner in which the headwaiter (or
acting headwaiter) closely monitors the sign-in times on
the waiter timesheet, making frequent changes to show
the approved time for payroll purposes, I find it most un-
likely that Manager Bryce would have believed that
waiter St. Vil had deliberately falsified his sign-in time. I
discredit, as another fabrication, Bryce's version of his
conversation with St. Vil about the discharge, also dis-
credit his denial of knowledge of St. Vil's union organiz-
ing and find that the reason given for the discharge was
pretextual. Accordingly, I find that the Company discri-
minatorily discharged this union supporter to discourage
membership in the Union, thereby violating Section
8(a)(3) and (I) of the Act.
2. January 26, 2-day suspension of Lawson
One morning before his January 29 suspension, com-
mitteeman Lawson heard that Captain Stultz was looking
for him because the cashier said Lawson had a check
missing. (Before going to the Union, Lawson had to pay
$100 for a lost check.) Upon arriving at work, Lawson
asked Stultz about it and Stultz answered, "Oh, they find
the check." Following that, Lawson began asking for
customer receipts; Assistant Manager Doll accused him
of stealing the receipts; Lawson vehemently protested;
and Doll told him, "Don't go to work until you see Ed
Bryce." Later in Manager Bryce's office, Bryce asked
him why he was collecting receipts, told him "The re-
ceipts are the property of the restaurant," and comment-
ed, "You have a lawyer" (referring to the Union's coun-
sel), "and my lawyer instructs me that the receipts are
the property of the restaurant." Bryce suspended him for
2 days and wrote a note to the file asserting that he sus-
pended Lawson "due to his illegal and unexplained pos-
session of restaurant property-'receipts.' I took this
action with no reference to Mr. Lawson's union activi-
ties and would have similarly dealt with any other like
incident to any employee. Advice of counsel was re-
ceived by phone from Mr. Robert Ferris" (the Compa-
ny's counsel).
At the hearing Manager Bryce again gave fabricated
testimony, claiming at first, "I actually think Eddie Doll
suspended him." Bryce later admitted suspending
Lawson himself.
I find that this suspension of the union committeeman,
without prior warning and after reference was made to
the union counsel, was discriminatorily motivated to dis-
courage union support and violated Section 8(a)(3) and
(1) of the Act.
3. February 17 discharge of Spence
Manager Bryce and hostess Jacqueline Nazario gave
conflicting, and clearly fabricated, testimony in defense
of the Company's Saturday night discharge of waiter
Derman Spence following an argument between Spence
and the hostess. Spence's union support was well known
in the restaurant. He, along with discharged employees
Diaz, Lawson, Lindsay, Murray, and Sanchez, attended
the December 4 union meeting about which Headwaiter
Reid received information from his "spies," as discussed
above. He took authorization cards to the restaurant and
assisted in the organizing. Some of the antiunion waiters
argued with him about his union support, one of them
telling him, "You shouldn't be arguing too much about
any union, because you know the manager have your
name in the office." Two waiters, Sterling and Bourne
(discussed later), who actively campaigned against the
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and who were frequently conferring with Reid
during the campaign, talked to Spence in Reid's pres-
ence, Sterling attempting to "discourage Spence not to
go in the Union." I discredit the denials by Reid and
Bryce that they were aware of Spence's union activity.
On Saturday evening, February 17 (a busy night in the
restaurant when all three sections were open, nearly all
of the seats were taken, and customers were waiting to
be seated), waiter Spence had "cut" only one ticket,
serving one couple. Three days before, Headwaiter Reid
had assigned him to a cold, drafty station in the front
corner, near the main entrance, and some of the custom-
ers were reluctant to sit there. As Spence credibly testi-
fied, he finally spoke to hostess Nazario, asking "why
don't you try to put some people" on his station; "if you
don't try to seat anybody, nobody will sit there." How-
ever, "she didn't pay me no mind." Later, when she was
on the other side of the dining room, he picked up some
menus and invited some customers to his station. (This
was admittedly against the rule, but, as acknowledged by
waiter Sterling, "A lot of us take chance and do it,"
without being fired.) Seeing what was happening, Na-
zario walked over, took the menus, and seated the cus-
tomers elsewhere. Upon returning, she went up behind
Spence and said, "[W]hen you learn to have some man-
ners, you will get some people sit in your station." He
then said, "F- you." (There were no customers nearby,
and he did not believe the only waiter-about 10 or 12
feet away-overheard it.) An argument followed, and he
admittedly called her a "red-neck" (defined in Webster's
New Collegiate Dictionary as "a white member of the
Southern rural laboring class"; Nazario testified she did
not know what it meant). Nazario then went upstairs.
About 5 or 10 minutes later, Manager Bryce and Assis-
tant Manager Doll came down to Spence's station and,
without asking him his version of what happened, Bryce
asked for his book of guest checks and said, "You can go
see [union committeeman] Murray now." Spence asked,
"For what?" and Bryce answered, "You know."
Manager Bryce admitted on the stand, "I was there
present" at the time of the discharge and did not specifi-
cally deny telling Spence, "You can go see Murray
now," but he claimed that it was Assistant Manager Doll
who "took [Spence's] book from him." I note, however,
that in the memorandum which Bryce prepared the fol-
lowing week about the incident, with a copy to Compa-
ny Counsel Ferris, Bryce omitted any reference to his
own presence, stating that "Ed Doll witnessed the entire
incident and fired D. Spence on the spot." Citing Nazar-
io's testimony to the contrary, the General Counsel con-
tends that this claim that Doll witnessed the incident
firsthand is clearly "fabricated."
Hostess Nazario, while giving much conflicting testi-
mony on the stand, impressed me as a witness attempting
to conceal what actually happened. She not only disput-
ed Spence's version, but gave testimony which conflicted
with her own written report of the incident and conflict-
ed with Manager Bryce's testimony and with other parts
of her own testimony.
According to Nazario, Assistant Manager Doll did not
witness the incident. (She testified that when she talked
to Doll, "he asked me who was the waiter" and "I point-
ed him out." She thereby disputed Bryce's memorandum,
sent to counsel, stating that "Ed Doll witnessed the
entire incident.") Nazario claimed that Spence also
cursed Doll before being discharged. (She testified that
Spence told Doll, "F- you," or something like that, and
on cross-examination, "Yes," he told the assistant man-
ager, "F- you." Undoubtedly, if this had happened, she
would have mentioned it in her report written that same
evening, and Bryce-who admittedly was present-
would have so testified and included it in the memoran-
dum, a copy of which he sent to the company counsel.)
According to Nazario, Manager Bryce was not even pre-
sent at the time of Spence's discharge. (I find that her
testimony to this effect-in conflict with the testimony
given by both Spence and Bryce-can be explained by
the fact that she herself was not present at the time of
the discharge. She testified on direct examination, "I
called Eddie Doll" and pointed out Spence; then "I went
to the ladies room" upstairs, and "I didn't come back
down . . . they told me not to go downstairs and work
anymore." On cross-examination, she testified to the con-
trary that after she had gone upstairs, one of the hostess-
es "told me to go downstairs"; that they had gone-she
did not know where-and gotten Doll; that she went
downstairs; that Doll "came over to me" and "asked me
what had happened"; and that she told him and pointed
out Spence. I credit Spence's testimony that she went
upstairs and was not present when Bryce and Doll came
downstairs and Bryce took his book. I therefore find that
her testimony about pointing out Spence, Doll's asking
Spence if he had spoken "to this young lady like this,"
Spence telling Doll "F- you," and Doll stating, "Give
me your book . . . you're fired" was all fabricated.)
Concerning the circumstances, Nazario's own testimo-
ny is highly contradictory. After testifying that the inci-
dent happened "I'd say between 9:00 and 10:00 O'clock,"
she variously testified: "Yes," she had occasion to put
customers at Spence's station that evening; "Of course,"
all of his tables were full, "His station wasfull up. He had
about one or two tables may be vacant and he wanted to
put somebody there. The people didn't want to sit there.
But he had customers at his tables, yes"; he had "Maybe
one or two tables" empty, "He had customers, the whole
night. He just wanted to be greedy about it"; "I sat people
there and they would get up and move" but "Not many"
people got up and moved that night; "He had plenty of
customers",' "No," she did not remember anybody else
not wanting to sit there that particular evening; between
6 and 9 p.m., "They were full; between 7 and 9 p.m., his
tables were full "practically all the time"; and "Yes," a
large majority of the time. (Emphasis supplied.) Yet,
elsewhere she testified that she did not know which or
how many tables were at his station; "He must have had
at least three or four tables"; "Yes," she could see the
station from her hostess table "but I wasn't looking at his
station. I was too busy to be looking at his station the
whole night"; and "I don't remember" how many cus-
tomers were at Spence's station at the time of the inci-
dent, "I didn't look to see tables." Particularly in view of
the documentary evidence (the timesheet-G.C. Exh.
