Giovanni's

National Labor Relations Board - Board Decisions

Nov 13, 1981

259 N.L.R.B. 233 (N.L.R.B. 1981)

GIOVANNI'S 233
Caffe Giovanni, Inc. d/b/a Giovanni's and Local 28, The Act gives employees the following rights:
Hotel and Restaurant Employees and Bartend- To engage in self-organization
ers International Union, AFL-CIO and Gail E.
Wetzel and Joseph C. Krivan. Cases 32-CA- To form, join, or assist any union
2000, 32-CA-2234, and 32-CA-2284 To bargain collectively through repre-
sentatives of their own choice
November 13, 1981 To engage in activities together for the
DECISION AND ORDER purpose of collective bargaining or other
mutual aid or protection
BY MEMBERS FANNING, JENKINS, AND To refrain from the exercise of any or all
ZIMMERMAN such activities.
On March 4, 1981, Administrative Law Judge WE WILL NOT interrogate our employees
Burton Litvack issued the attached Decision in this concerning their union membership, activities,
proceeding. Thereafter, Joseph C. Krivan, a Charg- and desires and the union membership, activi-
ing Party, filed exceptions. ties, and desires of their fellow employees.
Pursuant to the provisions of Section 3(b) of the WE WILL NOT promise our employees eco-
National Labor Relations Act, as amended, the Na- nomic and other benefits in order to dissuade
tional Labor Relations Board has delegated its au- them from joining or assisting a union.
thority in this proceeding to a three-member panel. WE WILL NOT threaten retaliation, deporta-
The Board has considered the record and the at- tion, or other unspecified reprisals against our
tached Decision in light of the exceptions and has employees to dissuade them from joining or
decided to affirm the rulings, findings,' and conclu- assisting a union.
sions of the Administrative Law Judge and to WE WILL NOT solicit grievances from em-
adopt his recommended Order. ployees and promise possible favorable resolu-
tion of them in order to induce them to refrain
from joining or assisting a union.
Pursuant to Section 10(c) of the National Labor WE WILL NOT in any like or related manner
Relations Act, as amended, the National Labor Re- interfere with, restrain, or coerce our employ-
lations Board adopts as its Order the recommended ees in the exercise of the rights guaranteed
Order of the Administrative Law Judge and them under Section 7 of the Act.
hereby orders that the Respondent, Caffe Gio-
vanni, Inc. d/b/a Giovanni's, Berkeley, California, CAFFE GIOVANNI, INC. D/B/A Gio-
its officers, agents, successors, and assigns, shall VANNI'S
take the action set forth in said recommended
Order, except that the attached notice is substituted DECISION
for that of the Administrative Law Judge.
STATEMENT OF THE CASE
'Charging Party Joseph C. Krivan has excepted to certain credibility BURTON LITvACK, Administrative Law Judge: This
findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an administrative law judge's resolutions case was heard before me in Oakland, California, on
with respect to credibility unless the clear preponderance of all of the May 28, 29, and 30 and June 3, 1980, pursuant to an
relevant evidence convinces us that the resolutions are incorrect. Stand- amended consolidated complaint in Cases 32-CA-2000,
ard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d 32-CA-2234, and 32-CA-2284, issued by the Regional
Cir. 1951). we have carefully examined the record and find no basis for Director for Region 32 of the National Labor Relations
reversing his findings. Director for Region 32 of the National Labor Relations
Board, on April 16, 1980, pursuant to an original and
first amended charge in Case 32-CA-2000, filed by
Local 28, Hotel and Restaurant Employees and Bartend-
ers International Union, AFL-CIO, herein called the
Union, on August 3 and September 6, 1979, respectively;
POSTED BY ORDER OF THE a charge in Case 32-CA-2234, filed by Gail E. Wetzel,
NATIONAL LABOR RELATIONS BOARD an individual, on November 1, 1979; and a charge in
An Agency of the United States Government Case 32-CA-2284, filed by Joseph C. Krivan, an individ-
ual, on November 20, 1979. The amended consolidated
After a hearing at which all sides had an opportu- complaint alleges, in substance, that Caffe Giovanni, Inc.
nity to present evidence and state their positions, d/b/a Giovanni's, herein called Respondent, violated
Section 8(a)(4), (3), and (I) of the National Labor Rela-
tions Act, herein called the Act, by discharging employ-
have violated the National Labor Relations Act, as ees Krivan and Erich Frisch and by assigning Krivan to
amended, and has ordered us to post this notice. less desirable work stations and Section 8(a)(1) of the
259 NLRB No. 31
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act by interrogating employees as to their union mem- 3. Whether on or about September 5, Respondent dis-
bership, activities, and sympathies and the union mem- charged employee Erich Frisch in violation of Section
bership, activities, and sympathies of their fellow em- 8(a)(3) and (1) of the Act?
ployees; by threatening reprisals against employees be- 4. Whether from on or about July 8 until on or about
cause of their union activities; by offering a raise and September 5, Respondent engaged in the following acts
permanent employment to an individual in order to and conduct violative of Section 8(a)(1) of the Act:
weaken his support for the Union; by soliciting griev- (a) Interrogating employees about their union member-
ances and suggesting their favorable resolution in order ship, sympathies, and activities and the union member-
to cause employees to abandon their support for the ship, sympathies, and activities of their fellow employ-
Union; by telling employees that it will pay for an out- ees?
side arbitrator if employees agreed to the formation of an (b) Threatening reprisals against employees because
in-house union and abandoned support for the Union; by they engaged in union activities?
threatening employees with a warning letter; by offering (c) Offering employees financial, employment, and
to change the work schedules of employees in order to other inducements in order to weaken support for the
induce them to abandon support for the Union; by Union?
threatening unspecified harms if the Union was victori- (d) Threatening a raid and potential deporting by the
ous in a representation election; and by condoning a pat- Immigration and Naturalization Service if employees
tern of employee harassment and denigration of union vote for the Union?
adherents. Respondent filed an answer, denying the com- (e) Soliciting grievances and promising their favorable
mission of any unfair labor practices. All parties were af- resolution in order to cause employees to abandon sup-
forded full opportunity to appear, to introduce evidence, port for the Union?
and to examine and cross-examine witnesses. Extensive (f) Promising to pay for the services of an outside arbi-
briefs were filed by counsel for the General Counsel and trator if employees consented to the establishing of an in-
by Respondent, and both have been carefully considered. house union in lieu of support for the Union?
Upon the entire record in the case, and from my obser- (g) Threatening to give employees warning letters be-vation of the demeanor of the witnesses, and having cause of their union activities?
carefully considered the post-hearing briefs of the par- (h) Offering to change employee work schedules in
ties, I make the following: order to induce them to abandon support for the Union?
FINDINGS OF FACT (i) Condoning a pattern of general harassment and
denigration of union adherents?
I. JURISDICTION
IV. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent, a California corporation, maintains an
office and principal place of business in Berkeley, Cali- A. Facts
fornia, where it is engaged in the ownership and oper-
ation of a restaurant and bar. During the 12-month 1. Events preceding August 15, 1979
period immediately preceding the issuance of the amend-
ed consolidated complaint, Respondent, in the normal Respondent is a corporation engaged in the operation
course and conduct of its business operations, derived of an Italian-style restaurant and bar in Berkeley, Califor-
nia. John Schipani owns all the outstanding shares ofgross revenues in excess of $500,000 and purchased and
receivenued goods or services ovalued in excess of 000 stock in the corporation and his wife, Anna Schipani, is a
whreceivdch goods or services originatlued outside the State of vice president and is on the board of directors. Both in-which goods or services originated outside the State of . .
dividuals are at the restaurant several times a week and,California. Respondent admits, and I find, that it is an d the and
employer engaged in commerce within the meaning of according to Anna, "While I'm there I help out and do
Section 2(2), (6), and (7) of the Act. what I can." Howard Pitter is the general manager of
the restaurant and normally works during the evening
11. LABOR ORGANIZATION shift. Pat Roberts is the manager during the day shift.
Apparently, Pitter is responsible for the overall oper-
Respondent admits and I find that the Union is a labor ations of the restaurant; however, during her shift, Rob-
organization within the meaning of Section 2(5) of the erts has authority to hire and fire and to direct the work.
Act. As part of his duties, Pitter prepares the daily work
schedule for the employees, including the waiters. There
11l. ISSUES are two head waiters at the restaurant-Chan Chaikow
1. Whether from on or about August 15, 1979,1 until and George Loung. Chaikow testified that along with
September 1, 1979, Respondent assigned employee waiting on tables, he is responsible for assigning the
Joseph Krivan to less desirable work stations in violation waiters to the various work stations-or sections-in the
of Section 8(a)(4), (3), and (1) of the Act? restaurant each day,2 ensuring that proper service is ac-
2. Whether on or about September 1, Respondent dis-
charged or caused the termination of Krivan in violation 2 The work station assignments are made in conjunction with the wait-
of Section 8(a)(4), (3), and (1) of the Act? ers' work schedules. For example, if a waiter is scheduled to work on a
particular night from 6 p.m. until I a.m., Chaikow will assign that indi-
vidual to a work station which requires the waiter in that section to work
Unless otherwise stated, all dates herein are in 1979. until closing time-I a.m.
GIOVANNI'S 235
corded to the restaurant customers, assigning breaktimes fled Respondent of its representation status, he spoke to
to the waiters, and checking that the waiters are per- employee Peter Paccone, 5 who "asked me if I knew any-
forming the side work-i.e., stocking the salad bar-that thing about unions... " From this conversation, Pitter
goes along with the work station to which they are as- admittedly knew that some sort of union movement
signed. among the employees was ongoing. Further, Erich
The record discloses that the restaurant is approxi- Frisch, who had been hired by Pitter on July 5 as a re-
mately 90 feet deep and 40 to 45 feet in width. Entering placement for a vacationing cook, testified that on July 7
the front of the facility, an open kitchen area is to the at approximately 4:30 p.m., Pitter called him into his
right and the cocktail lounge and bar is to the left. Con- office and asked, "Did you know that somebody's trying
tinuing down the left side of the restaurant, between the to bring a union into the house? Or have you heard any
bar and the main wait station is a raised area, called the talk about the Union?" Frisch replied that he had heard
"sidewalk," on which eight dinner tables are located. some talk about it, and Pitter responded, "Well, some-
Opposite this area is a wine arbor. Continuing through body's trying to bring the union into the house." Later,
the restaurant, one enters into the main body of the after informing Frisch that union benefits were not as
dining area. On the right side is a fireplace with dinner good as those paid by Respondent, Pitter said that he be-
tables arranged around it. At the rear of the dining room lieved a waiter was trying to "make 500 easy bucks" by
is an area, called the "boathouse," containing 9 or 10 bringing in the Union and that something would happen
tables. Also located in the back area are two restrooms to the "Mexicans in the dish room" if the Union came
and another wait station. The central dining area has in. 6 Pitter denied the conversation. However, as between
been artificially divided by Respondent into six waiter Pitter and Frisch, I generally credit the testimony of
stations-with responsibility for an approximately equal Frisch whose demeanor while testifying was, for the
number of tables of varying sizes. The corners are desig- most part, that of an honest and candid witness.
nated as sections A and D (on the left side) and B and E The record further establishes that subsequent to the
(on the right side). The center tables are divided into filing of the aforementioned representation petition,
center right and center left. In the normal waiter con- Pitter and Anna Schipani immediately embarked upon a
figuration, one waiter is assigned to each station. The course of conduct designed to uncover the identities of
record further discloses that the facility has a second the primary union adherents and to quell the nascent
floor wherein the restaurant office and an employee campaign. Thus, Bernard Cacho testified that on July 10,
lounge are situated. I day after the filing of the petition, he overheard a con-
The record reveals that union discussions amongst the versation between Anna Schipani and a busboy-dish-
restaurant employees commenced in late June as an alter- washer, named Carlos - -- in the employee
native for solving perceived work problems. Eventually, lounge. According to Cacho, the conversation lasted be-
waiters Joseph Krivan' and Bernard Cacho contacted tween 5 and 10 minutes, and "she asked Carlos if he
the Union and arranged a meeting. Thereafter, the two knew anything about the union. He said not really.
waiters met with business agent Roger Cardenas outside and she said she would like to know who started it."
another Berkeley restaurant. Cacho and Krivan related After evading an answer for a few moments, Carlos
the employee problems, and Cardenas explained organiz- mentioned employee Bill Francisco and a bartender
ing procedures to them. Either then or at a subsequent named Mario-----. Anna ended the conversation
meeting, Cardenas gave authorization-or pledge-cards by saying, ". . . don't you know if the union comes in
to Krivan and Cacho and explained their use. During the here, the immigration is soon to follow. They'll take all
next 2-week period, the two employees distributed and the illegals away." Anna Schipani recalled a meetin
collected signed authorization cards from the waiters, among herself, Carlos and three or four other employees
among herself, Carlos and three or four other employeescooks, and other employees. According to Krivan, he in the dishroom "after I heard that there was . . . cards
personally distributed and collected 12 signed cards ing distribute d or signed " While denying that
during breaks at the restaurant or after work. Cacho and Cacho was even present, that she asked who started thCacho was even present, that she asked who started the
Krivan returned the signed cards to the Union, and on Union, or that she threatened a possible immigration
July 9, based upon the authorization cards, the Union raid, Anna testified, "I wanted to know if there was a
filed a representation petition with Region 32 to repre-h the people in the dishroo. . . . If they
sent certain of Respondent's employees, including the felt they weren't being paid enough or if they wanted
waiters and the cooks.
