Hs Lordships

National Labor Relations Board - Board Decisions

Mar 28, 1985

274 N.L.R.B. 1167 (N.L.R.B. 1985)

HS LORDSHIPS
Berkeley Marina Restaurant Corporation d/b/a HS
Lordships , a subsidiary of Specialty Restaurant
Corporation and Davood Asgari . Case 32-CA-
5969
28 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 8 November 1984 Administrative Law Judge
Burton Litvack issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief,
limited cross-exceptions, and a supporting brief.
The National Labor Relations Board has consid-
ered the decision and the record in light of the ex-
ceptions and briefs and has decided to affirm the
judge's rulings, findings,' and conclusions and to
adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' The General Counsel and the Respondent have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
In adopting the judge's finding that Asgari is a statutory supervisor, we
do not rely on his statement in sec iII,B, par 12, that scheduling bar
personnel for the Respondent's restaurant is immaterial See Denny's Res-
taurant #3, 177 NLRB 702, 703 (1969) Under the circumstances of this
case, however, the judge properly did not rely on Asgari's scheduling bar
personnel as indicating supervisory status Company policy required that
employees be scheduled according to seniority, and Asgari's schedules
were subject to the approval of the restaurant's general manager Thus,
Asgari did not exercise independent judgment in scheduling such as to
constitute evidence of supervisory status Valley Mart Supermarkets, 264
NLRB 156, 161 (1983)
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. This
matter was heard by me on May 29-31, and June 1, 12,
and 14, 1984, in Oakland, California On December 29,
1983, the Regional Director for Region 32 of the Nation-
al Labor Relations Board (the Board) issued a com-
plaint,' based on an original and first amended unfair
labor practice charge filed on October 18 and November
4, 1983, respectively, by Davood Asgari, an individual,
alleging that Berkeley Marina Restaurant Corporation
' At the hearing, the General Counsel moved to sever from the instant
proceeding and withdraw the charge in Case 32-CA-6035 There was no
objection, and the motion was granted
1167
d/b/a HS Lordships, a subsidiary of Specialty Restau-
rant Corporation (Respondent) had engaged in acts and
conduct violative of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act).2 Respondent filed
an answer, denying the commission of any unfair labor
practices During the course of the aforesaid hearing, all
parties were afforded the opportunity to present all rele-
vant evidence, to examine and cross-examine witnesses,
to argue their positions orally, and to file posthearing
briefs. The latter were filed by all parties and have been
carefully considered Accordingly, based on the entire
record herein, including the posthearing briefs, and on
my observation of the demeanor of the several witnesses,
I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent admits that at all times material herein it
had been a California corporation with an office and
place of business in Berkeley , California , at which loca-
tion it has been engaged in the operation of a restaurant
and bar facility , and that, during the 12-month period im-
mediately preceding the issuance of the complaint, which
period is representative, in connection with the business
operations , it derived gross revenues in excess of
$500,000 and purchased and received goods and materi-
als valued in excess of $5000, and which originated out-
side the State of California Respondent further admits
that it is now and has been at all times material herein an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act
II. LABOR ORGANIZATION
Respondent admits that Hotel Employees & Restau-
rant Employees Union, Local 28, Hotel Employees and
Restaurant Employees International Union , AFL-CIO
(the Union), is now and has been at all times material
herein a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The record establishes that Specialty Restaurant Cor-
poration (Specialty), which has its headquarters in Long
Beach, California, owns and operates restaurants
throughout the United States; that 23 of these restaurants
are located in what it terms its western region, and that 6
of these restaurants, including Respondent, are located to
the San Francisco Bay Area. Responsible for the profit
and loss and overall operations of these six facilities is a
northern California division manager whose office is lo-
cated in Oakland.3 The record further establishes that
2 At the hearing, the General Counsel was permitted to amend the
complaint to allege an additional violation of Sec 8(a)(1) of the Act
3 At all times material herein, from June 1980 until December 1983,
Sion Vojdani was Specialty's division manager, in charge of its northern
California restaurants Prior to that, from January 1978 until June 1980,
Vojdani was the general manager of Respondent According to Vojdani,
Continued
274 NLRB No. 178
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's facility is a two-story building, that the
lower floor is composed of the main dining room, the
bar and cocktail lounge, two banquet rooms, the kitchen,
and the accounting office, and that upstairs are located a
ballroom and another banquet room In operational
terms, the restaurant is divided into several departments
the dining room, the bar (including the cocktail lounge),
the kitchen, accounting, catering , and banquets Respon-
sible for overseeing the operations of the restaurant and
for its financial condition is Respondent's general manag-
er 4 Beneath him in the managerial hierarchy are the as-
sistant managers and the managers of the various depart-
ments, including the chef who is in charge of the kitchen
and the auditor who is responsible for bookkeeping Fi-
nally, Respondent and the Union have had a longstand-
ing collective-bargaining relationship with the Union rep-
resenting all employees including the bartenders.