21-showing that Spence "cut" only one check that
---
F.W.I.L. LUNDY BROS. RESTAURANT, INC. 427
evening), I find it obvious that she was giving fabricated
testimony.
Concerning the incident itself, she appeared on the
stand to be demonstrating her own use of a salty vocabu-
lary, rather than factually recounting the words which
Spence used. She acknowledged, "Of course I curse,
who doesn't?"
In her report (which she wrote immediately after the
incident, and which the General Counsel contends was
"written for the purpose of building a case against
Spence, a known union adherent," as discussed below),
hostess Nazario had stated that, after taking the menus
from Spence and seating the customers, "I came back"
and "I asked him what was wrong with him, and he re-
plied for me to 'kiss his a-,' 'you f-ing white bitch,'
and also called me a 'red neck.' So I cursed back at him
and told him that I was going to report it to the man-
ager, and he replied that he didn't 'give a f-."' (Spence
credibly denied using the above-quoted profanity. He im-
pressed me as being an honest witness, attempting to
give accurate testimony.)
On the stand she went much further. She claimed that,
as she was walking back to her station, Spence "just
started cursing at me," saying "Why didn't you put them
at my table?" and using the language: "you f-ing white
bitch," "red neck," "f--ing red neck," "mother f-er,"
"kiss my f-ing a- "kiss my f-ing black a- you white
bitch, red neck," and "I don't give a f- who you tell."
She also claimed (although not mentioned in her written
report) that he threatened her, testifying that Spence said
"he was going to kick my a-, "I'm going to hit you, "
"if anything happened that he was going to beat me up
when he got ouside," "he told me he was going to kick
my a- when I went outside," "I'll kick your a-, I'm
going to get you if you do this and that to me." She fur-
ther claimed (although also not mentioned in her report
at the time) that "[h]e swung at me and everything," yes,
in front of all the people; that "he went like this to me
. . I don't remember which hand it was . . . but I did
see his hand up in the air," and "he went like this . . .
and somebody grabbed his hand," restraining him from
hitting her. (No eyewitness was called to corroborate her
testimony about the cursing, threats, and the attempted
assault.) I find that Nazario greatly exaggerated Spence's
cursing and find that the threats and attempted assault
(credibly denied by Spence) were a further fabrication.
Hostess Nazario gave conflicting accounts of the cir-
cumstances for her writing the report on the incident.
She first testified that, after she went to the ladies' room
and did not come back down, "[T]hat's when they [em-
phasis supplied] told me" to write down what had hap-
pened. (This could have referred to Manager Bryce and
Assistant Manager Doll talking to her about the incident
before they went downstairs, where Bryce discharged
Spence without getting his version of what happened, as
Spence credibly testified.) She next testified that "I be-
lieve it was Mr. Doll" who told her to make it out. Her
next version was that "Mr. Doll had sent one of the girls
requesting that I write what I wrote down." Next she
testified that "they" told her to write down exactly what
happened, and that she asked "him" if she could say ex-
actly what Spence told her, and "he" said to write down
exactly what happened. Later she testified, "I believe it
was Eddie Doll" who told her to write the report, and
she denied that he said that it was "in case anything hap-
pened . . . as far as the discharge of Mr. Spence." She
claimed that he told her to draw it up "[I]n case any-
thing happened to me . . . because [Spence] threatened
to hit me, or beat me up when I got out of work, or
something like that "-despite the fact that she put noth-
ing in the report about a threat.
Contrary to hostess Nazario's denial that she was in-
structed to draw up the written report to justify Spence's
discharge, I find that that clearly was the purpose. After
weighing all of the evidence, I infer that she reported
her argument with Spence to both Manager Bryce and
Assistant Manager Doll, and that Bryce immediately
went downstairs with Doll and discharged Spence (a
well-known union supporter), telling him, as Spence cre-
dibly testified, "You can go see [union committeeman]
Murray now." Thereafter, as a defense to an anticipated
charge of discriminatory discharge, the Company pre-
pared the memorandum of the incident, attaching Nazar-
io's report, to company counsel, and not only omitted
from the memo any reference to Bryce's being present at
the discharge, but fabricating the statement that "Ed
Doll witnessed the entire incident and fired D. Spence
on the spot." Then at the hearing, Nazario gave much
fabricated testimony in the Company's defense (as found
above), but undercut part of the Company's Doll-wit-
nessed-it-and-did-the-firing defense by acknowledging
that Doll had not been present during her argument with
Spence-although she claimed that Doll, instead of
Bryce, took Spence's book and discharged him. Then,
when Bryce was called to the stand, he abandoned the
planned defense that "Ed Doll witnessed the entire inci-
dent and fired D. Spence on the spot," and admitted
being present himself at the time of the discharge. (I note
that Nazario's fabricated testimony about Spence's tables
being full, or practically full that evening-contrary to
the documentary evidence that he had had only one
order-suggests that she had deliberately kept customers
from his station, contrary to her denial on direct-exami-
nation that she had any reason "not to put customers at
his station that evening." However, I find it unnecessary
to decide whether an inference should be drawn that she
been instructed to discriminate against him when seating
customers, thereby provoking the incident.)
After considering all the evidence and circumstances
and the Company's fabricated testimony and shifting po-
sitions, I find that Manager Bryce seized on Spence's use
of some profanity (after breaking a rule in attempting to
get some customers at his station) as a pretext for the dis-
criminatory discharge of this well-known union support-
er in violation of Section 8(a)(3) and (1) of the Act.
4. March 3 discharge of Rosenberg
On Saturday, February 24, exactly I week after Man-
ager Bryce discriminatorily discharged waiter Spence,
bartender Daniel Rosenberg delivered a drink to Bryce
in his office. Upon receiving the drink, Bryce comment-
ed-without any explanation-that this would be Rosen-
berg's last week working there. Thinking at first that
Bryce was merely kidding, Rosenberg responded, "Mr.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bryce, you once told me . . . no one is indispensable."
Thereafter, Rosenberg had reason to be concerned. He
had signed a union authorization card in January; he had
questioned other bartenders four or five times about
whether they were interested in the Union; he had told
Union Vice President Roy Broomfield-in the presence
of another bartender when Broomfield was a customer at
the bar-that he had signed a card, and then had openly
discussed the union benefits with the union official for
about 10 minutes; and, he recalled, shortly before this
Feburary 24 conversation with Bryce, he had been told
by bartender John Palladino that Assistant Manager Doll
said that Rosenberg was "up to my neck in Union," and
that Doll "would like me to be replaced."
A week later on Saturday, March 3, Rosenberg was
working at the front bar when Assistant Manager Doll
assigned him to work with a new bartender that after-
noon at the service bar in the kitchen. Finding that some
heavy cleaning was necessary at the service bar, Rosen-
berg put a waiter's jacket over his white shirt, and had
the jacket on when he was called to the telephone.
About 5 or 10 minutes after Rosenberg returned to the
service bar, Doll came into the Kitchen and "said that
Ed Bryce told me to tell you that you have been fired."
Rosenberg asked why and, as he credibly testified, Doll
said that Bryce "saw me with the jacket," and "I should
not have had the jacket on" in the dining room (As
mentioned, Doll did not testify. Rosenberg impressed me
most favorably as a sincere and forthright witness.)
Several days later, Manager Bryce wrote a memoran-
dum to the file, not even mentioning Rosenberg's being
out of uniform. The memo stated: "Tonight I fired
Danny Rosenberg" because "[H]e [has] continually been
away from his work station. He continues to use the cus-
tomer's restrooms instead of the one for employees. He
receives frequent personal calls and visits at the restau-
rant." The memo further stated that he had been repeat-
edly warned, and, since he had not changed his habits,
"and was absent last night from the service bar, and was
again using the customers' restroom, I directed Eddie
Doll to fire him."