While there is no direct evidence that Respondent was more or expected more ... . the thing I wanted to tell
aware of the activities of either Krivan or Cacho, the them was that they had to understand what they weregetting involved in with the union .... If you had arecord establishes that Respondent was indeed aware of
the incipient union organizing campaign prior to the union come into the restaurant, did these boys have tothe incipient union organizing campaign prior to the
filing of the election petition. Thus, Howard Pitter s Peter Paccone is a college student who works as a cook for Respond-
vaguely recalled that on the day before the Union noti- ent. He earns $4.75 per hour and is one of the lowest paid cooks. Pac-
cone placed this conversation as occurring prior to the filing of the elec-
'The complaint alleges and Respondent admits that John and Anna tion petition and shortly after being asked by Krivan if he would support
Schipani and Howard Pitter are supervisors within the meaning of Sec. the Union. I was impressed by Paccone's demeanor while testifying and
2(11) of the Act. It is not alleged that Chaikow is either a supervisor or shall credit him herein.
an agent of Respondent. ' The record discloses that Respondent employs many individuals of
'Krivan had been employed by Respondent as a waiter since October Spanish descent as busboys and kitchen help and that several may have
1977. been in this country illegally.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have green cards.... " As between Cacho and Anna about alleged harassment of employees by Pitter and
Schipani, I credit the testimony of Cacho, who, unlike seeking Roberts' help in arranging a meeting with John
the latter, has no interest in the results of this proceeding Schipani, who, they were aware, was scheduled to leave
and impressed me, for the most part, as being a forth- for a European vacation shortly thereafter. During their
right and credible witness. conversation, Roberts gave to the waiters a document,
Joseph Krivan testified that on July 11 he overheard a which purportedly was a copy of a financial report on
conversation between Pitter and a waiter, Jose Cruz, in the Union and which was in the files of the Department
the back of the dining room. As Krivan approached, of Labor. The meeting ended with Roberts promising to
"Howard was asking Jose if he had signed any pledge contact Schipani. Later that day or the next day, Cacho
cards, and Jose denied it ... . Howard then asked him if and Krivan met with John Schipani at approximately 2
he had seen any pledge cards. Jose said no. Then p.m. in the main dining room, and they spoke for ap-
Howard asked him did he know that the Union was proximately 30 minutes. According to Krivan, they told
trying to get into the restaurant?" Jose gave a vague Schipani that "we were very concerned at the harass-
reply, and "Howard asked him how did he feel about ment . . of the employees, and that we wanted an end
that?" Again, Jose gave a noncommittal response, and to it; that we were concerned of anyone being fired
Pitter asked, "if there's an election, how do you think while he was gone, at which point . . . we'd put up a
you'll vote?" After Cruz obligingly replied that he picketline." Krivan named Pitter as the source of the ha-
would probably vote "no," Pitter said, "'Well, if you rassment, detailing the latter's alleged interrogation of
have any gripes or complaints, let me know about the employees regarding the Union. Schipani replied
them."' That night or the next day, according to Krivan, "that he didn't want to stand in the way of what a ma-
he overheard a similar conversation between Pitter and jority of employees wanted, but he didn't want a union
waiter Pow Purgsaphakorn, at the main wait station. "I there." At that point, Krivan referred to the Union's fi-
heard Howard asking Pow if he had signed a pledge nancial statement and expressed concerns about the
card? Pow responded, 'No."' Pitter then asked Pow if he Union "that perhaps they might not be able to support us
had heard that the Union was organizing the restaurant. . . . but we would still fight [and] . . . we wanted a fair
Pow again denied knowledge, and Pitter persistently expression of viewpoints so we could have the election,
asked how Pow felt about it. Pow replied that he did not and may the best man win. John felt that was-well, he
support the campaign. Pitter then ended the conversa- didn't disagree with that. He said while he was gone that
tion, asking if Pow had any complaints or problems and if anything happened, to refer to Pat Roberts. She would
if so, to let him know about them. be acting on his behalf to cool any kind of situations
Howard Pitter denied both the occurrence and the from exploding. However, Mr. Schipani did emphasize
substance of the aforementioned conversations. Accord- that he didn't want a union there; perhaps we might be
ing to Pitter, he never initiated any conversations with interested in something like a house union or some kind
employees about the Union. Rather, he averred that he of employees' grievance committee that would have an
made himself available to "employees that wanted to outside arbitrator to be paid by him to settle affairs that
know more about it. . . . I knew what my legal limita- couldn't be settled between the two parties, instead of
tions were about . . . and I had the book . . . the green the union. I said I wasn't in a position to negotiate that
book, the book of Local 28's bylaws, wages, different kind of an offer; but I would certainly communicate it to
specific things and I made that available to anyone... ." the other employees." The meeting ended at that point.
I note herein that Pitter and Krivan conflict in many tes- During his testimony, Bernard Cacho gave a similar-
timonial aspects. I was not particularly impressed with but more complete-version of this conversation. Ac-
the demeanor of either witness, believing that each was cording to Cacho, he and Krivan began the meeting by
more than capable of fabricating responses in order to expressing doubts about the viability of the Union "but
buttress his respective position. Accordingly, where they that [the Union] was who we started with and we had to
conflict, I have credited that testimony7 which best har- stick with them." Schipani replied that local business
monizes with the surrounding circumstances and which friends told him that "the union, wasn't such a hot thing.
is internally consistent and not inconsistent with the testi- . ." Cacho replied that it would not be a good thing
mony of others. Concerning the above conversations, in- for Schipani but might be good for the waiters. Schipani
asmuch as the conduct of Pitter is consistent with his replied that the Union would not help the employees
earlier credited interrogation of Frisch and as Anna Schi- and, at that point, raised the subject of an in-house union.
pani engaged in similar conduct, I credit Krivan as to "He said, I've had what they call an in house union
Pitter's conversations with Cruz and Purgsaphakorn. and it seems to work better for everybody involved."
One day in the last week of July, Krivan8 and Cacho Schipani mentioned as an incentive that ". .. if we paid
spoke to Day and Manager Pat Roberts, complaining dues within our own in-house union, then the money
would . . . stay within Giovanni's...." Schipani added
' The crediting of portions of witnesses' testimonies is required under would even be willing to pay for an outside
the circumstances of this case and does not require rejection of their
entire testimonies. Carolina Canners, Inc., 213 NLRB 37 (1974). "Nothing bitrator to come in and work out the differences and
is more common than to believe some and not all of what a witness settle the matter and then we could have this in-house
says." Edwards Transportation Company, 187 NLRB 3, 4 (1970), enfd. 437 union. "Krivan and Cacho agreed that what Schi-
F.2d 502 (5th Cir. 1971).
a Krivan made no real effort to hide his role as a strong union adher-
ent. Thus, on July 16, he posted campaign literature on the employee bul- union meeting at his home. Moreover, Pitter admitted, "It was common
letin board and on July 25 he posted a notice, advising employees of a knowledge that John and Bernard were organizing a union."
GIOVANNI'S 237
pani mentioned was a possibility but that since the em- speaking busboys and kitchen help assembling in the
ployees had signed authorization cards for the Union, it boathouse area for a meeting with Pitter. Inasmuch as he
was their decision whether or not to continue supporting did not speak Spanish but Cacho did and as he believed
the Union. Next, Krivan and Cacho raised the matter of the meeting concerned the aforementioned raid, Krivan
Pitter's campaign conduct. Cacho said that he wanted immediately left his area, used a pay telephone near the
such activities stopped, for Pitter's conduct was merely restrooms,' t and called Cacho who was off work that
exacerbating an already tense situation. Schipani replied, night. Because Krivan did not know the subject matter
"if anyone gets a hair up his ass, just go to Pat, she's my of the meeting, Cacho asked to speak to Sergio, one of
direct line and you talk to her and any problems you the restaurant busboys. Thereupon, Krivan walked over
have, bring to her." to the boathouse and, after initially failing, managed to
Schipani testified that Roberts telephoned him on the communicate to Sergio that Sergio was wanted on the
morning of the day on which he was scheduled to fly to telephone. After Sergio picked up the receiver, Krivan
Monte Carlo and that without any idea why Krivan and resumed his waiter duties.
Cacho wanted to speak to him, he postponed his flight Meanwhile, Pitter, who intended to inform the Spanish
reservations to meet with them. According to Schipani, workers that "we were sorry that something like this
the entire conversation lasted just 10 minutes, with [had] happened," began the meeting by telling the assem-
Cacho doing most of the talking. He was very apologetic bled employees, through an employee-interpreter, that
about starting the union, or trying to get a union in the meeting had nothing to do with the Union. At that
there . . . they found out that Local 28 was not what point, Krivan interrupted the meeting by gesturing to
they wanted, and they were just going to drop the whole and telling Sergio about the telephone call. While the
thing. Cacho then told Schipani to go on vacation and latter was gone, Pitter said nothing to the employees but
don't worry "because there won't be a union." Schipani upon Sergio's return told the group how sorry he was
denied that anything was mentioned regarding the inter- that two of them had been taken away by the Immigra-
rogation or harassment of employees and stated that tion Service. Before he could say anything more, Cacho,
Cacho initially raised the subject of other unions, includ- whose residence is nearby the restaurant, came into the
ing a possible in-house union. On the latter point, Schi- boathouse area and sat down in back of the assembled
pani told the waiters that an in-house union, Avanti employees. Pitter looked at Cacho, told him the meeting
Popolo, had once represented Respondent's employees would last only a few minutes, and asked him to wait
and that the former's collective-bargaining agreement outside. Cacho replied that he wanted to stay, hear what
with Respondent included an arbitration procedure.9 was said, and interpret if necessary. They then began to
Schipani concluded by advising Krivan and Cacho to argue, with Pitter demanding that Cacho leave the area
speak to older employees as to how the in-house union and Cacho refusing. Finally, with neither one conceding,
operated. Pitter threatened to call the police but abruptly changed
I find Schipani's account of his conversation with his mind and just dismissed the meeting.'2 Cacho then
Krivan and Cacho rather incredible, believing it extreme- walked away, and as Pitter passed by, Cacho either
ly unlikely that Krivan and Cacho, both of whom had called him "a pig," as admitted by Cacho, or "asshole,"
expended much effort in organizing and directing the as contended by Pitter.
union campaign, would abruptly renounce the Union- The next afternoon, Krivan and Cacho spoke to Pat
and, in effect, their efforts-to the restaurant owner or Roberts in the dining room and explained their version
that Schipani would postpone a pending European vaca- of the previous evening's events. At approximately 2
tion for an employee meeting about which he knew p.m., Pitter came downstairs from his office and gave to
nothing. Accordingly, I credit Cacho's more complete Krivan and Cacho disciplinary letters concerning the
account of this incident, as materially corroborated by night before. The letter to Krivan accused him of gener-
Krivan. ally disrupting the restaurant and stated that the letter
Also in the last week of July, as predicted by Pitter would be placed in his personnel file; Cacho's letter
and Anna Schipani, the Immigration and Naturalization stated that he was being suspended from work for a
Service conducted a raid on the restaurant, and two em- week "because of disruptive activities or disruptive be-
ployees were taken away for possible deportation. Ac- havior . . . and that . . . [if repeated] . . . I would be
cording to Krivan, at approximately 11:30 p.m. on the fired.'3 After reading the letters, Krivan and Cacho de-
day he and Cacho met with Schipani, Pitter approached
him at his work station, '° accused him of telling employ- Krivan reluctantly admitted that he was aware of a work rule pro-
that Respondent was respo sible for the raid, and hibiting use of this telephone by employees. Krivan also denied that he
ees that Respondent was responsible for the raid, and was away from his work station while he telephoned Cacho. According
stated that he was investigating the matter. Thereafter, to him, "the entire restaurant is my station.... "
the events of that evening are basically uncontroverted. '1 As he observed Cacho pass through the dining room and into the
Thus, 20 minutes later, Krivan observed all the Spanish- boathouse, Krivan walked over to the edge of the boathouse area, which
is adjacent to section E, and stood watching. Krivan testified that he was
able to keep his entire area in view and that just one table was occupied
' In 1970, the Board conducted a representation election involving Re- at the time. As to what he was doing while watching the boathouse con-
spondent, the Union and an employee labor organization, Avanti Popolo. frontation. Krivan stated, "I was working," but he could not recall what
The latter received a majority of the votes and ultimately negotiated a he was doing-other than watching.