Respondent employs between 85 and 100 persons; nor-
mally working in the bar and cocktail lounge are six or
seven bartenders, one or two barbacks (helpers), and six
cocktail waitresses Davood Asgari was hired by Re-
spondent in 1977 as a bartender. In September or Octo-
ber 1980, Respondent's bar manager left the restaurant's
employ and Asgari was offered the position Although
who offered Asgari the position and whether or not he
accepted are in dispute, it is not in dispute that thereafter
he assumed additional duties than merely tending bar. On
October 25, 1983, Asgari was terminated by Respondent
ostensibly because he refused to stop tending bar and
manage the bar and cocktail lounge on a full-time basis.
The record discloses that Asgari had been a member of
the Union prior to being hired by Respondent, that he
remained a member until his termination, and that he ad-
vised other employees who had union-related pioblems
The General Counsel alleges that Asgari was terminated
by Respondent in violation of Section 8(a)(1) and (3) of
for the approximate 6-month period after June 1980, he acted as both the
northern California division manager and as the acting general manager
of Respondent He testified that in this dual capacity 90 percent of his
workday , or approximately 8 to 10 hours , was spent at the restaurant-"I
worked 14 to 16 hours a day I went to other restaurants in the night
times " Vcjdam dented that Said Bazarganr , an assistant manager in 1980,
was, in fact, the acting general manager after June Tho Luu, the north-
ern California division auditor at that time , corroborated the testimony of
Vcjdam as to the latter 's continued managerial status at Respondent's fa-
cility after June 1980 and, as to Vojdant 's time spent at the restaurant,
stated that "He was in and out" and that he was there on a "daily" basis
for as long as "half a day " Contradicting these witnesses , Davood Asgarr
testified that after VoJdant was promoted to division manager , Bazargant
became the acting general manager and that the former would "stop by"
the restaurant "oh, once or twice a week for short periods of time,
maybe one hour , two hours , at the most " Alex Azarpay, who is current-
ly employed by Respondent as a bartender but was an assistant manager
in June 1980 and who is a friend of Asgari, corroborated the latter in
these regards Finally, Respondent's payroll records for the latter half of
1980 establish that, although paid from Specialty 's Long Beach headquar-
ters , Vojdani 's name continued to appear on Respondent 's payroll
records Luu explained that such "means he still was in charge with H's
Lordships' [sic] until his successor was fully in that capacity " I believe
the truth lies somewhere in between-that VoJdant was , indeed, the
acting general manager after June 1980 but was in the restaurant for only
short periods each day In this regard, I fully credit the testimony of Tho
Luu
4 Ben Thompson became the general manager on February 18, 1982,
and remained in that capacity until his termination about July 18, 1983
He was replaced by Ali Monsefan , who was the general manager at the
time of the hearing
the Act because he was perceived by Respondent as
being an ardent supporter of the Union and as part of a
plan to eventually cause the Union to be decertified 5
While denying that its discharge of Asgari was unlawful-
ly motivated, Respondent also contends that, in any
event, he was either a supervisor within the meaning of
Section 2(11) of the Act or a managerial employee and,
therefore, not entitled to the protection of Section 8(a)(1)
and (3) of the Act.