Thereafter, the Company continued to take shifting
positions as the purported reasons for discharging Rosen-
berg. Before the unemployment office representatives,
the Company contended that the two main things were
"using the telephone too much," and "using the custom-
er's bathroom." At the hearing, company counsel object-
ed to any testimony about use of the customer restroom
(which Rosenberg and other bartenders had been using
without objection), stating that "[T]here was no mention,
whatsoever, about his discharge from the Company by
any company manager, having to do with the bathroom
situation. This is completely irrelevant.... It's totally
irrelevant. It has nothing to do with his . . . discharge."
At the hearing, in an apparent attempt to reconcile the
Company's shifting positions, Manager Bryce testified
that "I didn't fire him for wearing the waiter's jacket,"
but then added, "to use the colloquialism that was the
last straw."
As admitted by company counsel at the hearing, the
use of the customer restroom (mentioned twice in the
Company's memorandum to the file-dated March 3, but
written several days later-and also mentioned in the
Company's statement to the unemployment office) had
nothing to do with the discharge. Concerning the other
purported reasons for the discharge, Rosenberg credibly
testified that "they said you could wear anything you
want at the service bar in the kitchen." At the front bar,
he would sometimes take off his tie, or wear an off-white
instead of a white shirt, but this had never been treated
as a serious matter. Manager Bryce had spoken to him
once, in the summer of 1978, when Rosenberg admitted-
ly should have sent a message that the bar was too busy
rather than letting the call interfere with his work. How-
ever, there was no objection to the use of the telephone
when the work was covered (as it was on March 3).
Also, once in the summer of 1978, Bryce had told
Rosenberg that his wife should not come to the bar
when it would take him away from the job, but "I was
never told that she shouldn't be there." (Bryce admitted
that the bartenders were sometimes out of uniform,
going without a tie, or wearing a pale blue shirt or jeans.
I discredit, as fabrications, his claim that Rosenberg
would wear jeans or a sport shirt, and his claim that he
corrected Rosenberg a "couple of times a week" for
being out of uniform. I also reject the contention made
in the Company's brief that Rosenberg's discharge "was
a result of his insubordination over a period of months.")
Contrary to the Company's denials, I find that it was
seeking a pretext for discharging bartender Rosenberg,
believing that he was a union supporter campaigning for
the Union among the bartenders. I also find that Man-
ager Bryce ordered the assistant manager to discharge
him for being out of uniform, but later adopted shifting
positions to conceal his discriminatory motivation. I
therefore find that the Company discriminatorily dis-
charged Rosenberg on March 3 to discourage the em-
ployees' union support in violation of Section 8(a)(3) and
(1) of the Act.
G. Discussing Union on Premises Prohibited
About February 8, at a regular Thursday meeting of
employees, Manager Bryce read a copy of his January 26
letter, to union committeeman Murray, with a copy to
Company Counsel Ferris, accusing Murray of continuing
to "intimidate, coerce, and force" employees to sign rep-
resentation cards, and warning him that if these activi-
ties, by himself or "any of your colleagues," do not cease
on the premises during working hours, further action
may be required. (There is no evidence that Murray was
in fact intimidating, coercing, and forcing employees to
sign union cards. Bryce did not read to the employees,
nor respond to, the union counsel's February 7 letter to
him, denying that Murray had engaged in such conduct
and requesting to be informed if "you have specific in-
stances where Mr. Murray or any other person has co-
erced any employee of Lundy's to sign an authorization
card . . . so that I may take the appropriate action.")
After Manager Bryce read the letter, as bartender
Rosenberg credibly testified, Bryce "told the employees
that he did not want the Union discussed on the prem-
ises," he did not want the Union "brought up at the
meeting," and that, "[l]f you have any complaints, don't
let it have anything doing with the union." Bryce added
F.W.I.L. LUNDY BROS. RESTAURANT, INC. 429
that the employees "could talk all you want on the
street, but not on the premises."
Thus, Manager Bryce was again singling out commit-
teeman Murray, who was leading the Union's organiza-
tional drive. (Previously, as found above, Bryce had held
Murray up to ridicule and scorn at the December 23
meeting, at which Bryce referred to him as a "joker" or
"clown" attempting to organize the Union, and threat-
ened to close the restaurant if the Union came in; and
Owner Thiele also had singled out Murray on December
29, when Thiele was likewise threatening to close the
restaurant. By connecting Murray's organizing efforts
with the threats of closure, the Company had made
Murray a "marked" man, being shunned by employees
that "he did not want the Union discussed on the prem-
ises" and they "could talk all you want on the street, but
not on the premises." Although Murray continued in his
organizational effort at the restaurant, it is clear that
Bryce's announcement to the waiters, cooks, and dish-
washers in the meeting that he did not want them to dis-
cuss the Union on the premises tended to interfere with
the exercise of their Section 7 rights in violation of Sec-
tion 8(a)(1) of the Act.
H. Antiunion Petition and Pamphlet
As found, the Company's campaign to undercut the
Union's organizational drive included criticizing, ridicul-
ing, and discriminating against the Union's principal
leader, committeman Murray, as well as prohibiting em-
ployees from discussing the Union on the premises of the
restaurant. However, despite this unlawful rule against
discussing the Union, the antiunion campaign against
Murray and the Union continued, on company time,
through the activity of part-time waiter Douglas Bourne,
who worked closely with Headwaiter Reid in opposing
the Union.
On February 11 (3 days after Manager Bryce promul-
gated the illegal no-discussion rule), waiter Bourne began
circulating a carefully worded, legal-type antiunion peti-
tion against committeeman Murray, and on April 1 (4
days before the election) Bourne appeared at the restau-
rant with a costly, four-page printed pamphlet, vigorous-
ly attacking Murray and allegedly coercing the employ-
ees, as discussed below. (Bourne was not called to tes-
tify.)
Bourne (the only part-time waiter working neither Fri-
days nor Saturdays) was often present when Headwaiter
Reid was talking against the Union. Sometimes in De-
cember, after the December 4 union meeting, Bourne
was present when Reid talked to waiter Lindsay about
his name being on a piece of paper (perhaps referring to
the Union's bargaining request, in which the Union
named Lindsay as one of the union committeemen).
Bourne was also present (being "always present, most of
the time with Mr. Reid") on December 24, the day after
Manager Bryce ridiculed Murray, Lindsay, and Lawson
before the employees and threatened to close the restau-
rant. On that occasion, both Reid and Bourne told Lind-
say that, "if anyone was not satisfied with the conditions
there, they should quit" and Reid said that "no Black
man can be organized. You can't organize any Black
man" (Lindsay explaining that at Lundy's, "All the wait-
ers are black"). Waiter Sterling recalled that Bourne was
present with him and Reid when-before waiter
Spence's discharge-Sterling was attempting to discour-
age Spence from going to the Union. In such discussions
with Sterling and Reid, Bourne would say that the
Union was no good for them.
Antiunion Petition: On Sunday, February 11, as union
committeeman Lawson credibly testified, Headwaiter
Reid was sitting at a table in the first section of the
dining room writing a schedule. Waiter Bourne was
standing in front of Reid, and other waiters were stand-
ing on the side. Lawson observed that Bourne "picked
up a sheet of paper from the table where Mr. Reid was
sitting," and saw him pass the petition around to the
waiters standing about 6 or 8 feet from Reid and have
them sign it. Later Lawson saw Bourne in the kitchen
with a similar paper, and overheard him telling the cook
that "[T]his is not from the Union, this is from the men
protesting that they don't want to work with Cyril
Murray." Bourne then went from one to another in the
kitchen getting them to sign. Sometime after that (as elic-
ited by company counsel on cross-examination of
Lawson) waiter Madison told Lawson that "he signed it
because he was supposed to do so . . . by the headwaiter
and otherwise." When Bourne went to the service clam
bar in the kitchen, he told clam opener Sanchez, "I col-
lect some signatures." Sanchez asked what for, and it is
undenied that Bourne said, "To keep the place open"
(evidently referring to the repeated threats to close if the
Union came in). Bourne did not show Sanchez the typed
petition, but had him sign a sheet without any heading.
(There were 13 signatures on the petition, and a total of
44 signatures on 3 blank sheets.) Waiter Edwin Grant, an
antiunion defense witness, signed the petition itself but
did not read it. He denied asking the Company to fire
Murray and denied refusing to work unless Murray was
fired. Company-witness Saunders (another antiunion
waiter) testified that Bourne told him that "these guys
[union committeemen Murray, Lindsay, and Lawson]
were being unjust to Lundy's"; that he thereafter saw
Bourne in the dining room reading the petition to three
or four waiters; and that the petition was going around
the dining room about 5 or 6 p.m. (as meals were being
served).