collective-bargaining agreement with Respondent. The record is unclear '" Pitter maintained that he felt "intimidated" by the conduct of Krivan
as to the demise of Avanti Popolo. and Cacho the previous night and that they had been "trying to make
'° That night, Krivan was working in sec. E, which is the waiter sta- something out that wasn't really anything." Further, Pitter attributed
tion at the right rear of the main dining room. their conduct to believing that he was going to speak about the Union
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manded that Pitter be more specific as to what exactly named three cooks-Dave Catlett, Carl Datz, and Peter
the waiters did to warrant discipline. Pitter agreed to do Paccone-and two waiters-Don Jackson and one other.
so, said that the new letters would be available that Finally, Krivan averred that the above had never before
night, and went upstairs to his office. Shortly thereafter, been done by Pitter.' 6 During cross-examination, Kri-
Cacho and Krivan left the restaurant. 14 van's testimony became inconsistent. Thus, when asked
At approximately 7:30 p.m., Krivan and Cacho re- to repeat exactly what he overheard Pitter saying to the
turned to the restaurant and met with Pitter in the dining above-named individuals, Krivan admitted that "I didn't
room. The subject matter of this meeting is in dispute. hear Howard say anything directly to anyone there" and
According to Krivan, he began by asking Pitter for the that all he observed was Pitter approaching a number of
revised warning letter, and Pitter responded that he had employees, carrying the red schedule book. Later,
changed his mind and would forget the incident "out of Krivan testified that he observed Pitter walking through-
the goodness of his heart." Not willing to let the matter out the kitchen, dining room, and main wait station, ap-
rest, Krivan replied that what had occurred was a matter proaching "everyone in the kitchen and several wait
of employee rights and that Respondent had committed people," and that he knew what Pitter asked each em-
an unfair labor practice by calling a general employee ployee based upon reports to him. Further during cross-
meeting without giving the Union a chance to respond. examination, Krivan reverted back to his original testi-
Pitter repeated that he wanted to forget the entire inci- mony saying, "I believe I did overhear [Pitter] asking
dent and had decided to destroy the warnings. Krivan one or two people about the changes in the schedule."
responded, stating that he was upset with the way FPtter Specifically as to Dave Catlett, Krivan suddenly recalled
was harassing and interrogating employees. Pitter did not that Pitter asked whether he wanted any changes and
answer that accusation but again responded that it would that Catlett replied, not right then. The subject matter
be a good idea to forget the entire matter. Refusing to do was dropped on cross-examination after Krivan claimed
so, Krivan replied that the incident was a matter of em- that he could recall none of the other conversations. Re-
ployee rights and that he would not just forget what markably, however, on redirect examination, Krivan was
happened. The meeting ended with Krivan and Pitter able to remember two other employees to whom Pitter
agreeing "to let things cool down" and with Pitter spoke regarding schedule changes and that to each, Karl
agreeing to place a note in Krivan's file regarding what Moeslieu, a kitchen aide, and Jose Cruz, Pitter asked if
had transpired." he wanted any schedule changes. Pitter specifically
According to Cacho, Pitter began stating that he
would not discipline either Krivan or Cacho for the inci-would not discipline either Krivan or Cachs o for the nci- van's utterly contradictory testimony, I credit the denial.
dent. Cacho said that he felt there was no reason for theat paragraph 6(m) of
letters, and Pitter responded that whatever the reason, he the amended consolidated complaint, which concerns thethe amended consolidated complaint, which concerns thejust wanted to forget the incident and to "sit down and aforementioned alleged conduct, be dismissed.
aforementioned alleged conduct, be dismissed.
work on the real problems and . . . what grievances we
had .. we could resolve and come to some amenable As a result of the Union's petition, a representation
ends." They then discussed a waiter, named Steve, re- election was scheduled for August 15. According to
garding an assignment problem, and the conversation Cacho, he had a conversation with Anna Schipani at ap-
endedi proximately 7 p.m. near the cashier's stand on the night
Pitter's recollection of this conversation was rather before the election. Anna, who had never spoken to
brief but more corroborative of that of Krivan than the Cacho at length before, called him over and asked,
testimony of Cacho. Thus, according to Pitter, "I told "what do you think of the union ... land] I replied
them I had thought about it and I had decided not to go don't you know all Mexicans are union members. She
ahead and give them the letters and, you know, can't we said . . . if the union wins, I wouldn't want to be you.
just . . . work together." Pitter did recall that the meet- . . Johnny's a nice guy and he really looks after his
ing ended amicably. Because Krivan and Cacho conflict, employees. He's such a good guy that I know if the
I do not credit Cacho's testimony that Pitter offered to union wins, God's going to get you in some way or an-
adjust any problems or grievances; however, because his other." Cacho, who took her comments "sort of in jest,"
testimony was more complete about what apparently responded in a flippant manner, "and she said, no I mean
was a lengthy conversation, I credit Krivan's version of it. . . I don't understand why you're doing this to him.
the meeting, specifically noting his rather belligerent atti- I said, doing what? And she goes, this whole union
tude. thing." The conversation continued with Anna saying
Krivan next testified during direct examination that on that she did not understand why Cacho, who had been
Sunday, August 12, he observed Pitter arrive at the res- employed for just a year and a half, would try to bring
taurant at approximately 5 p.m. and, with his small, red in a union. Cacho replied that if the employees believed
schedule book, proceed "to ask all the employees for her husband was "such a great guy," they would not
changes in their schedules." When asked to specify to vote for the Union. The meeting concluded with Anna
which employees he overheard Pitter speaking, Krivan reiterating "that if the union came in or even if Giovan-
ni's lost or won by a slight margin, she wouldn't want to
4 Cacho testified that after he returned to his apartment, Pat Roberts
telephoned and said that Pitter had decided against giving them warning " According to Krivan, in the past employees were never consulted
letters and just wanted to discuss the issues with them that night. about their hours; rather, employees were scheduled according to need.
'' The note reads as follows: "Joe Krivan has had no letters of disci- As to changes, waiters could ask for a change in writing and Respondent,
plinary action, and his file contains only employee related information." in its discretion, could act thereon.
GIOVANNI'S 239
be in my shoes. " The conversation ended on that Krivan testified that assignments to the various waiter
note. stations are made on a rotating basis. Notwithstanding
Anna Schipani admitted having such a conversation. this system, he asserted that since the spring of 1979 he
Thus, she testified that she spoke first, calling Cacho a had regularly been assigned to the larger, faster moving
nice guy and asking, "How did you get involved in waiter stations'' but that after the election, "every shift I
this?" Cacho responded that all Mexicans are union worked, I was at a less active section." In Krivan's opin-
people. Anna then asked Cacho for his age; he replied ion, the less active sections had fewer tables and were
that he was 24 years old and asked why she wanted to not being seated as often by the restaurant hosts. Fur-
know. Anna responded that Cacho did not know what ther, he testified that he began noticing that waiters, who
he was doing, that her husband had been in the restau- ordinarily did not work in sections A, B, D, and the
rant business his entire life, and that the Union was a boathouse because of inexperience or ability, were work-
Hitler-like organization, which was only interested in ing in those sections in place of himself and Cacho, who
taking over the restaurant. Then she asked why the em- also should have been regularly assigned to those sec-
ployees had not gone to her husband first if there were tions. As the situation became increasingly intolerable
problems. Finally, while denying warning that she did after the filing of the objections, Krivan allegedly com-
not want to be in Cacho's shoes if the Union won, Anna plained to Pitter on the Wednesday following said
admitted saying, "It isn't fair to John and God is going filing-August 29. "I objected to the sections I was
to punish you, Bernard." As between Anna Schipani and working. I said, 'I'm being assigned to the smaller sec-
Cacho, as previously mentioned, I found the latter to be tions. Why?' He had no answer to that." Also, according
a more candid and truthful witness and, therefore, I to Krivan, he complained to Chaikow on several occa-
credit his version of the aforementioned conversation. sions that day and on the following Friday, August 31;
however, nothing was done to correct the situation. 19
2. The alleged postelection harassment Cacho, who began working for Respondent in Febru-
The election was held as scheduled, with an apparent ary 1978, testified that when he was first employed, he
majority of employees voting against representation by was normally assigned to the least-liked waiter stations-
the Union. " On August 22, the Union filed objections to sidewalk, when more than one waiter, and E-but that
the election with Region 32 and, when Respondent re- as he gained experience and expertise, he began receiving
ceived a copy of said objections, Pitter immediately assignments to the better sections-A, B, D, and the
posted the document on the employee bulletin board. boathouse.20 According to Cacho, this trend did not con-
According to Krivan, he asked several employees if they tinue after the election; rather a reversal occurred, with
would cooperate in the Board's investigation of the ob- Cacho again receiving mostly sidewalk, E, and C waiter
jections. He did this in the restaurant, and he also gave assignments. Upset at the situation. Cacho assertedly
an affidavit regarding Respondent's preelection conduct. complained once or twice a week to Chaikow, asking
While Krivan testified that these activities were confi- him why he was receiving such assignments. The latter
dential, Pitter admitted that he believed the sources for merely responded that Cacho should not be so paranoid
the alleged objectionable conduct were Krivan and and that his assignments had nothing to do with the
Cacho. Union.
The amended consolidated complaint alleges that sub- Regarding waiter assignments, head waiter Chaikow
sequent to the election, Respondent commenced a pat- testified that he is solely responsible for such assign-
tern of unlawful discrimination by assigning Krivan to ments, that these are prepared on a weekly basis on the
less desirable work stations than he had previously been Tuesday of the preceding week, and that Pitter neither
assigned. Echoing this allegation, Krivan asserts, "I was plays any role in the assignment process nor orders or
scheduled to a number of smaller sections than I had requests changes-unless a particular individual is sick
been accustomed to working." The record evidence is as and cannot work. As to his method of assigning waiters
follows. Krivan testified that some waiter stations are to particular sections, Chaikow testified that he keys the
larger or otherwise more desirable than others and that sections to the weekly work schedules which are pre-
these include sections A, B, D and the boathouse. He pared by Pitter. Thus, waiters normally work on certain
further identified the smaller, less desirable sections as E, days of a week, and for each day of work, Pitter assigns
C, and the sidewalk-if more than one person is waiting a shift (lunch or dinner) and the hours (5 p.m. until mid-
on tables. Regarding the more desirable sections, Krivan
on tablted thats. Regarspondent's policy was to place the better According to Krivan, he had a conversation with Pitter in April or
stated that Respondent's licy was to place the better early May in which the latter told Krivan that he was a "strong waiter"
waiters on "stronger sections because you need those and that on weekends he would be needed in larger sections "to help
people to take up the maximum volume of tables you're turn over the tables .... "
going to be having if it's going to be a busy night." As A' On cross-examination. Krivan contradicted himself, stating that he
to those sections which he felt were slower and less de- complained to Chaikow on just two occasions after August 22. On thefirst occasion, Chaikow said he would do something; on the second occa-
sirable, Krivan bluntly testified that these "are the crap sion, Chaikow apologized, saying he could do nothing about Krivan's
sections because you get stuck with all sorts of side work problems. Later during cross-examination, Krivan reversed himself again,
to do. You have less tables. Everybody knows that you testifying that I "complained to Chaikow several times after the 22nd."
are stuck when you get that kind of a section." 920 Corroborating Krivan, Cacho stated that most waiters did not like
the center sections or E because of the amount of sidewalk involved, the
size and composition of groups seated in those sections. and because cus-
7 Krivan was the Union's observer during the election. tomers just did not like those seating locations.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
night, 6 p.m. until I a.m., etc.). According to Chaikow, example, the former testified that on September 1 he
"[P]eople who were going to be scheduled to leave early could have assigned either Krivan or Cacho to work in
would be scheduled in the center and sidewalk sections. sections D and E and ultimately decided to assign sec-
The people who are closing will be scheduled in . . . A, tion D to Cacho inasmuch as the latter was scheduled to
D, B, and E. They'll be staying till closing." 2 ' Essential- start earlier and as the left side was normally seated
ly, then, Chaikow assigns the sections around the wait- first. 2 Moreover, as proof that Chaikow did, in fact,
ers' work schedules, choosing particular sections for par- follow a rotation system in assigning sections is his note-
ticular waiters "on a rotating basis." On this latter point, book of assignments. Analysis thereof discloses that all
Chaikow testified that he divides waiter assignments into waiters who were assigned to sections A, B, D, and the
what he termed "section weeks." Each week begins with boathouse also worked in the undesirable sections-C
the waiter's first shift in any particular week; section as- and E. Finally, with regard to section A, Krivan main-
signments are rotated within that week so that the waiter tains, and the record corroborates, that he was not as-
does not receive the same station on any two nights or signed to that section after August 15. However, the
days (but the same section may be given for separate record also discloses that he was not assigned to this sec-
lunch and dinner shifts); and assignments in I week have tion at any time from August 1 through August 15, a
no relation to assignments in any other week. period during which no discriminatory pattern of job as-
Regarding Krivan's work assignments from August 15 signments is alleged. As to section A assignments in gen-
through September 1, the record establishes that he eral, Chaikow credibly testified that it was Respondent's
worked three separate weekly periods-August 17 policy to only assign that section to head waiters or
through 19; August 22, 24, 25, and 26; and August 29 those with the most seniority and skill "because they
through September 1. While Krivan asserted that on have to perform a lot more work than anybody else."2 3
"every shift" during this time period he worked the Further, and specifically contradicting Krivan, Chaikow
slower, less desirable sections (E, C, and sidewalk), the testified that Krivan was never assigned to section A
record does not support this contention. Rather, accord- during 1979 because he did not like to remain in the res-
ing to Chaikow's uncontroverted assignment records for taurant when there were no more occupied tables.
this period, Krivan worked at the following stations: Krivan did not deny this testimony.