B Was Asgari a Supervisor Within the Meaning of
Section 2(11) of the Act?
As defined by Section 2(11) of the Act, a supervisor is
"any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action."
As long stated by the Board, it is not necessary that the
individual possess all of these powers Rather, the indicia
of supervisory status are to be taken disjunctively, and
"it is the possession of even one of [them] which is the
governing factor." Purolator Products, 270 NLRB 694
(1984); Olympia Plastics Corp., 266 NLRB 519, 530
(1983) This is so "regardless of the frequency of its use "
Big Rivers Electric Corp., 266 NLRB 380, 382 (1983)
Further, supervisory status exists only if the power is ex-
ercised with independent judgment, on behalf of manage-
ment, and not in a routine or clerical manner Valley
Mart Supermarkets, 264 NLRB 156, 158 (1983); Hydro
Conduit Corp., 254 NLRB 433, 437 (1981). Where the
possession of any one of the aforementioned powers is
not conclusively established or is nonexistent, the Board
looks to well-established secondary indicia, including the
individual's job title or designation as a supervisor, at-
tendance at supervisorial meetings, job responsibility, au-
thority to grant time off, and whether the individual pos-
sesses a status separate and apart from that of rank-and-
file employees. Monarch Federal Savings & Loan, 237
NLRB 844, 845 (1978); Flexi-Van Corp., 228 NLRB 956
(1977). As to the burden of proof in establishing supervi-
sory status, the burden rests on the party asserting that
individuals are supervisors to prove that it, in fact, exists.
Soil Engineering Co, (1979) 269 NLRB 55 (1984), Com-
mercial Movers, 240 NLRB 288, 290 (1979). Finally, in
making determinations regarding such status, "the Board
has a duty to employees to be alert not to construe su-
pervisory status too broadly because the employee who
is [so deemed ] is denied employee rights which the Act
is intended to protect." Westinghouse Electric Corp v.
NLRB, 424 F 2d 1151, 1158 (7th Cir. 1970), cert. denied
400 U.S. 831 (1970).
Initially, crucial to an understanding of this case, and
vividly demonstrating its complexity, is a determination
of precisely what Davood Asgari's job title was at the
time of his discharge. In this regard, Asgari, former Gen-
eral Manager Ben Thompson, and former Assistant Man-
s The complaint also alleges that Respondent violated Sec 8(a)(1) of
the Act by interrogating employees regarding their union activities and
by disparaging the Union to employees
HS LORDSHIPS 1169
ager Rachmat Hardjadinapa (commonly referred to as
"Bouw"), the latter two called as witnesses by the Gen-
eral Counsel, termed the Charging Party the "head bar-
tender," a title denoting the senior bartender and an indi-
vidual whom management could "count on . . . to
help", while former District Manager Vojdani and
present General Manager Monsefan, both of whom were
called as witnesses on behalf of Respondent, testified that
Asgari was the "bar manager," a managerial position B
At the outset, while the fact of the offer to Asgari of the
bar manager position in September 1980 is not in dispute,
who made said offer and Asgari's acceptance or rejection
of it are the subjects of contradictory testimony. Accord-
ing to the Charging Party, Said Bazargani, who asserted-
ly was the acting general manager at the time, "asked me
. . . if I help him" by becoming the bar manager He
added that he would give Asgari a management applica-
tion, which the latter was required to complete in order
to receive such a promotion. Asgari replied that he was
not sure that he would take the position but agreed to fill
out the application He did so, however, the next day, he
told Bazargani he did not want the job 7 Asgari contin-
ued, "Then he asked me if I help him at least doing
liquor order. I said fine . . I will help you out " Asgari
admitted that immediately thereafter his pay increased,
but he attributes this not to any raise8 but rather to the
fact he began working 6 days a week and between 50
and 65 hours a week 9 Contradicting Asgari, Vojdani
testified that he spoke to the former and offered him the
bar manager position which was vacant at the time, Sep-
tember 1980 They discussed the salary and the job, "and
he said he's going to think about it " According to Voj-
dani, he offered Asgari a salary of approximately $1550
per month "to make sure he makes more than the regular
bartenders." Vojdani testified that he described the job
6 Regarding the credibility of these witnesses, I was not overly im-
pressed with the testimonial demeanor of any of them More specifically,
I believe that Thompson and Vojdani fabricated portions, if not all, of
their respective testimony Having been discharged by Respondent and
filed NLRII charges which were subsequently withdrawn, Thompson ap-
peared to be a biased witness and was caught in several inconsistencies
Vojdani likewise was contradicted by documentary evidence, most vivid-
ly in the matter of Asgari's supposed discipline of employees during the
summer of 1983 Asgari impressed me as either one of the most naive
witnesses I have ever encountered or one calculatedly embellishing what