The petition, addressed to Manager Bryce, avoids any
direct reference to the Union, but refers to a February 5
article in the Jamaican Weekly Gleaner concerning the
Union's NLRB charges and demand for representation,
and quoting Murray, "a Jamaican worker-delegate at
Lundy's," as describing the situation there as "a slavery
set-up." The petition, dated February 10, is obviously a
carefully prepared legal document stating that "the un-
dersigned employees wish to disassociate ourselves"
from the newspaper article, and that Murray's "state-
ments and accusations are false, mischievous, and de-
meaning to us. Never in the history of this restaurant
have we enjoyed so much freedom, consideration, and
benefits. Our loyalty to this institution [goes] back many
years, therefore we want to give you the assurance that
our love for this Land-Mark remains intact." The peti-
tion concludes that "because of the seriousness and mean
character of the attached article we will no longer asso-
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciate ourselves with Mr. Cyril Murray as a co-worker
and we the undersigned will not return to work unless
his service as a waiter is terminated immediately." (A
part of the petition was quoted in a leaflet subsequently
issued by the Company against the Union.)
There is no testimony by any employee that he threat-
ened not to return to work unless Murray was terminat-
ed. Instead, the evidence reveals that the alien employ-
ees-some of them speaking little English-were most
fearful of losing their jobs; many of them, after the re-
peated threats of closure, had refused to sign authoriza-
tion cards or had requested to withdraw their cards, ex-
pressing fear that the restaurant would close; the waiters
had not quit even when charged up to $500 for lost
checks; and they accepted the food served to the em-
ployees in an upstairs dining area (credibly testified as
being "chicken neck, chicken gizzard, and hot dog, sau-
sage," and later resulting in one employee going into the
hospital for malnutrition). They accepted the condition
of having no heat in the employee restroom; and several
of the waiters credibly testified that they did not ques-
tion the estimated quitting times which Headwaiter Reid
put down for them on the timesheet, and accepted their
paychecks even when short, because if you "argue about
it they'll kick you out," or "if you make any long talk,
you out, " or "if you mention it, it will be worse for
you." Under these circumstances, I consider it most un-
likely that the alien employees, dependent upon the res-
taurant jobs for their livelihood, would be threatening
not to return to work unless Murray was terminated im-
mediately. Even assuming that the conditions described
in the newspaper article were inaccurate (regarding a
former practice of using petty cash vouchers, $65 or $70
charged for a broken tray of dishes, $100 charged for a
missing check, charges for cash register shortages, dis-
charges for complaining to management, interrogation
about who were trying to join a union, violations of
health laws and insanitary conveniences, payment for
jobs in the restaurant, etc.), it is clear that the employees
did not spontaneously prepare and sign a petition in pro-
test. The petition is obviously a carefully drafted, formal-
ly typed, legal document which was circulated under
conditions indicating that it met the Company's approv-
al. In front of other waiters, Bourne took the petition
from a table where Headwaiter Reid was sitting, and had
the waiters to sign it in Reid's presence. Later, Bourne
was permitted to read the petition to waiters on duty in
the dining room. Bourne secured most of the signatures
on blank paper, and induced employees to sign by using
such arguments as "this is from the men protesting that
they don't want to work with Cyril Murray," "these
guys [Murray, Lindsay, and Lawson] were being unjust
to Lundy's," and the petition is "[T]o keep the place
open." I therefore reject the argument in the Company's
brief that the newspaper article "so aroused the staff
against Mr. Murray personally that they took it upon
themselves to write to the Manager of the restaurant to
completely disavow the article and demand the immedi-
ate termination of Mr. Murray," and that the petition
"was not in any manner aided or abetted by any member
of management," and "was, in fact, a spontaneous reac-
tion by an irate group of dedicated workers to show
their loyalty and appreciation to their employer." (I dis-
credit the testimony by Reid and Manager Bryce that
they first saw the petition when it was lying on Bryce's
desk.)
After weighing all of the evidence, I find that the
Company not only permitted the circulation of the an-
tiunion petition during working time, but also that it pre-
pared the document and, as alleged in the complaint,
"circulated, urged and solicited" employees to sign it
through its agent, waiter Bourne. I also find that the
Company prepared the document as a further means of
undercutting the organizational effort of union commit-
teeman Murray. Accordingly, I find that the Company
thereby coerced the employees in the exercise of their
Section 7 rights in violation of Section 8(a)(1) of the Act.
Antiunion Pamphlet: On Sunday, April 1, waiter
Bourne took a box of the 4-page printed antiunion pam-
phlets (G.C. Exh. 7) to the kitchen and left the box there
during the day alongside the food checker's desk. Bourne
handed a copy to Captain Stultz (who was acting as
headwaiter in Reid's absence). After reading it, Stultz
put the copy back in the box and did nothing to stop the
circulation. Later, after headwaiter Reid arrived, as
union committeeman Lawson credibly testified, Bourne
and Reid were in the first section of the dining room,
with a few copies of the pamphlets in their hands, look-
ing at the pamphlet and laughing. Later that day,
Lawson saw Bourne and Reid go toward the checker's
desk in the kitchen, take additional copies of the pam-
phlet from the box, and start distributing them to the
kitchen employees. Then Bourne returned to the dining
room and distributed copies to waiters on duty. (Accord-
ing to Reid, he saw copies of the pamphlet in the dining
room and "told them that it does not belong in there." I
discredit his denial that he personally distributed any of
them.)
The printed pamphlet consisted of a "Vote No" leaflet
and a 3-page document entitled, "The Workers Bulletin."
The so-called bulletin vehemently attacked union com-
mitteeman Murray and listed 37 "Facts If There Is A
Union." These "facts" included loss of the privilege to
"take a friend for a job," to work the days "we want to
work," to take time off "when we want to," to eat food
"in the kitchen again," and to have sons in college
"come here to work again." It overstated the initiation
fee and dues, claiming that the initiation fee was "ap-
proximately" $100 (instead of the correct figure of $40)
and the dues "as much as" $12 weekly (then $11.50 a
month). The pamphlet falsely stated that "all union
cooks must speak good English." It reminded the em-
ployees of the threats made by Owner Thiele, Manager
Bryce, Headwaiter Reid, and Captain Stultz that the res-
taurant would close if the Union came in by stating that
"The Lundy's Family is opposed to Union. They closed
for six months in 1957, but in 1979 we will vote 'No' and
keep the doors open.. .. this is Lundy's business and
they are opposed to Union. A man does what he wants
to do with his place." In the absence of Bourne as a wit-
ness, there is no direct evidence of who prepared the
"Vote No" leaflet and the attached "The Workers Bulle-
tin" pamphlet, nor evidence about who paid for the
printing. I consider it most unlikely that a part-time
- ------
F.W.I.L. LUNDY BROS. RESTAURANT, INC. 431
waiter, Bourne, would prepare such a lengthy pamphlet
and pay for the expense of printing it. When questioned
on direct examination, Headwaiter Reid (who worked
closely with Bourne in opposing the Union) testified that
"[n]o way whatsoever" did he prepare "The Workers
Bulletin," "No" he did not help prepare it in any way,
"Absolutely not" did he give anyone any information
that could be put in here, and he "Never" suggested or
advised any employee to distribute it to the waiters or
any other employee. (As indicated above, he did not im-
press me as being a candid witness.) Manager Bryce tes-
tified, "I had nothing to do whatsoever with this docu-
ment." (As indicated, Bryce appeared willing on the
stand to fabricate whatever testimony might seem plausi-
ble to support the Company's cause.) Citing these den-
ials, the Company disputes the allegation that it distribut-
ed the pamphlets, which it contends were "prepared to-
tally and completely by some employee or employees
unknown to management."
The credited evidence establishes that not only did
Headwaiter Reid and Captain Stultz permit the distribu-
tion of the antiunion pamphlet on April 1, but also Reid
himself participated in the distribution of the pamphlet in
the kitchen. Under these circumstances, and in the ab-
sence of any evidence that part-time employee Bourne or
any other employees paid for the printing of the "Vote
No" leaflet and the attached "The Workers Bulletin," I
infer that the Company participated in the preparation of
the pamphlet and paid for its printing. Accordingly, I
find that the Company not only permitted the antiunion
pamphlet to be distributed on company time, thereby in-
dicating to the employees that it ratified the implied
threats of closure and loss of jobs and privileges in the
pamphlet, but also that the Company itself distributed
the pamphlets through its agents, Reid and Bourne,
thereby coercing the employees in the exercise of their
Section 7 rights in violation of Section 8(a)(1) of the Act.