Despite the above evidence to the contrary, Krivan as-
serted, as proof of his poor station assignments, that his
tip income dramatically decreased-"It was about $20 or
Date Assign- Shift $30 an evening less." Explaining his statement, Krivanment Hours testified, "The amount of business varies each evening,
August 17 B 12-5 and each weekend and each day. In different sections
August 18 B 12-2 you are going to generally make less money, is what I
August 18 E 6-1 mean. Just because E on one night might be more money
August 19 B 4-12 than an E on another day doesn't mean that I didn't lose
August 22 Cter Left 6-12 money. It's relative to what everybody else made in the
August 24 D 12-5 restaurant in terms of how much business we had that
August 25 C 12--2
August 25 C 12-2 day." However, the only evidence, which was offered to
August 26 E 4-12 support Krivan's claim of reduced tips-his own daily
August 29 E 12-2 diary of 1979 tip income-does not substantiate his testi-
August 29 B 6-12 mony. Rather, comparison of his post-August 15 tip
August 31 B 12-5 income with comparable 1979 workweeks establishes
Sept. I D 12-2 that his tips after August 15 were, at least, equal to, if
Sept. I E 6-1 not slightly higher than, other periods. Thus, while
Krivan believed that he began receiving discriminatory
assignments after August 22, his tips for 4 workdays
during the week of August 22 totaled $200. In contrast,The most striking aspect of this chart is, of course, the
number of times Krivan worked in sections B and D- during 4 days of work in each of the weeks listed below
sections which he and Cacho considered to be among Krivan earned tips as follows:
the more desirable waiter stations. Also, one of his as- Week of Tips (total)
signments to section D was the dinner shift on August 6/28/79 $181
25. Of paramount significance is the fact that this date
was a Saturday, which is the busiest night of the week in
the restaurant and the night during which waiters earn 7/12/79 $203
the most tips. On his part, Chaikow's testimony was logi-the ost tips. n his part, haiko 's testi ony as logi- '~ Examination of Cacho's work stations after August 15 also reveals
cal and lucid as to the various factors he considered in several assignment s to ections D and B. In note that on
making the above-described assignments to Krivan. For Sunday, August 26, Cacho worked in section B during the dinner shift
and, of course, that he worked section D on the night of September I, a
23 Chaikow testified that waiters, who are scheduled to leave prior to Saturday.
closing, normally are given the centers or the sidewalk. While people 23 The section A job duties included keeping the main wait station
may be seated in the center after the waiter has departed, said customers stocked with all necessary supplies and staying until closing even if no
are picked up by the corner waiters. tables were occupied.
GIOVANNI'S 241
7/19/79 $212 to Paccone at least 20 times, Krivan recanted his earlier
7/26/79 $180 testimony that these were made over a 3- to 4-day
8/1/79 $182 period; rather, they were spread over two weekends.
8/15/79 $143 Also, Krivan admitted being extremely critical of Pitter's
early job performance.
When confronted with these figures at the hearing, Cacho corroborated Krivan as to food problems, testi-
Krivan averted that he would have earned more during fying that he often picked up orders with the food im-
the week of August 22 if he had been assigned to strong properly prepared or with wrong side orders. As did
areas.2 4 What seems closer to reality-and the truth--is Kriva Cacho blamed most of these problems on Peter
head waiter Chaikow's denial that tip income is depend- Paccone "because it seemed that he had a lot to do with
ent upon section assignment; rather, "it depends upon the the areas where the problemed." Cacho furth
individual's ability." the areas where the problems occurred." Cacho further
As another example of Respondent's unlawful conduct testified that he complained to Pitter about his problems,As another example of Respondent's unlawful conduct
after-and as a result of-the filing of the objections, the showing him the customer checks or the badly prepared
amended consolidated complaint alleges that Respondent food. According to Cacho, Pitter would respond that
"condoned" a pattern of general harassment and denigra- cooks "are human, they make mistakes."
tion by employees of union adherents-namely, Krivan During his testimony, Peter Paccone did not deny-
and Cacho. Krivan testified that, after the filing of the and, in fact, candidly admitted-that the above problems
objections to the August 15 election, he began encoun- may have occurred. Thus, he testified that he had just
tering problems with placing and receiving his food and been hired in late June and that, although hired as a
drink orders. While not alleging instigation by Respond- saute cook, he had never previously done such work and
ent in either instance, Krivan further testified that Pitter encountered many performance problems. As a result,
was aware of his problems, did nothing, and, in fact, may waiters, including Krivan, were constantly complaining
have encouraged said conduct by an overtly hostile atti- about orders being delayed or misread and food being
tude toward Krivan. As to his food orders, Krivan as- improperly prepared. While denying intentionally refus-
serted that these were being prepared improperly, often ing to cook or sabotaging orders, Paccone admitted ar-
delayed, and occasionally not prepared at all. As a result, guing with Krivan over food orders, losing orders in
according to Krivan, he faced hostility from his custom- sauce pots, and being counseled by Pitter regarding his
ers who often had to wait abnormally long periods for job performance.
their food, or received incorrect orders, or would be Besides food order problems, Krivan asserted that he
forced to eat cold food. To protect himself, Krivan experienced difficulty having his bar orders filled after
began specifying on the customers' checks what prob- August 22. According to Krivan, the main source of
lems he encountered in serving them. these problems was bartender Eddie Dupont. Krivan tes-
Krivan further testified that he was not reticent about tified that after the objections were filed and posted on
complaining to the kitchen personnel about his difficul- the bulletin board, his customer drink orders would be
ties, with most of his complaints directed to Peter Pac- returned half full, frozen, watery, or not filled at all and
cone, who, according to Krivan, worked at the order that these problems occurred "all the evenings I
window, controlled the order tickets, and coordinated all worked" after August 22. While not complaining to
food leaving the kitchen. Krivan states that over one 3- Pitter, Krivan allegedly did complain to Chaikow and
or 4-night period, he made 20 separate order complaints Dupont with regard to his bar order problems. While,
to Paccone and that the latter gave him no adequate re- according to Krivan, Dupont made no response, Chai-
sponse-"He would smile." On one occasion-August 28 kow did speak to Dupont; however, the situation did not
or 29-with a customer waiting longer than normal for a change. Finally, as to both his food and drink problems,
steak order, Krivan complained directly to Pitter. The Krivan admitted that on all occasions he eventually re-
latter immediately went to the kitchen and instructed ceived the correct order "after a long period of time
Paccone to cook Krivan's order. On another occasion, elapsed."
however, Krivan allegedly complained to Pitter about According to Cacho, he also experienced trouble with
not receiving pasta orders; Pitter, according to Krivan, bartender Dupont. Contrary to Krivan, however,
was "unresponsive." As to the reason for his problems Cacho's problems with Dupont, which problems primar-
with Paccone, Krivan contended that the former "was ily concerned the latter regularly placing Cacho's bar
very vocal about his opposition" to the Union. During orders behind those of other waiters, began prior to the
cross-examination, while reiterating that he complained election and originally were a joke between the two of
election and originally were a joke between the two of
:" Cacho also asserted that his tip income suffered from the allegedly them. Cacho further testified that Dupont once admitted
poor assignments. However, he contradicted Krivan as to the nature of to him that Cacho's union activities were the source of
the problem. While the latter argued, with no supporting evidence, that the friction between them. Dupont was not called as a
the scope of the discrimination could only be established by comparing witness by Respondent; consequently Krivan's and
his tip income to that of other waiters on any evening after August 22.
Cacho would establish the discrimination by comparing his pre- and post- Cacho's bar order problems are uncontroverted.
election tip totals. "[The discrimination] cut it down. It cut my tips down As a last instance of alleged condoned conduct,
and my take home pay . . .close to 50-percent." Cacho later contradict- Krivan asserted that unknown individuals wrote graffiti
ed himself during cross-examination regarding this 50-percent figure, ad- over union-related literature which he posted on the em-
mitting it may be closer to 30 percent. Finally, as did Krivan, Cacho re-
verted to the unsupported contention that other waiters "were making ployee bulletin board and that someone inserted the epi-
substantially more than me." thet "asshole" across his work schedule for the week of
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 27. Regarding the latter incident, Krivan testified sensed "in the air" after the election that employees were
that he first became aware of the defilement of his sched- not as friendly toward Krivan and Cacho as before and
ule on Tuesday, August 28; that he spoke to Pat Roberts overheard conversations to that effect; that employee re-
about the problem the next day; that the latter promised sentment of them manifested itself in the "cold shoulder"
to correct the matter; that Respondent's "solution" was treatment; and that he believed the sources of this atti-
to place a small piece of cardboard over the word; that tude were Krivan's and Cacho's strong support of the
anyone could peer under the cardboard strip and observe Union and its loss of the election. The record further dis-
what was written on the schedule; and that the matter closes that while aware of the friction, Pitter made abso-
was not finally resolved until a new schedule was posted lutely no effort to stop it. Thus, he admitted, "There's
4 days later. Regarding this incident, Pitter testified that not much you can do about a cold treatment." Also,
as soon as he noticed Krivan's schedule covered by a while admitting that the problem concerned him, Pitter
piece of schedule paper and what was written, he tore it believed "everything would blow over." Finally, Pitter
down, and "I made a new schedule." disavowed any sharing of, or support for, employee hos-
As to the food and drink problems of both Krivan and tility toward Krivan or Cacho, averring that he, at all
Cacho and other alleged harassment, the General Coun- times, maintained a "professional attitude" toward the
sel does not contend that either Peter Paccone or Eddie two union adherents.
Dupont acted as agents of Respondent. Rather, it is con-
tended that "employees would not have been so brazen 3. The discharge of Joseph Krivan
in their harassment of Krivan and Cacho if such action Krivan's last day of work was Saturday, September 1.
was not being tacitly, and in some cases, overtly encour- He was scheduled to work from 6 p.m. until closing and
aged by Respondent." In support, counsel for the Gener- was assigned by Chaikow to work at section E. Krivan
al Counsel offered testimony from Krivan that, on testified that he took his normal lunch break from 9 until
August 29, Pitter approached him and said, "You are 9:30 p.m. and that at approximately 11:50 p.m. Chaikow
taking this too far. You ought to see a doctor." Krivan "cued"2 7 him for his second break.28 At the time, Krivan
next testified that on September 1, shortly after he re- had two unfinished tables, and he walked over to the
ported for work that night, he walked past Pitter on his wine press to total the checks.2 9 While doing so, he
way into the kitchen. Pitter, who did not see Krivan ap- spoke to Cacho, and as they conversed, Peter Paccone
proaching, was softly singing "Joe must go, Joe must approached Cacho from behind and poured spaghetti
go." According to Krivan, cooks, who apparently were sauce down Cacho's back.30 Cacho immediately walked
listening, saw him approaching and began laughing. over to the main wait station with Paccone in pursuit,
During cross-examination, Krivan identified the cooks as picked up a soup ladle, dropped it, and just left the res-
Datz and Holbert; however, in a pretrial affidavit, he taurant.
identified one of the cooks as Paccone rather than Hol- According to Krivan, the incident upset him. Thereaf-
bert. Pitter denied the incident. As between Pitter and ter, he returned to his work station and was taking
Krivan and as there is no corroborative testimony, I excess bread back to the kitchen when the cashier yelled
credit the denial of Pitter that the incident ever oc- that he had a telephone call. Cacho was the caller, and
curred. Finally, Krivan testified that, also on September he cautioned Krivan to just forget the above incident.