he desired me to find as the facts herein The record as a whole suggests
the latter to be the case, and I so find Monsefan and Bouw both ap-
peared to me as attempting to buttress their respective side's ultimate po-
sition with regard to the supervisory status of Asgari, and I place little
reliance on the testimony of either in this regard Finally, where these
witnesses directly contradict each other, I credit that witness whose testi-
mony more closely comports with the record as a whole
r Asgari asserted that Baiaigani represented that he would throw
away the application Evidently, such was not done, and the document is
a part of the record as R Exh 1
8 Asgari testified that the amount of each paycheck became larger but
that his wage rate remained the same
9 As to whether he was paid an overtime rate after 40 hours, Asgan
said. "I was supposed to, they never paid me" While he apparently did
periodically complain to either the general manager or the auditor about
this situation, he never pursued the perceived problem with the Union or
any state or Federal agencies As to the increased weekly hours worked
by Asgan after assuming his extra duties, the record reveals that manage-
ment personnel were required to work at least 60 hours per week, that no
regular employees worked nearly that number of hours, and that for the
approximately 3-month period before Asgari's pay increased, he never
worked more than 36 hours in a given week
duties to Asgari-"that he's going to be scheduling, he's
going to be ordering, he's going to be training employ-
ees, and basically, I described his authorities in the res-
taurant. I described he would be in charge of the
bar . . the cocktail waitresses . the bartenders, he
would be doing the scheduling for them, hiring the cock-
tail waitresses and bartenders, he would be in charge of
all the Company procedures to be followed in the .
bar area " Vojdani testified further that, 2 days later, he
asked Asgari if the latter had contemplated taking the
job "He said yes, he did, and he said he had accepted
the job." Thereafter, according to Vojdani, Asgari began
working longer hours and was given an immediate wage
increase' ° which resulted in him receiving $361 80 per
week or a salary of $1560 per month " As between Voj-
dani and Asgari, based on the record as a whole, I rely
on the testimony of the former, believing that Vojdani-
and not Bazargani-offered the bar manager position to
Asgari in 1980 and that, most importantly, he accepted
it. This conclusion is based primarily on the facts that
Asgari's hours dramatically increased at that time to
managerial level, and that he began being compensated
on, what I believe was, a salaried basis. It just utterly
defies credulity that merely, as asserted by Asgari, help-
ing Bazargani with the ordering of liquor, a task which
admittedly consumed but a few hours of Asgari's time
each week, would have resulted in the above changes in
his working conditions Further, the record is replete
with numerous examples of official Specialty documents
bearing Asgari's signature along with a title designa-
tion-bar manager. I found utterly incredible the testi-
mony of the Charging Party in this regard-that he
1s R Exh 51 is a payroll rate change form, dated October 2, 1980, and
signed by Vojdani, for the bookkeeper, showing that Asgari was to be
bar manager, with his pay changed from the union contractual scale to
$1560 per month The General Counsel asserts that the document should
not be given any weight because "a different color ink was used to write
a new amount over the old one " I find nothing incredible as to Vojdani's
explanation for what happened and find the document supports his testi-
mony The parties stipulated that Asgan received various amounts each
week prior to October 1980, and there is no evidence that he ever re-
ceived as much as he did receive commencing that month
Whether such, in fact, represented an increase is disputed by the Gen-
eral Counsel and, indeed, Tho Luu candidly agreed that if Asgari worked
60 hours per week under the union contractual scale, he could have
earned more than what Respondent paid him after October However,
the fact is that he never previously worked 60 hours a week and, as Luu
pointed out, "never before did he receive the dollars amount like he re-
ceived when he became a bar manager It is a raise " I agree
Contrary to the arguments of the General Counsel, there just is no
logical basis in the record for finding that Davood Asgari was anything
but a salaried employee after October 1980 Thus, R Exh 62, a compila-
tion of Asgari's payroll schedule from October 9, 1980, until his termina-
tion taken from Respondent's payroll records, establishes that for the re-
mainder of 1980, Asgan received the same amount of pay each week-
$361 80 and that commencing January 1, 1981, Asgari's pay was broken
down into 40 regular hours and 20 overtime hours each week but that
the gross remained $361 80 per week Luu explained, without contradic-
tion and corroborating Vojdani, that such was based on two factors-that
Asgari chose to continue receiving the contractual health plan coverage
and that Asgari continued to spend most of his time working behind the