I. Discharge of Three Union Committeemen and
Sanchez
On Friday, April 6, the day after winning the election
by a vote of about two to one, Manager Bryce called
about 15 or 20 waiters, kitchen employees, and supervi-
sors into his office to witness the discharge of all three
union committeemen, Cyril Murray, Herbert Lindsay,
and Ernest Lawson, as well as clam opener Edmundo
Sanchez, whose picture taken with the committeemen
had been published in the union newspaper. The wit-
nesses included Headwaiter Reid and waiter Bourne,
both of whom were off duty that day. On the way to the
office, Bourne told the committeemen, "I've got to see
this."
At the meeting, Manager Bryce said, "You men saw
that we want no union here and you lost two to one
spite of your organizing." He added that America was a
free country and anybody was free to join a union, but
stated, "You have got a lawyer to instruct you, and I
have a lawyer to instruct me"; "Over the past weeks
there have been a lot of bickering" in the restaurant; and
it was clear that he could not operate the restaurant
properly with Lindsay, Murray, and Lawson. He said,
"There is a petition against you men here," saying that
the employees did not want to work with them (refer-
ring to the February 10 petition against Murray, G.C.
Exh. 10), but he refused Murray's request to see the peti-
tion. Byrce then stated, "We do not want any union
here. You the men who bring the Union here we don't
want you here either." Turning to Sanchez, Bryce said,
"I have seen your picture in the paper." (He was refer-
ring to the April 2 edition of the Union's newspaper.)
Bryce next referred to Juan Diaz, the dishwasher who
was discriminatorily "laid off" (discharged) on Decem-
ber 10, as discussed above, stating that Diaz joined the
Union "and then after he lost his job he went to the
Union to get a job and the Union [chased] him away."
Upon handing out the final paychecks, Bryce said, "San-
chez, here is your check .. .. This is what you get for
your picture." As the four discharged employees were
leaving, Bryce concluded, "Well, this is what you get for
a result of trying to bring a union in." (The above find-
ings are based on the credited testimony by Lawson,
Murray, and Lindsay, who appeared to be honest, forth-
right witnesses.) According to Bryce, he invited about 20
people into the office, and "At the meeting I said, men
won't associate with you, I cannot run the restaurant
without the rest of the employees, and therefore I am
letting you all three go.... I told Mr. Sanchez that in-
asmuch that it was generally known to the employees
that he was associated with . .. .Mr. Lindsay, Mr.
Lawson and Mr. Murray, that the employees included
him in their request that these employees no longer work
at Lundy's." He denied using the word "union" in the
meeting. When asked on cross-examination, "If [Sanchez]
hadn't had his picture taken with them, he probably
wouldn't have been fired," he at first answered, "That is
correct." Then he changed his testimony: "I mean if the
men had not said to me this guy is with them and we
won't work with him either, and their opinion was based
on that picture, then that is correct." (When so testify-
ing, Bryce appeared to be seeking a plausible defense
rather than attempting to give an accurate account of
what happened.)
It is undisputed that, earlier in the day, Kitchen Super-
visor Raoul Badillo told Sanchez that, on election day
(April 5, the day before), Badillo was in the office with
Owner Allen Lundy, and that, when Lundy "saw my
picture and my name," he said, "This guy out." About 8
o'clock that night, after the election, as committeeman
Lindsay credibly testified, Manager Bryce ordered Lind-
say out of the restaurant and told him, "I'm going to fire
you for . . . theft, destroying public property, insubordi-
nation, and trespassing . . . and 16 other reasons." (None
of these accusations was mentioned at the time of the
discharge the following afternoon. I note that, in the
Company's report to the unemployment office for each
of the four discharged employees, it stated that the em-
ployee became unemployed because he was discharged
for misconduct: "Subject was doing a poor job, disrupted
service to customers and distracted other employee's
from doing thier jobs.")
After ordering committeeman Lindsay out of the res-
taurant on Thursday evening, following the election,
Manager Bryce threw a party as a victory celebration.
Bryce claimed that, between about 8 or 9 o'clock and II
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or 12 o'clock, "almost every employee in the restaurant
came to me at one time or another" and "in addition to
Mr. Murray" they "named Lawson, Lindsay, and San-
chez," stating that "they wouldn't work with them
either. They did not take the time to write a petition.
They came to me verbally and said that." Bryce also
claimed that, on this night after the union election,
. . .many of the employees had come to me and
said you have got to let them [Murray, Lindsay,
and Lawson] go, I won't work here with them, I
won't associate with them, in fact one remark that
was made to me is 'We'll sit outside in the parking
lot if you let them come back to work' . . . that
particular remark and many others similar to it
were made to me by dozens of employees both in
the kitchen and in the dining room.
He further claimed that among the 30, 40, or 50 employ-
ees who asked that Murray, Lindsay, Lawson, and San-
chez be discharged were company witnesses Sterling and
Grant (neither of whom corroborated Bryce's claim).
When asked about not taking action against Murray after
receiving the February petition stating that the employ-
ees would not work with him, Bryce answered, "It
would have been a clear and flagrant violation to have
fired him in February during the organizing campaign."
In its brief, the Company asserts:
To summarize the situation with respect to
Messrs. Murray, Lawson, Lindsay and Sanchez,
these four men so alienated themselves from their
former colleagues-despite the fact that many of
these colleagues supported the [Union]-that the at-
mosphere at the restaurant became highly volatile.
This situation came to a head immediately after the
election with the demands of the staff, upon man-
agement, to immediately remove and disassociate
these four from the remaining staff. Management,
therefore, had no other recourse but to terminate
their employement in order to preserve harmony
and a cooperative working relationship with the re-
maining employees.
Of course, such a position is untenable. Even if Manager
Bryce's testimony were credited, that 30 to 50 employees
told him after the election that they would not work
with the three union committeemen and Sanchez, the
reasons for their opposing Murray were the same as in
February (when the Company's agent, Bourne, induced
employees to sign the antiunion petition against Murray,
and when admittedly it would have been "a clear and
flagrant violation" for Bryce to discharge Murray during
the organizing campaign), and the reason for the opposi-
tion to committeemen Lindsay and Lawson and union
supporter Sanchez were their association with Murray
and their support of the Union. It has long been well es-
tablished that, even in a situation where there is no hos-
tility of the employer toward a union (contrary to the
union animus here), an employer who yields to an an-
tiunion bias of his employees and terminates an employee
for such reason discriminates against the employees in
violation of Section 8(a)(3) and (1) of the Act. Hudson
Motor Car Company, 34 NLRB 815, 826-827 (1941),
enfd. 128 F.2d 528, 532-533 (6th Cir. 1942).
However, I do not credit Manager Bryce's unsupport-
ed claim that 30 to 50 employees told him after the elec-
tion that they would not work with the three union com-
mitteemen and Sanchez. Bryce had previously threatened
to find some way to discharge the three committeemen,
and, as admitted by Supervisor Badillo to Sanchez,
Owner Allen Lundy was ordering the discharge of San-
chez for having his picture in the union newspaper with
the three committeemen. I discredit Bryce's testimony as
another fabrication, and find that Bryce discharged em-
ployees Murray, Lindsay, Lawson, and Sanchez-in
front of an assembled group of employees-because of
their union activity and as a warning to any other em-
ployee who might dare in the future to attempt to orga-
nize a union at the restaurant, thereby violating Section
8(a)(3) and (1) of the Act.
J. Other Alleged Violations
In an employee meeting in early February, Manager
Bryce discussed which employees would be entitled to
receive backpay for unpaid overtime which the Compa-
ny was being required to pay. Shortly thereafter on
March 1, the Company posted a notice that the employ-
ees would be paid for all time on their timecards without
the hour deduction for lunch, but would be required to
be in uniform when punching in and out. Bryce testified
that this was strictly an administrative change making
the bookkeeping easier: paying the employees, instead of
deducting an hour, for the lunch break, while requiring
the employees to change clothes on their own time,
thereby balancing hour off against another. Although
the General Counsel contends that the paid lunch hour
was an unlawful inducement of employees to abandon
their union support, and that the new rule on punching
the clock in uniform was discriminatorily motivated to
discourage the employees' union support, I find that the
changes merely constituted a change in keeping track of
all working hours, and that no unlawful inducement or
discrimination has been proved. I therefore shall dismiss
this allegation in the complaint.