I, he overheard Pitter speaking to employee Karen However, as he was returning to section E, Krivan
Ohme by the bar. As he approached, Ohme said, "It passed Chaikow and informed the latter that he was not
makes me sick that he's still making money." Pitter sure he would work any more that day because he had
agreed, and Krivan cleared his throat as he passed by. In had enough for the evening. Chaikow told Krivan to
a pretrial affidavit, Krivan stated that this incident oc- keep him informed so that he could assign someone else
curred on August 29 and, during cross-examination, to section E.3 ' At that point and inasmuch as his section
Krivan admitted that Ohme did not mention Krivan by was then empty, according to Krivan, he wandered over
name, that he walked up behind Ohme, and that "she to the main wait station. A minute later Chaikow ap-
was making the comment before she saw me . I " proached and informed Krivan that two tables had just
Pitter failed to deny either the August 29 incident or the been seated in his section and asked if Krivan would
latter conversation. wait on them. The latter replied, "I don't know what I'm
During his testimony, Howard Pitter specifically
denied knowledge of either Krivan's or Cacho's alleged In Respondent's system, "cueing" signifies that a waiter is to start
food and drink problems or that he ever instructed Pac- preparing to take a break.
cone or Dupont to engage in their attributed conduct.2 2" Waiters normally are given two breaks during a shift-an unpaid
half hour lunch break and a paid 15-minute break later in the shift.However, the record does disclose that Pitter was acute- " Krivan testified that the restaurant was "kind of emptying out" but
ly aware of overt employee hostility toward Krivan and that there were a few customers remaining.
Cacho after the August 15 election. Thus, while denying "0 There is no dispute about this specific incident. The record discloses
knowledge of specific acts other than the "asshole" epi- that earlier that evening Cacho and Paccone had some sort of an alterca-
thet on Krivan's work schedule, itter admitted that he tion near the kitchen.
thet on Krivan's work schedule,'2 61 Pitter admitted that he 31 There were II waiters assigned to work that night with everyone
scheduled to leave at midnight except Krivan, Cacho. Chaikow, Dave
2, Pitter credibly testified that waiter complaints about wrongly pre- Jackson, and Pow Purgsaphakorn. Thus, after Cacho left, there were
pared food orders are commonplace in the restaurant. only three regular waiters to serve the entire facility. Pitter testified, "It
" Pitter did not specifically deny that Krivan complained to him about was busy for four waiters. I mean not super busy . . . but busy for four
problems with his food orders. waiters. I needed four waiters on."
GIOVANNI'S 243
going to do. I think I want to leave and I think I want a denying that he cued Krivan for a second break that
break. But I had enough for the evening. So [Chaikow] night.
said okay and walked away." 3 2 Immediately thereafter, Howard Pitter testified that he first became aware of
Pitter approached Krivan and said, "'You've got two any problem in the dining room when Peter Paccone en-
tables in your section. Are you going to wait on them?' tered his office and informed Pitter about the Cacho inci-
Again I said, 'I had enough for the evening. I don't dent. Pitter immediately went downstairs and was stand-
know what I'm going to do. I think I want a break. I ing near the kitchen when Chaikow approached, report-
don't know what I'm going to do."' Pitter then stepped ing that "[Krivan] says . . . he's probably going to be
away, looked over toward section E, walked back to leaving." Thereupon, Pitter looked into the section E
Krivan, and said, "Well, if you don't want to wait on the area, observed two new parties who apparently were
tables, you quit." Krivan denied that he was quitting and awaiting service, and went looking for Krivan. Finding
reiterated that he did not know what he was going to do him near the main wait station, Pitter told Krivan that
but that he was not quitting. Pitter responded that there were two new tables in his section, but Krivan re-
Krivan had indeed "quit," took the latter's timecard, plied, "I'm not going to take them. I'm leaving. I've had
signed it, and ordered Krivan to "get lost." Pitter then it for tonight, I'm leaving." Pitter asked what Krivan
walked away. Denying that any waiters approached and meant and said, "Don't be silly. You've got orders to
pleaded with him to stay and wait on his tables, Krivan take. We're short to begin with .... please take the
remained at the restaurant for at least half an hour before orders."
leaving. Just before doing so, Pitter walked over to him, Krivan failed to either move or make any sort of re-
asked why he was still there, and ordered him to leave. sponse. Leaving him, Pitter walked over to waiter Dave
Krivan responded that he had not quit; Pitter replied Jackson and, according to Pitter, asked him to persuade
that he had; and, according to Krivan, he thereupon left Krivan not to leave. Jackson agreed, and Pitter waited 5
the restaurant. minutes to determine if Jackson could succeed. Howev-
The record establishes that Krivan has given contrary er, after speaking to Jackson, Krivan remained standing
accounts of the events of that evening. Thus, in a pretrial at the wait station. Pitter then walked over, again re-
affidavit dated November 14, Krivan stated that it was quested that Krivan wait on the new tables in his section,
Pitter who first notified him that two new tables had and warned that if Krivan just stood there, he (Pitter)
been seated in section E, but in an affidavit dated No- would clock Krivan out just as if he stopped work and
vember 19 and at the hearing, he identified Chaikow as quit. Krivan replied that he was leaving but was not
that individual. Also in the November 19 affidavit, quitting. Thereupon, Pitter signed Krivan out.
Krivan placed Pitter "a little ways behind" Chaikow Careful analysis of the testimony concerning the
when the latter spoke to him for the second time that events of September 1 convinces me that the corrobora-
night; however, during direct examination Krivan said tive versions of Pitter and Chaikow are more logical and
nothing about Pitter's presence, leaving the impression consistent with the surrounding circumstances. Thus, I
that the latter was nowhere nearby. Finally, in the No- do not believe that Chaikow would have so readily-if
vember 19 affidavit, Krivan quoted Pitter as asking "Was one credits Krivan's testimony-permitted Krivan to
I leaving," while he failed to mention this question leave when only three waiters were available to serve
during his testimony. the entire restaurant for, at least, an hour more. Also, I
Chaikow testified that after Cacho left that night the note that Krivan gave contradictory accounts of what
occurred that night. Accordingly, I credit Pitter andrestaurant was less than half full (16-17 active tables) but Chaikow as to the events of Saturday night September
Chaikow as to the events of Saturday night, Septemberthat just three waiters-besides himself-remained on I
duty. He further testified that he became aware that two
new tables had been seated in Krivan's area but that the Evidently in an effort to establish that he had not quit
latter was not servicing them. Chaikow located Krivan the previous nght, Krvan reported for work on Septem-
near the wine arbor and instructed him to wait on the ber 2 at his normal starting time. While he was speaking
tables Krivan replied, "I don't fee like staying I'm not to headwaiter George Loung, Pitter came over and
asked what Krivan was doing there and, after Krivan in-sure if I'm staying." Chaikow reminded Krivan that he asked what Khvan was doy g there and, after Krivan in-
dicated that he was ready for work, told Krivan that thewas scheduled until I a.m. but Krivan again refused to th
wait on the tables. Chaikow then asked if Krivan was latter had quit and demanded he leave the restaurant. Averbal altercation ensued, finally ending when Pitterquitting, and after the latter said no, Chaikow went to f orc ed Krivan out the door.
find Pitter.
Finding Pitter, Chaikow told him what had just oc- 4. The termination of Erich Frisch
curred and asked Pitter to speak to Krivan about waiting
on the two new tables in his section. Thereafter, while Erich Frisch was first hired by Respondent in March
he overheard nothing, Chaikow observed the following 1978 as a saute chef and worked through December of
sequence of events: Pitter spoke to Krivan; waiters Dave that year. On a Saturday Frisch felt ill and telephoned
Jackson and Pow Purgsaphakorn next spoke to Krivan; the restaurant. A hostess answered the telephone and, ac-
and Pitter again spoke to him. Chaikow concluded, cording to Frisch, told him that no managers were on
duty. Frisch asked her to leave a message for Pitter that
a" Krivan had no knowledge whether, in fact, new tables had just been he was ill and would not work that day. The next day
seated in his section. when he reported for work, Frisch noticed that his time-
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card was missing. He asked Pitter why and the latter re- Frisch testified that on Sunday, September 2, his shift
sponded that Frisch had "quit yesterday." When Frisch was scheduled to conclude at 5 p.m. At approximately
protested and explained what he had done, Pitter re- 4:30 p.m., Frisch observed Krivan enter the restaurant,
sponded that Frisch should have spoken to a manager.33 heard the latter and Pitter shouting at each other, and ul-
For the next 6 months Frisch was unemployed, then, in timately observed Pitter force Krivan out the front door
June 1979, Frisch unexpectedly met Pitter at another of the restaurant. A few minutes later, Frisch observed
Berkeley restaurant and inquired about working on a police officers enter and speak to Pitter and George
summer vacation relief basis. Pitter said he would think Loung. By that point his shift had ended, and Frisch
about it and subsequently telephoned Frisch at the end of walked outside. On the sidewalk in front of the restau-
the month. Pitter explained that a cook, named Tang, rant, Frisch observed Krivan, Cacho, Cacho's girlfriend
was going on vacation and said he could offer Frisch Leslie, and four or five others carrying signs and walk-
work on a temporary basis until August 2. Frisch accept- ing in front of the restaurant entrance. The signs read
ed, and Pitter said, "Just kind of watch your step." Pitter "Honk if you're with us" and "Giovanni's unfair to
told Frisch to start on July 6 and set his wage rate at labor." Frisch approached Krivan and asked him what
$5.75 per hour. had happened inside the restaurant. Several of the pick-
Frisch started working again as a cook on July 6. On ets then asked Frisch to join them but he refused, saying
that same day, Krivan gave him an authorization card; that he did not wish to become involved and that he
Frisch immediately signed and returned the card toFrisch .e l signe and reure t.......... card to . .,wanted to remain neutral. At that point, Leslie, Cacho'sKrivan. The next day, as described above, Pitter interro- girlfrienwanted to r emain neutral. At that point, Leslie, Cach's
gated Frisch as to possible union activities at the restau- girlfriend, asked him to hold her sign while she left to
rant. On July 10, the day following the filing of the peti- buy something Frisch agreed, and she leaned the picket
tion, Pitter again asked Frisch to come into his office. sign against his leg. Just then, Anna Schipani's brother
They were alone, and Pitter said that as soon as Tang Mark opened the front door, saw Frisch standing with
returned from vacation, another cook, Roy Chuck, was the picket sign against his knee, turned around and said
scheduled to go. Pitter continued, saying that he wanted to someone inside the restaurant, "Hey, Erich's picket-
Frisch to cover for Chuck while the latter was away ing." According to Frisch, "A few seconds later [Pitter]
"and he asked me if I wanted to stay on permanently, peeked out the door and saw me, and just kind of shook
and said he thought he could work a raise for me, get a his head.""5 Deciding that Respondent would obviously
raise to $6.50 or $7.00 or $7.50 an hour." Frisch respond- conclude that he was a union adherent, Frisch joined in
ed that it seemed good to him and told Pitter that he had the picketing for the remainder of the evening.
received job offers from four other restaurants after he Frisch worked the next 2 days without incident. Not-
completed his summer relief work for Respondent.3 4 withstanding that September 5 was his day off and inas-
Pitter ended the conversation, stating that he had "to much as it was payday, Frisch went to the restaurant
talk to his lawyers about the raise because of all the with Krivan and Cacho to obtain his paycheck. Eddie
union b-s-t that was going on." Frisch responded that Dupont was handing out the checks but did not have a
he would contact those other restaurants and refuse their check for Frisch. Anna Schipani's sister told Frisch that
respective job offers. she would get Pitter, and a few moments later the latter
In early August, Frisch sought to obtain a loan from came downstairs from his office. Pitter handed Frisch his
Wells Fargo Bank. Pursuant thereto, on August 10, he regular paycheck, a check for the previous 2 days, and 2
spoke to Pitter in the latter's office. Frisch handed him a free dinner passes and said, "Roy is back. Vacation time
"Verification of Present Employment" form, explained is up. We don't need you anymore."3 6 Pitter turned and
its purpose, and asked Pitter to complete it. Pitter re- started back upstairs. Frisch asked the former to wait,
sponded that he would read it "and see what I can do." but Pitter responded, "I don't have time for you right
Subsequently, Pitter did so and returned the document to now. I'm interviewing somebody upstairs." 37
Frisch the next day. In the space therein marked "Prob- Contrary to Frisch, Respondent denies that it ever in-
ability of Continued Employment," Pitter wrote "POSI- tended to hire Frisch on a permanent basis in 1979.
TIVE." According to Frisch, he and Pitter again spoke Rather, it is asserted that Frisch was a particularly
regarding a raise on the last Friday in August. They sloppy and hazardous cook and that, aware of Frisch's
spoke at approximately 6 p.m. in the back of the kitchen, deficiencies, Pitter intended to employ him until the two
and Pitter said, "We've decided to cut out the [Sunday cooks, Tang and Roy Chuck, completed their vacations.
buffet] .... By the way, you have a raise to $6.25 an Further, Respondent denies any knowledge that Frisch
hour." Frisch thanked Pitter, and the conversation engaged in picketing after 5 p.m. on September 2. In sup-
ended.