bar in any event, the overtime hours never varied from 20 per week de-
spite Asgari's testimony that his hours varied from 60 to 65 a week Fur-
ther, he received the 20 hours overtime pay whether he worked or not,
for during vacation periods, Asgari received the same amount per week
as he did when working I find that Asgari was, in fact, a salaried em-
ployee after October 2, 1980
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely went along with the dictates of Ben Thompson
and identified himself in that manner, without any con-
ception of the consequences. Based on the foregoing, I
credit the respective testimony of Monsefan and Vojdani
that Asgari held the position and title of bar manager at
the time of his termination In this regard, not only do I
note the aforementioned documents bearing Asgari's sig-
nature and title, 12 but also the credible testimony of
Amy Silberlicht, presently employed by Respondent as a
hostess but hired as a cocktail waitress, that Asgari was
introduced to her as the bar manager and was commonly
referred to by other employees as being in that position
and the restaurant "status report" for December 1982,
initiated by Ben Thompson, in which he refers to "Mr.
Davood, our Bar Manager," thereby contradicting his
specific denials that he ever referred to Asgari as such
Concluding that Davood Asgari was Respondent's bar
manager at the time of his termination is relevant, but
certainly not conclusive, to the resolution of the matter
of his status as a statutory supervisor, for the Board has
never considered titles alone determinative of superviso-
ry status. The proper consideration is whether the func-
tions, duties, and authority of an individual, regardless of
title, meet any of the criteria for supervisory status de-
fined in Section 2(11) of the Act Marukyo USA., Inc.,
268 NLRB 1102 (1984) Putting aside the question of his
authority,13 there is little dispute over what Asgari did
as Respondent's bar manager. Initially, the record estab-
lishes that Asgari spent at least 90 percent of his working
time performing the functions of any ordinary bartender
and that he wore the standard bartender uniform while
working In this regard, his job duties included setting up
the main bar, pouring drinks for customers, and stocking
the bar. Next, Asgari was responsible for ordering the
liquor for the bar Such work took "a couple of hours"
and consisted of going to the liquor room, looking over
the shelves, determining "what are we short, what we
need for that week . writing down the information,
12 Documents bearing Asgan 's title of bar manager include new hire
slips, which are attached to employment applications and signify to the
accounting department that an indvidual has been hired and employee
separation reports, which are filed whenever an individual leaves Re-
spondent's employ Documents Asgari signed in the space for "supervi-
sor" include new hire slips, payroll rate change forms, payroll adjustment
forms , vacation pay requests, and other , similar documents Frances Rus-
sell, Respondent's current auditor, credibly testified that only a manager
could sign any of these documents and that while she was never instruct-
ed that Asgari could or could not execute such documents, no employee
actions which he approved were ever rejected
Thompson admitted that he "may have" permitted Asgan to call him-
self bar manager for purposes of "paperwork," such as the new hire slips,
"because we had to have the title to send down to the central office on
hire slips " While denying knowledge that documents, such as the
hire slips, required a manager's signature in order to be acted upon,
Thompson admitted that Asgan could not sign as "head bartender," for
"it had to have a management official to sign it " I believe that
Thompson was being rather disingenuous in the above comments and
that he, as general manager, would never have permitted an unauthorized
person to sign official company documents, thereby misleading Specialty
officials
11 Thompson and Vojdani agreed on the normal authority of a bar
manager According to the former, one in that position "is someone in
authority, such as an assistant manager and would be capable of hiring,
firing, and reprimands " Vo,ldani agreed that the bar manager hires, fires,
schedules work, orders liquor, and makes sure "all the procedures of
company policy is being followed at the bar "
and ordering the merchandise " While there is no evi-
dence that his discretion as to the quantities to be or-
dered was, in any way, limited, the brands themselves
were specified by Specialty. Also, Asgari was responsible
for drafting the weekly work schedules for the bartend-
ers and the cocktail waitresses According to Asgari, he
would spend 2 or 3 hours a week preparing the schedule
using as a basis the seniority of the employees. After
such was prepared, it had to be initialed by the general
manager, who could and did make changes.14 With
regard to the importance of this job function, the record
is clear that Asgari was responsible for labor costs in the
bar and cocktail lounge and that the scheduling of work
hours was the primary method of controlling said costs.