It was alleged in the second complaint, as amended at
the hearing, that the Company "discontinued efforts to
obtain group health insurance . . . as a result of the com-
mencement of the union organizing campaign," and so
informed the employees, thereby violating Section 8(a)(3)
and (1) of the Act. The General Counsel relies on Man-
ager Bryce's testimony that he had started making in-
quiries about health and life insurance for the employees,
but, after the union organizing began, he deferred further
action and notified the employees, "I was very sorry but
we could not continue any further with looking into a
health insurance and life insurance program until after
the union matter was settled." I find that the General
Counsel has failed to prove that the Company either
denied the employees any benefits because of their union
activity or interfered with the exercise of their Section 7
rights. I shall therefore dismiss this allegation in the com-
plaint.
F.W.I.L. LUNDY BROS. RESTAURANT, INC. 433
III. REPRESENTATION PROCEEDING
The petition was filed on December 19, a consent-elec-
tion agreement was signed on March 16, and the election
was held on April 5 in the following appropriate unit:
· ..all food preparation, food service and mainte-
nance employees employed at the Employer's res-
taurant located at 1901 Emmons Avenue, Sheeps-
head Bay, New York, including waiters, waitresses,
busboys, cooks, dishwashers, pot washers, salad
men, bartenders, hostesses, clam openers, mainte-
nance men, porters and matrons; and excluding all
other employees, including the manager, assistant
managers, kitchen manager, office manager, head-
waiters, captains, other management employees,
checkers/cashiers, office clerical, accounting per-
sonnel, guards and supervisors as defined in the
Act.
Excluding I void ballot and 18 challenged ballots, the
vote was 44 for, and 68 against, the Union.
The Union filed timely objections on April II. The
Regional Director issued a Report on Objections on July
11, overruling Objections 1-5, 8, 11, and parts of Objec-
tion 15; setting down for hearing with the complaint
cases Objections 6, 7, 9, 10, 12-14, and part of 15; and
ordering a severance of the representation case upon
ruling and decision herein.
Based on the foregoing findings in the complaint cases,
I sustain Objection 6 (concerning closure threats made
before the election by Owner Thiele, Manager Bryce,
Headwaiter Reid, and Captain Stultz), Objection 9 (con-
cerning threats by Manager Bryce to discharge employ-
ees Murray, Lindsay, and Lawson, and a threat-an
order-by Owner Thiele that Sanchez be discharged),
Objection 10 (concerning the Company's distribution of
the April 1 pamphlets containing substantial misinforma-
tion about the Union and containing threats of closing
and loss of benefits if the Union won the election), Ob-
jection 12 (concerning the unlawful discharge of employ-
ees Juan Diaz, Edward St. Vil, Derman Spence, and
Daniel Rosenberg), Objection 13 (concerning the Com-
pany's unlawful distribution of an antiunion petition on
February 11), Objection 14 (to the extent that it alleges
an unlawful no-discussion rule directed at the Union, and
Objection 15 (to the extent that it alleges loss of over-
time and the Christmas bonus, and the holding of union
committeemen Murray, Lindsay, and Lawson up to ridi-
cule and scorn).
Objection 7 (not contended to be an unfair labor prac-
tice) alleged that, starting about March 30, the Company
provided bus service from the restaurant to the subway
station "with the dual purpose of providing a benefit not
previously enjoyed by the employees and of restricting
access of the Union in attempting to communicate with
the employees." The bus service was provided for 6
nights, from March 30 (2 days before a scheduled union
meeting near the plant) through April 4 (the night before
the election). As had happened before, an employee had
been mugged after work at the subway station on March
18, but this was the first time the Company had ever
provided a bus, and the service continued only until the
employees voted in the April 5 election. Contrary to
Manager Bryce's claim that he did not consider the van
an employee benefit: Office Manager Williams admitted
knowing that the Family and the executors of the estate
"felt that it would be favored" by the employees. Union
committeemen Murray, Lindsay, and Lawson had been
inviting employees to a union meeting in a motel near
the restaurant on April 1, but the free bus service result-
ed in only 10 or 12 employees attending the meeting.
From time to time, Headwaiter Reid and Captain Stultz
would "go out there by the door to see who go out
there and who take the bus," as committeeman Lawson
credibly testified. And, as elicited by company counsel
from waiter Sterling, a defense witness, there was talk in
the restaurant before the election about the Company
providing the van because of the Union. Although the
Company contends that it provided the service "only for
the safety of the employees" (emphasis supplied), it
offers no explanation for limiting the service to the few
days before the election. Under all the circumstances, I
find as alleged in the objection that the Company pro-
vided the bus service to give the employees a preelection
benefit, and to limit the ability of the Union to communi-
cate with the employees. I therefore sustain Objection 7.
I find that the Company's foregoing conduct, occur-
ring between the filing of the petition and the holding of
the election, interfered with the employees' free and un-
trammeled choice of representation. I therefore find that
the election must be set aside and a new election held.
CONC.USIONS OF LAW
1. By discriminatorily discharging employees Juan
Diaz, Daniel Rosenberg, Edward St. Vil, and Derman
Spence during the election campaign and employees
Ernest Lawson, Herbert Lindsay, Cyril Murray, and Ed-
mundo Sanchez on the day after the election, in reprisal
for their union activity, the Company engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(3) and (1) and Section 2(6) and (7) of the
Act.
2. By repeatedly threatening to close the restaurant if
the Union were voted in, the Company violated Section
8(a)(l) of the Act.
3. By suspending union organizer Ernest Lawson for 2
days on January 26, by suspending him and union orga-
nizer Cyril Murray for a half day on December 9, and
by transferring union organizer Herbert Lindsay to a less
desirable work station on December 9, causing him
thereafter to lose earnings, in reprisal for their union ac-
tivity, the Company discriminated against them in viola-
tion of Section 8(a)(3) and (1) of the Act.
4. By holding up union organizers Murray, Lindsay,
and Lawson to ridicule and scorn in front of assembled
employees, and by threatening to find a way to fire
them, because of their organizing activity, the Company
coerced employees in the exercise of their Section 7
rights in violation of Section 8(a)(1) of the Act.
5. By engaging in repeated coercive interrogation of
employees; by creating the impression of surveillance of
union activities and meetings; by implying a threat to dis-
charge employees for getting involved with the Union;
by threatening reprisals and the loss of overtime,
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allowances, and other benefits if the Union comes in and
the restaurant is not closed; and by prohibiting discussion
of the Union on the premises of the restaurant, the Com-
pany coerced employees in violation of Section 8(a)(l) of
the Act.
6. By permitting the circulation of an antiunion peti-
tion during working time, and by circulating and urging
and soliciting employees to sign the petition through its
agent, the Company coerced employees in violation of
Section 8(a)(l) of the Act.
7. By permitting the distribution of a coercive antiun-
ion pamphlet during working time, and by distributing
the pamphlet through its agents, the Company further in-
terfered with the employees' exercise of their Section 7
rights in violation of Section 8(a)(1) of the Act.
8. The General Counsel has failed to prove that pay-
ment for the lunch hour in exchange for requiring the
employees to be in uniform when punching in and out
was either an unlawful inducement or unlawful discrimi-
nation.
9. The General Counsel has failed to prove that the
Company unlawfully coerced the employees or denied
them benefits because of their union activity when the
Company deferred inquiries about, and announced to em-
ployees that it could not continue looking into, a health
insurance and life insurance program during the election
campaign.
THE REMEDY
Having found that the Respondent committed a vari-
ety of unfair labor pratices, I find it necessary to order
the Respondent to cease and desist therefrom and to take
certain affirmative action to undo the effects of the mis-
conduct to the extent possible.
This is clearly an "exceptional" case, marked by "out-
rageous" and "pervasive" unfair labor practices.
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 613
(1969). The case involved about 143 waiters and other
dining room and kitchen employees, a large percentage
of them being aliens, working at the minimum wage for
a large, famous 1000-seat restaurant. Beginning about
December 5, after the Union's first organizing meeting
with employees, the Company committed extensive
unfair labor practices to undercut the union drive. The
turning point in the campaign came in late December,
when Manager Bryce and Owner Thiele, in separate em-
ployee meetings, threatened to close the restaurant if the
Union came in. Fearing loss of their livelihood, with no-
where else to work, many of the alien employees asked
that their union authorization cards be withdrawn or de-
stroyed, or refused to sign or turn in their cards "because
I don't want the restaurant to close," or stated they
would lose their jobs and "couldn't get any jobs out-
side." These threats to close continued. After the Thiele
and Bryce meetings, Headwaiter Reid and Captain Stultz
made repeated references to the restaurant's closing if
the employees joined the Union. In March, in another
employee meeting, Bryce told the employees that the
owners "agreed to open the restaurant [after the vacation
shutdown in January] because I gave them assurance"
that the employees would vote no union. Then on April
1, 4 days before the election, the Company through its
agents distributed a pamphlet which included a 3-page,
printed "The Workers Bulletin," which concluded with
another closure warning: "The Lundy's Family is op-
posed to Union. They closed for six months in 1957, but
in 1979 we will vote 'No' and keep the doors open . . .
this is Lundy's business and they are opposed to Union.