35 In his pretrial affidavit, while stating that Pitter peered out at him
J3 According to Pitter, Frisch's conduct was violative of Respondent's while he picketed, Frisch failed to mention that Pitter shook his head in a
call-in policy-that employees must communicate directly with a man- negative manner Frisch attempted to explain this discrepancy, citing his
ager with regard to absences. Pitter admitted treating Frisch's termina- nervous state at the time of the affidavit. However, he admitted having
tion as a quit "because he had the choice to come to work and he didn't made other substantive changes in the affidavit before signing it.
come to work and did not call." 36 Frisch admitted that neither check reflected the raise allegedly
3, Regarding these job offers, Frisch credibly testified that he received promised by Pitter. Moreover, there is no evidence that Frisch was re-
them soon after he agreed to work for Respondent during the summer. placed by any other cook
Three of the restaurants were in Berkeley-Martino's, The Good Earth, 3 Frisch testified that in August he saw an advertisement in the
and International Cafe-and the other, Washoe Zephyr, is located in Sunday San Francisco Examiner/Chronicle by Respondent for various
Reno, Nevada. categories of employees, including cooks.
GIOVANNI'S 245
port, Pitter testified that, during his employment in 1978, Pitter testified that he was merely trying "to help Erich
Frisch was sloppy and careless in his work and would out . . . to help him get a loan." Pitter further testified
not readily take orders.38 Kirke Byers, one of Respond- that he had completed such documents in the past.
ent's head cooks, testified that while he worked along- Asked whether he had ever lied on such a document,
side Frisch in 1978, he observed the latter to be over- Pitter responded, "I don't know. I could have."
bearing, unclean, dangerous, and a hazard to other em- As to Frisch's picketing, Pitter testified that he was
ployees while frying foods because of a propensity to unaware of Frisch's union adherence until he observed
splatter grease and, thus, cause burns. Despite this rather Frisch picketing on the day after he was terminated-
negative assessment of Frisch's performance, Byers could September 6. As to the events of September 2, while
recall only a single instance of hazardous cooking-in freely admitting that he looked outside that evening and
which Frisch was cooking with too high a flame and observed Krivan and others picketing, Pitter staunchly
while tossing food into the air, splattered grease onto denied observing or even hearing from others that Frisch
two nearby cooks. Finally, contrast Byers' testimony was also picketing the restaurant. While never waivering
with that of John Schipani, who admitted that he ob- in this testimony, Pitter admitted that the picketing that
served Frisch's work enough to form a conclusion: night was an "upsetting factor"; that employees would
JUDGE LITVACK: Well, Mr. Schipani, did you peer outside at the picketing periodically throughout the
ever see Frisch's performance in the kitchen? Did evening; that the entire restaurant staff was worried and
you ever observe him working? even scared by the picketing; that the picketing was a
THE WITNESS: Yes. big thing; and that the restaurant had never before been
Q. What type of cook was he?. .. picketed during his tenure there. Finally, Pitter testified
A. I'd say he was talented. that Frisch's termination had nothing whatsoever to do
with the Union; rather, "Vacations were over."
B. Analysis
Q. What do you mean by a talented cook?
A. I'd say he has a feel for working in a restau- 1. Joseph Krivan
rant.... He basically has the feel for cooking, but
he's just about the sloppiest person you could ever The amended consolidated complaint alleges, and
see in the kitchen. counsel for the General Counsel argues in his post-hear-
ing brief, that subsequent to the August 15 representation
* * * * * election, which the Union lost, and objections to the
conduct thereof, Respondent, directly and indirectly
Q. All right. Well, did you think he was danger- through condonation and encouragement of employee
ous to other employees in the manner and method conduct, embarked upon a pattern and practice of unlaw-
by which he [would] saute food? ful discrimination, in violation of Section 8(a)(4), (3), and
A. No. (1) of the Act, against employee Krivan, one of the two
main union supporters, which campaign culminated in
While not disputing the circumstances surrounding his discharge on September 1. More specifically, it is al-
Frisch's rehiring in June 1979, Pitter contends that he leged that Krivan and Bernard Cacho were the only
did so because "I felt like I'd help him out." and that he avowed union adherents among Respondent's employees;
would not have hired him but for Frisch's ability to cook that General Manager Howard Pitter harbored unlawful
saute. Pitter further asserts that there was no question animus toward Krivan and Cacho; that prior to the elec-
but that Frisch was rehired solely as a summer replace- tion Pitter and Anna Schipani had engaged in a blatant-
ment. Thus, according to both Byers and Pitter, the ly unlawful campaign to defeat the Union; that subse-
former informed Pitter that he would not assent to rehir-
quent to the election, Respondent retaliated againsting Frisch unless it was understood that such was only
og Frnsch unless m t wasi. understood tcat sums was oP y Krivan and Cacho by consistently assigning them to lessupon a temporary basis. In these circumstances, Pitter active-and financially unrewarding-waiter stations
denied ever offering either permanent employment or a
raise to Frisch during the summer of 1979. However, that Pitter condoned and encouraged employee harass-raise to Frisch during the summer of 1979. However, ment of Krivan and Cacho because of their strong union
Pitter did recall a conversation in early August with ment of Krivan and Cacho because of their strong union
Frisch during which the latter inquired about both per- support; that itter, bent upon retaliation against Krivan
manent employment and a raise. According to Pitter, he precipitously terminated the latter for his "momentary
evaded the questions by saying he would have to check indecision" about continuing to work after the Paccone-
with others. With regard to Frisch's performance during Cacho incident on September 1; and that, in the alterna-
the summer, Pitter averred that he was "still old Erich," tive, Krivan's alleged "quit" was, in reality, a "construc-
with the same type of complaints as in 1978. Despite this, tive discharge" based on the intolerable and onerous
Pitter admitted that in his aforementioned August con- working conditions created by Respondent. Contrary to
versation with Frisch, "I said, you're doing fine." Asked counsel for the General Counsel, Respondent contends
to explain, Pitter stated that he meant Frisch was doing that there exists no record evidence to warrant the con-
better but was still below average. Finally, while admit- clusion or inference that Respondent either discrimina-
ting his answer on the Wells Fargo Bank loan document, torily assigned Krivan to poor waiter stations as a result
of his union activities and the filing of objections to the
35To Pitter, Frisch was merely a "below average" cook. August 15 election or indirectly condoned employee ha-
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rassment of Krivan, that Krivan refused to work and, D-after August 15 and that said assignments were, even
indeed, quit work on September 1, that Respondent's on weekends, the most lucrative time of the week. More-
working conditions did not justify such action, and that, over, while both employees contended that their respec-
if terminated, Krivan was terminated as a result of his re- tive tips were drastically reduced as a result of Respond-
fusal to work. ent's conduct, analysis of Krivan's own tip records dis-
At the outset, I agree with the contention of counsel closes that his tips for the week of August 22 were equal
for the General Counsel that Krivan, rather than quitting to, if not greater than, comparable weeks during calendar
Respondent's employ on September 1, was terminated by year 1979. Further, I specifically credit the logical and
Howard Pitter. The record supports-and, indeed, war- plausible testimony of Chaikow as to his method of as-
rants-the conclusion that Pitter rather loosely utilized signing work stations in general and as to his rationale
the term "quit" to place the onus for the result of pre- for the section assignments to Krivan and Cacho after
cipitating conduct squarely on the employee rather than August 15 in particular-rationale which is completely
on Respondent. Thus, in December 1978 what obviously devoid of any unlawful motivation. Attempting to place
was the termination of employee Erich Frisch for having the unsupported testimony of Krivan and that of Cacho
violated Respondent's absence policy was treated by in the best light possible, counsel for the General Coun-
Pitter as a quit apparently because Frisch had a choice of sel argues that neither the documentary evidence nor
reporting or not reporting for work. Likewise, if Krivan Chaikow's otherwise plausible testimony reflects or takes
refused to work on the night of September 1, he was dis- into consideration such assignment factors as the number
charged for that reason, he did not quit merely because of waiters working on any given night, the locations of
he had a "choice" of working or not working. More- other waiters, and the obvious "pecking order" of work
over, while Krivan may have engaged in conduct war- locations and seating preferences. However, whatever
ranting discharge, it can hardly be said that his conduct merit there may be to utilizing these factors, the fact re-
that night evidenced any intent by Krivan to sever his mains that the General Counsel just has not established
employment relationship with Respondent. Accordingly,
while Respondent may not have specifically stated thatwhile Respondent may not have specifically stated that onerous or less desirable work stations after August 15,
Krivan was discharged, the record does warrant that nothwithstanding Respondent's motivation or even that
conclusion. Sentry Inivestigabion Corp., 249 NLRB 926 either suffered reduced tip income after that date. Ac-
(1980). . ., cordingly, there has been no discriminatory conduct inThe primary question herein concerns Respondent's
motivation in discharging Krivan-was Restaurant Man- at regard, and I shall recommend that paragraph 7(a)
ager Pitter bent upon revenge after the election for Kri- of the amended consolidated complaint be dismissed.
van's acknowledged union adherence and for the subse- As to Respondent's condonation of employee harass-
quent filing of objections to the election? Analysis of the ment of Krivan and Cacho because of their union activi-
arguments of counsel for the General Counsel establishes ties, the record establishes that the only specific acts of
the close linkage of Respondent's alleged conduct in as- harassment involved are the problems of Krivan and
signing Krivan to less desirable work stations, in condon- Cacho in obtaining proper and prompt food-and-drink
ing blatant employee harassment of him, and in ultimate- orders; the placing of graffiti upon Union-related litera-
ly discharging him. The main point of said arguments is, ture, which was posted by Krivan; and the writing of the
of course, that each of the above acts evidences Re- epithet "asshole" on Krivan's work schedule. As to their
spondent's-and Pitter's-unlawful animus toward food order problems, both Krivan and Cacho point to
Krivan. However, to accept this contention, one must Peter Paccone as the source and allege as the latter's mo-
also acknowledge the converse as true-that if the as- tivation his vehement antiunion attitude. While denying
signing of Krivan to less desirable work stations and the any sort of deliberate sabotage of food orders, Paccone
condoning of employee harassment did not occur or candidly admitted that, because of his inexperience in
were not unlawfully motivated, then it cannot be said performing such work, he caused and was the source of
that the discharge of Krivan was Respondent's ultimate many food order problems in the summer of 1979; that
act of retaliation for his union and other protected con- food orders were often lost or wrongly prepared; that
certed activities. many waiters, including Krivan, complained to him
Analysis of the record, pertaining to the allegation of about his work; and that Howard Pitter also spoke to
the amended consolidated complaint that Respondent him about his performance. As between Krivan and Pac-
discriminatorily assigned Krivan to less desirable work cone, I credit the testimony of the latter as being more
locations after August 15 because of his union activities, reliable. Moreover, there is no evidence that Pitter either
reveals that the only supporting evidence for said allega- instigated or condoned Paccone's behavior. Rather, even
tion are the assertions of Krivan and Cacho that such Krivan admitted that, after complaining to Pitter about
was, indeed, the case. There is not one scintilla of cor- Paccone on one occasion, Pitter walked into the kitchen
roborative evidence in the record. Rather, the opposite and spoke to the cook. Finally, given the fact that he
appears to be true. Thus, headwaiter Chaikow's daily as- had just recently been hired, it is hardly conceivable that
signment diary for the month of August 1979 was un- Paccone could have been as much in control over the
challenged and uncontroverted by counsel for the Gen- kitchen affairs as contended by Krivan and Cacho.
eral Counsel and clearly establishes that, contrary to the Concerning their alleged bar order problems, Krivan
assertions of Krivan and Cacho, they were often assigned and Cacho testified that the source of these was bartend-
to the more desirable waiter stations-sections B and er Eddie Dupont, and Cacho asserted that Dupont's mo-
GIOVANNI'S 247
tivation was his (Cacho's) union activities. Respondent nature of each antiunion act and that supervisors specifi-
did not call Dupont as a witness; accordingly, the testi- cally advised that the employer would do nothing.