A man does what he wants to do with his place."
Headwaiter Reid, who admittedly had "spies" at the
union meetings, systematically interrogated employees
concerning who handed out and signed union authoriza-
tion cards and what they thought about the Union; gave
the impression that the Company was keeping the union
activities and meetings under surveillance; and threat-
ened employees with discharge if they supported the
Union. One employee, Sterling, who promised Reid to
be one of the main ones "that's going to campaign agaist
the Union coming in here" and who conferred daily with
Reid, campaigned against employees joining the Union,
contending "if you're illegal [aliens], and the Union come
in, you're out." (This was part of the context of the
Company's repeated threats of closure, magnifying the
aliens' fear of loss of their livelihood.) Manager Bryce
himself interrogated employees at his December 23 meet-
ing concerning who had signed authorization cards, and
threatened the employees with reprisals and the loss of
benefits if the Union did come in and the restaurant did
not close. The Company discriminatorily discharged
eight of the union organizers and supporters, four of
them before the election: two in December, one in Feb-
ruary, and one in March.
Meanwhile, the Company was discriminating against
the three members of the union organizing committee,
Murray, Lindsay, and Lawson, and was taking actions to
isolate them from the employees, undercutting the orga-
nizing effort. It suspended Murray and Lawson on De-
cember 9, transferred Lindsay on the same day to a less
desirable work station (causing him to lose both wages
and tips between then and the election), and suspended
Lawson again on January 26. In the December 23 meet-
ing, Manager Bryce held them up to ridicule and scorn,
and in that meeting, and again in an employee meeting in
March threatened to find a way to discharge them. After
the December 23 meeting, many of the employees even
stopped speaking to the three organizers. Particularly
Murray, the most active organizer, became a "marked"
man, being shunned by employees fearful of losing their
jobs. Owner Thiele singled Murray out at the December
29 meeting, and Bryce again singled him out at a meet-
ing in February, and took actions to further isolate him
from the employees. He told the employees "he did not
want the Union discussed on the premises" of the restau-
rant, and that they could talk all they want "on the
street, but not on the premises." Despite this unlawful re-
striction on discussing the Union on the restaurant prem-
ises, Headwaiter Reid permitted antiunion employee
Bourne (an agent of the Company) to pass out-in Reid's
presence, during working time-an antiunion petition
(prepared by the Company) insisting on the immediate
discharge of Murray to further undercut his organizing
efforts.
Finally, on April 6, the day after the Company's victo-
ry at the April 5 election, the Company clearly flaunted
F.W.I.L. LUNDY BROS. RESTAURANT, INC. 435
the Act as a warning to any other employee who might
dare in the future to attempt to organize a union at the
restaurant. Manager Bryce, before an assembled group of
employees, summarily discharged all three of the union
organizers, and also a fourth union supporter, Sanchez,
because his photograph taken with them had appeared in
the union newspaper. He told Murray, Lindsay, and
Lawson, "We do not want any union here," and, because
they had tried to bring in the Union, "we don't want you
here either." Upon handing Sanchez his final check,
Bryce said, "This is what you get for your picture."
The Union contends that the Company's pervasive,
flagrant, and outrageous unfair labor practices have
"eliminated all possibilities of a future fair election," and
that a bargaining order must be part of any meaningful
remedy. The General Counsel contends that the Compa-
ny's unfair labor practices are so outrageous and perva-
sive that the extraordinary remedies delineated in United
Dairy Farmers Cooperative Association, 242 NLRB No.
179, are necessary to dissipate and counteract their ef-
fects for the holding of another election. Relying on
United Dairy, the General Counsel does not seek a bar-
gaining order in the absence of proof that the Union had
obtained a majority of valid authorization cards. (The
evidence does not disclose how many valid cards the
Union had obtained in the bargaining unit of approxi-
mately 143 employees. Citing the testimony of commit-
teeman Lindsay, the Company points out in its brief that
"there was testimony that 80 employees signed union
cards." However, I note that committeeman Lawson tes-
tified that a "good 20, 30 men approached us" after the
closure threats began, "saying they better hold off.") As
indicated above, the Company denies committing any
unfair labor practices.
In United Dairy, the Board divided three ways on the
question of issuing a bargaining order in a case in which
there were flagrant and pervasive unfair labor practices,
but no prior showing of majority support for the Union.
Chairman Fanning and Member Jenkins would issue the
bargaining order as "the only adequate remedy" (in addi-
tion to extraordinary remedies). Member Penello, finding
that such a bargaining order would violate the principle
of majority rule, found that the Board lacks statutory au-
thorization to issue a bargaining order in the absence of a
showing that the Union ever enjoyed majority support.
The remaining Board members, Murphy and Truesdale,
found that the Board's statutory remedial authority
"may" well encompass the authority to issue a bargain-
ing order in the absence of a prior showing of majority
support, but, as a matter of discretion, joined with
Member Penello in refusing to issue such an order. They
held that a bargaining order in that case "presents a sub-
stantial risk of imposing a union on nonconsenting em-
ployees, and could only be justified if it served a substan-
tial remedial interest." 242 NLRB No. 179, supra. Even
though finding it true that the unfair labor practices had
"precluded that holding of an unencumbered election,"
they found on the facts of the case that it would be less
destructive of the Act's purposes to devise "extraordi-
nary remedies which, although perhaps not sufficient to
eradicate totally the effects of the unfair labor practices,"
would tend to restore an atmosphere giving employees a
choice for or against union representation, rather than
"risk negating that choice altogether by imposing a bar-
gaining representative" on the employees. Id. Neverthe-
less they added (Id., fn. 11:
As experience dictates, we will continue to balance
these competing interests. It may be that in some
case the facts will show that the atmosphere has
become so poisoned as to preclude any reasonable
likelihood of ever holding an election in which we
can place any confidence, even if extraordinary
remedies were employed.
I find that this is such a case.
Particularly in view of the alien status of a large per-
centage of the employees and the fear of losing their
livelihood engendered by the Company's repeated clo-
sure threats, discharges, and other extensive unfair labor
practices, I find that the atmosphere at the restaurant
"has become so poisoned as to preclude any reasonable
likelihood of ever holding an election in which we can
place any confidence, even if extraordinary remedies
were employed." Thus, the risk of "imposing a union on
nonconsenting employees" must be balanced against the
certainty of assuring the Respondent continued enjoy-
ment of the fruits of its flaunting of the Act, depriving
the employees of any free choice. Yet, even if it were
found that the risk is justified by a "substantial remedial
interest," a majority of the Board has not as yet made
the determination (1) whether the Board's remedial au-
thority under Section 10(c) of the Act does "encompass
the authority to issue a bargaining order in the absence
of a prior showing of majority support," and (2) whether
the Board in such an extreme case will exercise its dis-
cretion to issue a bargaining order. I defer to the Board's
judgment on those policy matters.
For what they may be worth in the extreme circum-
stances of this case, I do find it necessary to include in
the remedial order various extraordinary remedies delin-
eated in the Board's United Dairy decision to "dissipate
as much as possible the lingering atmosphere of fear and
coercion created by these unfair labor practices." Id. As
found by the Board, this additional remedial action is de-
signed to accomplish two objectives in the restoration of
employee rights: to "emphatically . . . inform employees
of their Section 7 rights and assure employees that Re-
spondent will respect those rights," and to afford the
Union "an opportunity to participate in this restoration
and reassurance of employees rights by engaging in fur-
ther organizational efforts, if it so chooses, in an atmo-
sphere free of further restaint and coercion . . . in order
to counteract the effects of Respondent's campaign of
lawlessness." Id.