mony of Krivan and Cacho is uncontroverted in this Herein, as discussed above, no such knowledge or con-
regard and credited. However, while Dupont may have donation can be attributed to Respondent.3 9
unduly harassed the two union adherents, remaining un- Finally, I have specifically discredited Krivan's asser-
resolved is Respondent's knowledge and alleged condo- tion that he overheard Pitter singing "Joe must go, Joe
nation of this conduct. Initially, I note that there is no must go" before other employees. Also, I note that while
evidence that Howard Pitter was aware of Dupont's ac- Pitter's alleged conversation with employee Karen
tivities, and I credit his denial in this regard. Further, Ohme, during which she said, "It makes me sick that
Krivan testified that what complaints he did register he's still earning money," and he agreed, was uncontro-
with regard to Dupont were made to Dupont himself, verted, its meaning is ambiguous, Krivan's name was not
who did not respond, and to Chaikow, who, admitted mentioned, and Ohme was utterly unaware of Krivan's
Krivan, did speak to Dupont on the former's behalf. As presence. Thus, while it is alleged that Respondent trans-
to Cacho, he could not recall having complained to man- mitted a signal to antiunion employees 40 that harassment
agement about Dupont. Thus, there is simply no record of Krivan and Cacho would be tolerated, the record just
evidence that Respondent condoned, encouraged, or does not permit such an inference to be drawn, and I
even was aware of the conduct of Dupont toward will not do so. Further, it might be argued that Respond-
Krivan and Cacho. ent was under some sort of duty or obligation to "put a
Krivan next asserted that unknown persons wrote stop" to employee hostility toward Krivan and Cacho
graffiti over union-related information, which he posted and that, by admittedly not doing so, Respondent acted
on the employee bulletin board, and that someone insert- negligently and "condoned" said conduct and, therefore,
ed the word "asshole" on his work schedule. There is no violated the Act. However, given the state of the record,
evidence that Respondent was aware of the former; as to I fail to see how Respondent could be said to have con-
the latter, I credit the testimony of Pitter that he re- doned acts about which it was unaware. Also, I do not
moved the schedule from the wall after he noticed Kri- believe that acts of omission, in such circumstances, con-
van's schedule and the piece of cardboard thereon, cov- stitute a violation of the Act. Moreover, to have investi-
ering the epithet. gated the source and extent of its employees' antiunion
Counsel for the General Counsel next argues that hostility may have caused Respondent to commit the
through its "words and actions," Respondent transmitted identical type of interrogation alleged to be unlawful
a signal to nonunion employees that harassment of herein-a result certainly not in accord with the pur-
Krivan and Cacho would be tolerated and that employ- poses and policies of the Act. Accordingly, I shall rec-
ees would not have been so brazen in their conduct if it ommend that paragraph 6(p) of the amended consoli-
was not "tacitly" or "overtly encouraged" by Respond- dated complaint be dismissed.
ent. At the outset, I note that while counsel for the Gen- As to Krivan's discharge, it is my conclusion that such
eral Counsel speaks of a "whole panoply of anti-union was not the direct result of, or the ultimate act in, any
conduct" by Respondent's employees against Krivan and sort of campaign of retaliation by Respondent against
Cacho, the record discloses only the conduct of Eddie Krivan for the latter's union activities. Based on my
Dupont, the writing of graffiti on union-related litera- above analysis, I do not believe that the record would
ture, and the word "asshole" on Krivan's schedule-of support any finding that such a campaign was ever un-
which Respondent was aware of just the latter. Never- dertaken by Respondent. However, such is not to say
theless, counsel for the General Counsel points to the that the General Counsel has not arguably sustained its
testimony of Howard Pitter and asserts that it is vague burden of proof under Wright Line, a Division of Wright
and contradictory with regard to knowledge of acts of Line, Inc., 251 NLRB 1083 (1980)-that it must "make a
harassment against Krivan and Cacho. I agree; however, prima facie showing sufficient to support the inference
the burden is on the General Counsel to establish Re- that protected conduct was a 'motivating factor"' in Re-
spondent's knowledge of specific acts of employee an- spondent's discharge decision. Thus, Pitter admitted that
tiunion harassment. Other than Pitter's admitted knowl- he was aware that Krivan was one of the two leading
edge of the "asshole" epithet, there is no such record
evidence. Therefore, Pitter's testimony, that while he 3 In Champagne Color. Inc., 234 NLRB 82 (1978), the Board found a
was aware of employee hostility toward Krivan and violation of Sec. 8(aXI) of the Act when a supervisor knowingly permit-
Cacho and believed its genesis was the union campaign ted an antiunion employee to harass a union adherent about a union and
and election result, the only apparent, to him, manifesta- did nothing to stop it. Again, I note that a major factor in the Board'sdecision was the supervisor's knowledge of the content of the alterca-
tion of this hostility was the overt "cold shoulder" treat- tion-that it involved the union. As stated above, there is no evidence
ment given to them, stands uncontroverted on the record herein that Respondent was even aware of the alleged harassment.
and is credited. In support of its arguments, counsel for Counsel for the General Counsel may argue that the Paccone-Cacho
the General Counsel cites Becton-Dickinson Company, incident was similar in tone and effect to the incident in Champagne Color
and, therefore, demonstrates that Respondent encouraged such conduct.
189 NLRB 787 (1971), wherein the Board concluded that However, there is nothing to indicate that any management officials ob-
an employer knowingly acquiesced in and condoned an- served the incident, that the incident concerned the Union, or that man-
tiunion harassment of union adherents by antiunion em- agement believed it related to any antiunion harassment of Cacho
ployees and held such to be violative of Sec. 8(a)(°) of * According to Krivan, he and Ohme, a relief waitress, had been
friendly prior to the election; however, on the morning of the election,
the Act. However, close analysis of that decision reveals Ohme became rather distraught over the holding of the voting and
that employees informed supervisors of the specific blamed the entire matter on Krivan.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union adherents and that he believed Krivan was respon- vens & Co., Inc., 243 NLRB 10 (1979); Computed Time
sible for the evidence upon which the Union's election Corporation, 228 NLRB 1243, 1250 (1977). Finally, as-
objections were based. Also, Pitter did not deny having suming arguendo that evidence existed of discrimination
commented to Krivan on August 29, "You are taking against Krivan in the assigning of work stations and of
this too far. You ought to see a doctor." Respondent's condonation of employee harassment of
While I believe that a prima facie showing of unlawful him, I still would find that Krivan's discharge was moti-
motivation may have been made, I also believe that Re- vated by his own insubordination on the night of Sep-
spondent effectively met its burden, demonstrating "that tember 1. Jupiter 8, Inc., 242 NLRB 1093 (1979); Marsh
the same action would have taken place even in the ab- Furniture Company, Inc., 230 NLRB 580 (1977).
sence of the protected conduct." At the outset, I have Counsel for the General Counsel makes two other ar-
credited the versions of what occurred at approximately guments against said findings. Initially, he asks why Re-
midnight, September 1, as testified to by Pitter and Chai- spondent did not seek to determine Krivan's reason for
kow. Analysis thereof convinces me, contrary to the refusing to work. Without regard to the relevancy of
contention of counsel for the General Counsel, that such an inquiry, I believe the conclusion is warranted
Krivan, rather than exhibiting "momentary indecision that both Chaikow and Pitter undoubtedly assumed that
about working" after the Paccone-Cacho incident, con- Cacho's leaving was the cause of Krivan's conduct. In
sciously determined to leave the restaurant and not work any event, the fact of his refusal rather than the reason
any longer that night, adhering to said decision even behind it is the important consideration. Next, it is
though unwaited-upon customers had been seated in his argued that Respondent imposed the "ultimate" penalty
section and despite repeated entreaties-and instruc- of termination rather than some lesser discipline and that
tions-from Chaikow, Pitter, and fellow waiters to such clearly reveals Respondent's true motivation-Kri-
remain at work and service the seated customers. That it van's union activities. However, it is gainsaid "while the
could hardly be said that Krivan was, in any way, inde- discipline may seem extreme, it does not follow that the
cisive about refusing to work is clear from his own ascribed reason for the discharge is pretextual." J. Ray
words-after telling Chaikow that he did not feel like McDermott & Co., Inc., 233 NLRB 946, 952 (1977).
staying and was thinking of leaving, Krivan told Pitter, Based upon the above, and the record as a whole, I do
"I'm not going to [wait on the customers]. I'm leaving. I've not believe that counsel for the General Counsel has es-
had it for tonight, I'm leaving." tablished by a preponderance of the evidence that Joseph
Having concluded that Krivan did, indeed, refuse to Krivan was terminated by Respondent either because of
work when ordered to do so, the question remains-was his union activities or because he participated in the in-
his presence necessary to Respondent's operations that vestigation of objections to the August 15 election and
night. The record is clear that, when Cacho abruptly de- shall, therefore, recommend that these allegations of the
parted slightly before midnight, the restaurant was ap- amended consolidated complaint be dismissed.
proximately half full (at least 17 tables) and that it would
be open for I more hour. Moreover, other than head- 2. Erich Frisch
waiter Chaikow, Respondent had scheduled four waiters
Counsel for the General Counsel argues that, havingto work until closing time-Krivan, Cacho, Dave Jack-
offered permanent employment and a raise to him, Re-
son, and Pow Purgsaphakorn. After Cacho left an spondent discharged Erich Frisch only when Pitter
Krivan was discharged, just two waiters remained to became aware of his picketing activities on September 2
cover the entire dining room until, at least, 1 a.m. Mini-
mizing the situation, counsel for the General Counsel as- arguing, counsel for the General Counsel also con-
serts the two newly seated parties in Krivan's section tends that Respondent spuriously asserted that it had no
tends that Respondent spuriously asserted that it had nowere not being given unsatisfactory service; however,
such is a too restrictiven focus. Rather, I believe that knowledge of Frisch's picketing and that Frisch was notsuch is a too restrictive focus. Rather, I believe that,
faced with the above-described situation for the remain- a permanent employee. On thher hand, Respondent
der of the dinner shift, Respondent justifiably could con- gues that It had no knowledge of Frisch's support for
ude-as it did-that it required Krivan to work the re- the Union or picketing activities,4 2 that, based upon hisclude--as it did--that it required Krivan to work the re- prior poor job performance, Frisch was hired-and con-mainder of his shift and that as an experienced waiter tinued to work-as a temporary replacement, and that hetinued to work--as a temporary replacement, and that heKrivan must also have realized the necessity of his pres- w
ence-whatever his state of mind at midnight. 4' Accord- as discharged at the conclusion of the summer vacation
ingly, I think that Respondent has established a valid,
persuasive economic justification for the discharge of At the outset, I have previously concluded that, for
Krivan whatever the latter's protected activities and that the most part, Erich Frisch seemed to be a highly credi-
he would have been terminated in any event. B. N ble witness, and as between Frisch and Respondent's wit-
Beard Company, 248 NLRB 198, fn. 5 (1980) J. P. Ste- nesses concerning the events of June through September
1979, with certain exceptions, I credit the testimony of
Frisch. His version of the events of that period must be
Notwithstanding that he may have been "upset" over the Paccone- Frisch. His version of the events of that period must be
Cacho incident, one should not over-dramatize what occurred. Thus, contrasted with aspects of Respondent's defense which
other than the obvious damage to his clothing, Cacho was not physically
injured, there was no shouting, no evidence that customers observed 12 There can be no doubt that Frisch engaged in protected concerted
what happened, or that the restaurant operations were, in any way, dis- activities when he picketed outside the restaurant after the conclusion of
rupted. Further, nothing whatsoever happened to Krivan, and Cacho his shift on September 2. Edir, Inc. d/b/a Wolfies, 159 NLRB 687, 694
himself called and implored Krivan to forget the incident. (1966).
GIOVANNI'S 249
seemed to be wholly illogical and hopelessly contrived. there had existed no problems with Frisch's prior job
Thus, head cook Byers' description of Frisch's "hazard- performance. Next, the timing of Pitter's July 10 offer is
ous" job performance was itself rather incredible, but important. Thus, I note that this conversation occurred a
when compared to the later, unwitting testimony of John scant 5 days after Frisch began working (hardly a suffi-
Schipani, it appeared to be utterly exaggerated-if not cient period during which properly to evaluate Frisch's
fabricated. Likewise, Pitter's denial of knowledge that job performance), just 3 days after Pitter interrogated
Frisch picketed outside the restaurant entrance on Sep- him as to his knowledge of the union campaign, and 1
tember 2 appears to be less than candid. Initially, I credit day after the filing of the election petition, and that Pit-
the latter's testimony4 3 that he did engage in picketing ter's offer was stated immediately after he asked Frisch
that night and that Howard Pitter peered outside and ob- also to work through Roy Chuck's vacation. It is highly
served his activities. Pitter admitted having observed the unlikely that any sort of offer of permanent employment
picketing and further admitted that the incident was an
"upsetting factor," that the picketing caused great con- c. ve en
cern among the employees, and that the restaurant had stances. 44 Rather, given Pitter's penchant for similar con-cern among the employees, and that the restaurant had
never previously been picketed. In these circumstances, I duct during this time period, the conclusion is warranted
believe that Pitter must have been aware that Frisch was and, indeed, inescapable that Pitter was attempting to
picketing that night-especially since Frisch was the dissuade a hopefully gullible individual from supporting
only employee-picket that night. the Unon. 5
Concerning the validity of Respondent's central de- Counsel for the General Counsel asserts that Pitter's
fense-that Frisch was simply terminated at the conclu- answer on Frisch's loan application document is proof to
sion of the summer vacation period as had been under- the contrary. However, Pitter's reply was simply the am-
stood when he was hired, counsel for the General Coun- biguous word "POSITIVE." Moreover, Pitter's explana-
sel points to my aforesaid conclusions and argues that tion, that he was trying to help Frisch obtain the loan, is
the "total weight" of the evidence, therefore, supports a not implausible and, indeed, a likely one. Also, I specifi-
finding that Frisch, in reality, was discharged because cally discredit Frisch's testimony regarding Pitter's offer
Respondent believed he had joined with Krivan and of a raise in late August. I do so, noting that no such
Cacho as a union adherent. However, in his post-hearing raise ever appeared in a paycheck to Frisch. Further,
brief, counsel for the General Counsel recognized the Frisch's discharge occurred exactly as originally sched-
underlying problem with his theory-that Frisch himself uled by Pitter during the July 10 conversation, coincid-
admitted that he had been hired by Respondent on a ing precisely with the return of Roy Chuck from vaca-
temporary summer relief basis. The core issue, then, is tion. Finally, there exists no record evidence that any re-
whether Frisch's status was ever converted to that of a placement for Frisch was hired subsequent to his dis-
permanent employee. Put another way, was he ever charge and no record evidence, other than the timing, of
genuinely offered permanent employment by Respond- any unlawful animus toward Frisch.
ent? Initially, I credit the testimony of Frisch that he was In short, the above-stated factors, and the record as a
called into the restaurant office by Pitter on July 10 and whole, convince me that Frisch was discharged in the
that the latter uttered the words: "And he asked me if I
wanted to stay on permanently, and he said he thought while Pitter's July 0 offer of permanent employment
he could work a raise for me, get a raise to $6.50 or and a raise to Frisch may have constituted an unlawful
$7.00 or $7.50 an hour." The inquiry, however, does not
end here. Rather, Pitter's intent in uttering these words is inducement to forgo supporting the Union, such was not
the determining factor-was he stating a genuine offer of intended as a genuine offer. Accordingly, notwithstand-
employment, or was Pitter cleverly offering an induce- ing the obviously overly zealous and, in part, fabricated
ment to a newly hired employee to forgo any support for nature of Respondent's defense and despite the timing of
the nascent union movement? If the latter is true, then it the discharge and Pitter's knowledge of Frisch's activi-
cannot be conclusively established that Frisch was a per- ties on September 2, I do not believe that the General
manent employee, and his discharge on September 5 Counsel has met its burden of proof to establish that
would have occurred in the ordinary course of events. Erich Frisch was terminated by Respondent because of
Analysis of the record as a whole convinces me that at his union activities and I shall, therefore, recommend
no time did Pitter intend to offer to Frisch permanent that this allegation of the amended consolidated com-
employment. plaint be dismissed.
Initially, Frisch himself testified that he was hired on a
summer vacation relief basis and that Pitter warned him
to watch his step. I think that the inference is warranted " In particular, why would Pitter offer permanent employment imme-
that Pitter would never have made the latter statement if diately after asking Frisch to work through Roy Chuck's vacation?
Would he not, if a genuine offer was intended, have just offered perma-
nent employment and not mentioned Chuck. I think the answer is obvi-
" While crediting Frisch that Pitter looked outside and saw him pick- ous and believe Pitter was not serious. It is most unfortunate that Frisch
eting, I specifically do not credit his testimony that Pitter also shook his believed Pitter and, accordingly, rejected other job offers
head from side to side in a negative manner. Thus, I note that in his pre- 4" Counsel for the General Counsel points to Pitter's comment, regard-
trial affidavit, given 4 days after the incident, Frisch did not mention the ing Frisch's job performance during the summer, that he was "doing
foregoing. It is gainsaid that one's memory is fresher immediately after an fine" and asserts that such accurately portrays the latter's work. I view
event than 8 months later. Flatiron Paving Company d/b/a Flatiron Mate- the statement in a different light, believing Pitter was attempting merely
rials Company, 250 NLRB 554 (1980). to satisfy Frisch while evading any specific response
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The alleged 8(a)(1) conduct support for the Union. I have credited Cacho as to this
conversation. He testified that, after disparaging theThe amended consolidated complaint alleges several
independent violations of Section 8(a)(1) of the Act. Union, Schipani raised the subject of an in-house union
Considering the incidents in chronological order, it is and offered to pay for the services of an outside arbitra-
first alleged that, during his July 7 conversation with tor, who would settle the differences between Respond-
Frisch, Pitter interrogated him regarding the union activ- ent and its employees. I find that such a promise of bene-
ities at the restaurant and threatened reprisals against the fits is violative of Section 8(a)(1) of the Act. Chester
"Mexicans" because of their support for the Union. I Valley, Inc., supra.
have previously credited Frisch on this conversation and, The next two allegations of the amended consolidated
other than a denial, Pitter offered no explanation for his complaint concern Pitter's conduct the day after Cacho
conduct. I, therefore, find that Pitter violated Section interrupted and allegedly interfered with the meeting be-
8(a)(1) of the Act by the aforementioned conduct. Big tween Pitter and the Spanish-speaking employees in the
Three Industries, 252 NLRB 963 (1980); B. E. & K., Inc., boathouse. It is uncontroverted that, while Pitter first
252 NLRB 256 (1980); Ben Franklin Division of City issued warning letters to Krivan and Cacho regarding
Products Corporation, 251 NLRB 1512 (1980). Further, it the previous night, he later rescinded the warnings and,
is alleged that, during his July 10 conversation with attempting to ameliorate relations with Krivan, placed a
Frisch, Pitter offered the former a raise and permanent note in the latter's personnel file, specifying the absence
employment in order to induce him not to support the of disciplinary material therein. In fact, the record estab-
Union. As previously stated, I credit Frisch as to this lishes that Krivan himself persisted in arguing about the
conversation. Further, while I do not believe that Pitter warning even while Pitter insisted that he would forget
was transmitting a genuine offer of permanent employ- the entire incident.
ment, I do believe that his intent was to attempt to dis- As to the warnings themselves, I do not believe the
suade Frisch from supporting the Union. Accordingly, I record supports a conclusion that these were related to
believe Pitter's conduct was blatantly violative of Sec- the union activities of Krivan and Cacho. Initially, while
tion 8(a)(1) of the Act. Wm. Chalson & Co., Inc., 252 the warnings may not have been well thought out or
NLRB 25 (1980); Chester Valley, Inc., 251 NLRB 1435 perhaps were an overreaction to the conduct of the two
(1980). union adherents, such does not make them violative of
It is next alleged that during her July 10 conversation Section 8(a)(1). Further, the simple fact is that neither
with employee Carlos, Anna Schipani interrogated him Krivan nor Cacho had any legitimate business interject-
about the Union and threatened action by the Immigra- ing themselves into Pitter's meeting with the Spanish-
tion and Naturalization Service against employees be- speaking employees. Neither was init to attend or had
cause of their union activities. I have credited Bernard speaking employees. Neither was nMted to attend or hadany Section 7 right to be present. Moreover, if Pitter in-
Cacho as to this incident over the version of Schipani. tended to e employees with further Immigra-
Accordingly, I find that Anna Schipani's statements were
violative of Section 8(a)(1) of the Act. Big Three Indus- l ated about by counsel for the General Counsel-as specu-lated about by counsel for the General Counsel-or if
tries, supra; B. E. & K., Inc., supra.tries, supra; B. E & K, Inc., supra. either union supporter objected to what Pitter said,
Next, the record establishes that during a July Il con- Cacho and Krivan possessed ample opportunity to com-
versation with employee Jose Cruz, Pitter interrogated municate with the employees at a later time. Accord-
him about the Union and solicited any "gripes or com- ins
plaints" which the employee had. Likewise, the record ngly, I do not believe that the rescinded warnings were
further establishes that on the same day, or the next day, based upon union considerations and shall recommend
Pitter had a similar conversation with waiter Pow Purg that paragraph 6(k) of the amended consolidated com-
saphakorn during which Pitter asked the employee if he plaint be dismissed. Finally, inasmuch as I have credited
signed an authorization card and requested that Purgsa- Krivan's version of the nighttime conversation with
phakorn advise him of any complaints or problems Pitter and as the former failed to mention anything re-
which the employee might have. While denied by Pitter, garding the solicitation of grievances by Pitter, I shall
I have credited the testimony of Joseph Krivan as to also recommend the dismissal of paragraph 6(1).
these incidents. Such conduct is, of course, violative of It is next alleged that, during her conversation with
Section 8(a)(1) of the Act. Ben Franklin Division of City Cacho on the night before the election, Anna Schipani
Products Corporation, supra.46 interrogated Cacho as to his union activities and threat-
It is next alleged that, during his conversation with ened him with unspecified harm if the Union was victori-
employees Krivan and Cacho in the last week of July, ous in the election. I have previously credited Cacho's
John Schipani told them that he would pay for an arbi- version of this incident but also note that Schipani's own
trator if the employees agreed to the establishment of an version of the conversation closely corroborates Cacho.
in-house union-in order to induce them to forgo their Further, while, given their nature, Cacho may have
taken her remarks in jest, I do think that Anna Schipani
s Regarding the solicitation of grievances, it is gainsaid that the es-
sence of the violation is not the solicitation itself, but rather the inference " Arguing that Pitter intended once again to threaten the Spanish-
that the employer will correct the problems. This promise is implicit in speaking employees with deportation or other action, counsel for the
the solicitation and need not be expressly stated. Ben Franklin Division of General Counsel asks why else would Pitter preface his remarks by stat-
City Products Corporation, supra; Madison Plant Mechanical Drives Divi- ing that the meeting had nothing to do with the Union? The answer, of
sion, Reliance Electric Company. Madison Plant Mechanical Drives Division, course, is obvious-to assure the assembled employees that the meeting,
191 NLRB 44 (1971). indeed, did not concern the Union.
GIOVANNI'S 251
was quite sincere, meant what she said, and understood ORDER 4 s
the seriousness of her comments. Therefore, I find that The Respondent, Caffe Giovanni, Inc. d/b/a Giovan-
Schipani's conduct interfered with, coerced, and re- ni's, Berkeley, California, its officers, agents, successors,
strained Cacho in the exercise of his Section 7 rights and, and assigns, shall:
thus, was violative of Section 8(a)(l) of the Act. Big 1. Cease and desist from:
Three Industries. supra; B. E. & K., Inc., supra,' Ben (a) Interrogating its employees concerning their union
Franklin Division of City Products Corporation, supra. membership, activities, and desires and the union mem-
bership, activities, and desires of their fellow employees.
THE REMEDY (b) Promising its employees economic and other bene-
It having been found that Respondent has engaged in fits in order to dissuade them from joining or assisting
unfair labor practices in violation of Section 8(a)(1) of the Union.
the Act, it will be recommended that Respondent cease (c) Threatening retaliation, deportation, or other, un-
and desist therefrom and take certain affirmative action specified reprisals against employees to dissuade them
designed to effectuate the policies of the Act. from joining or asrietvanges from employees and promis-(d) Soliciting grievances from employees and promis-
ing possible favorable resolution thereof in order to
induce them to refrain from joining or assisting the
I. Respondent is an employer engaged in commerce Union.
within the meaning of Section 2(6) and (7) of the Act. (e) In any like or related manner interfering with, re-
2. The Union is a labor organization within the mean- straining, or coercing employees in the exercise of the
ing of Section 2(5) of the Act. rights guaranteed under Section 7 of the Act.
3. By interrogating its employees concerning their 2. Take the following affirmative action designed to ef-
union membership, activities, and desires and the union fectuate the policies of the Act:
membership, activities, and desires of their fellow em- (a) Post at its Berkeley, California, restaurant copies of
the attached notice marked "Appendix."4'9 Copies of said
ployees; by promising its employees economic and other
benefits in order to dissuade them from joining or assist- Region 32, after beg duly edRegonal Drector forRegion 32, after being duly signed by Respondent's au-
ing the Union; by threatening retaliation, deportation, or thorized representative, shall be posted by it immediately
other unspecified reprisals against employees to dissuade upon receipt thereof, and be maintained by it for 60 con-
them from joining or assisting the Union; and by solicit- secutive days thereafter, in conspicuous places, including
ing grievances from employees and promising possible all places where notices to employees are customarily
favorable resolution of them in order to induce them to posted. Reasonable steps shall be taken by Respondent to
refrain from joining or assisting the Union, Respondent insure that said notices are not altered, defaced, or cov-
has interfered with, restrained, and coerced its employees ered by any other material.
in the exercise of rights guaranteed them under Section 7 (b) Notify the Regional Director for Region 32, in
of the Act, thereby violating Section 8(a)(1) of the Act. writing, within 20 days from the date of this Order, what
4. The unfair labor practices enumerated above are steps Respondent has taken to comply herewith.
unfair labor practices affecting commerce within the IT IS FURTHER RECOMMENDED that the complaint be
meaning of Section 2(6) and (7) of the Act. dismissed in all other respects.
5. Respondent has not engaged in any unfair labor '" In the event no exceptions are filed as provided by Sec. 102.46 of
practices not specifically found herein. the Rules and Regulations of the National Labor Relations Board, the
Upon the foregoing findings of fact, conclusions of findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
law, and the entire record, and pursuant to Section 10(c) become its findings, conclusions, and Order, and all objections thereto
of the Act, I hereby make the following recommended: shall be deemed waived for all purposes.
'9 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 Labor Relations Board."