As conventional remedies, the Respondent having dis-
criminatorily discharged eight employees (Juan Diaz on
December 10, Edward St. Vil on December 31, Derman
Spence on February 17, Daniel Rosenberg on March 3,
and Ernest Lawson, and Herbert Lindsay, Cyril Murray,
and Edmundo Sanchez on April 6), suspended three em-
ployees (Lawson and Murray on December 9 and
Lawson again on January 26), and transferred Lindsay to
a less desirable work station on December 9, reducing
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his earnings thereafter, I find it necessary to order the
Respondent to offer them full reinstatement, with com-
pensation for lost pay (including wages and tips) result-
ing from the discriminatory suspensions and transfer, and
for such lost pay and other benefits from date of dis-
charge to date of proper offer of reinstatement, less net
interim earnings, in accordance with the formula set
forth in F. W Woolworth Company, 90 NLRB 289 (1950),
plus interest as computed in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962), and in Florida Steel Corporation,
231 NLRB 651 (1977). Inasmuch as these discharges,
which included the entire employee organizing commit-
tee, are of such an egregious nature, particularly when
considered in the context of Respondent's other wide-
spread misconduct, I conclude that Respondent has dem-
onstrated a general disregard for the employees' funda-
mental statutory rights and that a broad order requiring
Respondent to cease and desist from infringing in any
other manner upon the rights guaranteed employees by
Section 7 of the Act is required. See Hickmott Foods,
Inc., 242 NLRB No. 177 (1979).
I also find the following extraordinary remedies to be
necessary. The notice to employees is required to be
signed by Robert Thiele (the chief beneficiary of the
Lundy estate) and Edward Bryce (the restaurant man-
ager), both of whom, at the top level of management,
threatened in employee meetings to close the restaurant
if the Union came in. The Respondent is required to mail
the notice to all employees, both those employed at the
time the notice is mailed and those employed during the
period the unfair labor practices were committed. How-
ever, because of the possible unduly harsh effect on the
Respondent's business, I do not find it appropriate to in-
clude the United Dairy remedy of requiring the Respon-
dent to publish in the local newspapers of general circu-
lation a copy of the notice "two times per week for a
period of 4 weeks." Also, the Respondent is required, at
the Board's request, either to have Owner Thiele or
Manager Bryce read the notice to all employees (afford-
ing a Board agent a reasonable opporutnity to be pre-
sent) or at the Respondent's option to permit a Board
agent to read the notice to the employees.
In addition the above remedies, which are calculated
to assist in dissipating the effects of the Respondent's
prior unlawful conduct, I find it necessary to order the
Respondent to grant to the Union and its representatives,
upon request: (1) reasonable access to its bulletin boards
and all places where notices to employees are customar-
ily posted; (2) reasonable access to employees at the res-
taurant in nonwork areas during employees' nonwork-
time; and (3) notice of, and equal time and facilities for
the Union to respond to, any address made by Respon-
dent to its employees on the question of union represen-
tation. The Respondent is also ordered to afford the
Union the right to deliver a 30-minute speech to employ-
ees on working time prior to any scheduled Board elec-
tion in which the Union is a participant. These provi-
sions shall apply for a period of 2 years from the date of
posting the notice provided by the Order herein, or until
the Regional Director shall have issued an appropriate
certification following an election, whichever comes
first. Finally, the Respondent is ordered to supply the
Union, upon request made within I year of the issuance
of the Order, the names and addresses of its current em-
ployees.
These additional remedies will tend to ensure that each
employee is made individually aware of his statutory
rights and is assured by Respondent's highest ranking
representatives that those rights will be respected. By re-
quiring that the Union be given access to the restaurant
in nonwork areas during employees' nonwork time, em-
ployees may have more assurance that the Respondent
will respect their Section 7 rights. The names and ad-
dresses of current employees will afford the Union an
opportunity to present its view to employees off compa-
ny premises in an atmosphere relatively free of restraint
and coercion and to new employees who have not had a
chance to formulate their desires with regard to repre-
sentation, but who are nonetheless affected by the linger-
ing effects of Respondent's violations.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER 3
The Respondent, F.W.I.L. Lundy Bros. Restaurant,
Inc., Brooklyn, New York, its officers, agents, succes-
sors, and assigns, shall:
I. Cease and desist from:
(a) Discharging, suspending, transferring to a less de-
sirable work station, or otherwise discriminating against
any employee for supporting New York Hotel and Motel
Trades Council, AFL-CIO, or any other union.
(b) Threatening to close the restaurant if the Union is
voted in.
(c) Holding up union organizers to ridicule and scorn
in front of other employees, or threatening to find a way
to discharge the organizers.
(d) Telling employees not to discuss the Union during
nonworktime in nonwork areas on the premises of the
restaurant.
(e) Threatening to discharge employees for supporting
the Union.
(f) Coercively interrogating any employee about union
support or union activities.
(g) Creating the impression of surveillance of union ac-
tivities and meetings.
(h) Threatening reprisals or the loss of overtime,
allowances, or other benefits if the Union comes in.
(i) Circulating, or urging and soliciting employees to
sign, a petition to have an employee discharged for en-
gaging in union organizational efforts.
(j) Distributing any coercive antiunion pamphlet, or
permitting such a pamphlet to be distributed during
working time.
(k) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National l.abor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
F.W.I.L. LUNDY BROS. RESTAURANT, INC. 437
self-organization, to form, join, or assist unions, to bar-
gain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutaul aid
or protection, or to refrain from any and all such activi-
ties.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Juan Diaz, Ernest Lawson, Herbert Lindsay,
Cyril Murray, Daniel Rosenberg, Edward St. Vil, Ed-
mundo Sanchez, and Derman Spence immediate and full
reinstatement to their former jobs or, if their jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of
pay or other benefits they may have suffered by reason
of the discrimination against them in the manner set forth
in "The Remedy" section of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Mail a copy of the attached notice marked "Ap-
pendix"4 to each employee at his or her home address,
and post copies at its restaurant in Sheepshead Bay,
Brooklyn, New York. Copies of the notice, in English,
Spanish, and French, on forms provided by the Regional
Director for Region 29, shall be personally signed by
Owner Robert Thiele and Manager Edward Bryce.
Copies of the notice shall be mailed by Respondent to
each and every employee working at the restaurant on
the date on which the notice is mailed, as well as to each
and every employee who worked at the restaurant
during the period of Respondent's unfair labor practices,
and additional copies shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) At such reasonable time after entry of this Order as
the Board may request, convene during working time,
and by departments and shifts if necessary, all employees
at the restaurant and, at its option, either have the notice
read to the employees by Owner Thiele or Manager
Bryce, or provide facilities and permit a Board agent to
read the notice to the employees. In the event Respon-
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National I abor Relations Board."
dent chooses to have the notice read by the owner or
manager, the Board shall be afforded a reasonable oppor-
tunity to provide for the attendance of a Board agent.
(e) Upon request of the Union made within I year of
the issuance of this Order, make available to the Union
without delay a list of the names and addresses of all em-
ployees employed at the time of the request.
(f) Immediately upon request of the Union, for a
period of 2 years from the date on which the aforesaid
notice is posted, grant the Union and its representatives,
for posting of union notices, reasonable access to the bul-
letin boards and all places where notices to employees
are customarily posted in the restaurant.
(g) Immediately upon request of the Union, for a
period of 2 years from the date on which the notice is
posted, permit a reasonable number of union representa-
tives access for reasonable periods of time to nonwork
areas, including but not limited to the upstairs dining
room, locker rooms, rest areas, and parking lots at the
restaurant so that the Union may present its views on
unionization to the employees, orally and in writing, in
such areas during breaks, mealtimes, or other nonwork
periods.
(h) In the event that during a period of 2 years from
the date on which the notice is posted a manager or
other agent of Respondent convenes any group of em-
ployees at the restaurant and addresses them on the ques-
tion of union representation, give the Union reasonable
notice thereof and afford two union representatives a
reasonable opportunity to be present at the speech and,
upon request, give one of them equal time and facilities
to address the employees on the question of union repre-
sentation.
(i) In any election which the Board may schedule at
the restaurant within a period of 2 years from the date
on which the notice is posted, and in which the Union is
a participant, afford, upon request by the Union, at least
two union representatives reasonable access to the plant
and appropriate facilities to deliver a 30-minute speech to
employees on working time, the date thereof to be not
more than 10 working days, but not less than 48 hours,
prior to any such election.5
(j) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of the
Act not specifically found.
IT IS FURTHER ORDERED that Case 29-RC-4435 be,
and it hereby is severed and transferred to the Regional
Director for further processing.
" Subpars. (f), (g), (h), and (i) herein shall be applicable only so long as
the Regional Director has not issued an appropriate certification follo,-
ing an election.