Thus, Ben Thompson admitted ordering Asgari from
time to time to examine labor costs "a little closer" and
informing him of problems in that area, for as he was
doing the scheduling, he "needed to know that our labor
cost was at a point that the corporation didn't want."
With knowledge of how much Specialty desired to have
labor costs reduced, according to Thompson, Asgari, in
his discretion, "would cut 1 hour here and 1 hour there
So normally he would just reduce the number of hours
worked by employees." Asked if he reviewed Asgari's
efforts to reduce labor costs, Thompson said "I would
just approve it . . . . As long as our labor costs were in
line and that would be indicated by sales." Besides order-
ing liquor and scheduling hours, there is also no dispute
that Asgari was responsible, along with the auditor, for
conducting audits of the liquor room in order to deter-
mine the exact quantities of liquor on hand and con-
sumed Next, Asgari was responsible for scheduling the
bartenders for banquets In this regard, based on the
number of people expected to attend, he would deter-
mine the number of bartenders needed. At such func-
tions, Asgari would spend his time tending a bar Finally,
Thompson admitted that besides labor costs, Asgari was
responsible for controlling-and reducing-beverage
costs at the bar 15 In this regard, in several so-called
status reports to Specialty, Thompson effusively praised
Asgari as doing "an excellent job in cost controls " Ac-
cording to Thompson, Asgari kept control over such
costs by such tactics as "making sure that everybody was
measuring the drinks that were poured . . . and just ob-
serving good practice in bartending." Thompson also
said that while maintaining tight controls, Asgari could
14 Both Asgari and Thompson testified that the former did not start
scheduling bar personnel until Thompson became bar manager Vojdani
testified that, while acting general manager, he "sometimes" reviewed
schedules, prepared by Asgari, "dust to make sure that he has enough
people on the schedule to cover certain shifts " Such, of course, would
have been impossible if Asgari was not yet scheduling, and I credit
Asgari and Thompson in this regard
In any event, Thompson agreed with Vojdani that he had to approve
any schedule prepared by Asgari but did not elaborate Monsefan cor-
roborated that he examined Asgari's schedules "to make sure that the de-
partment had the proper staffing and cover all the shifts in the restaurant
for that particular day if there was any problem I noticed, then I
would mention it to Davood, that he should maybe put more people
or should have less people on that day " Monsefan averred, however,
that, in so informing Asgari, he was not concerned with specific individ-
uals-such was up to Asgan
15 The costs are calculated by measuring the cost of the liquor sold
against revenues
HS LORDSHIPS
issue instructions to the other bartenders "if he observed
them free pouring and there were two of them working,
I would expect him to do that for me "
Turning now to the extent of authority possessed-and
exercised-by Asgari over other employees, both Voj-
dani and Monsefan testified that , as bar manager, the
Charging Party was authorized to hire bartenders, bar-
backs, and cocktail waitresses While all witnesses testi-
fied that bar managers traditionally had such authority, I
credit Asgari and Thompson that the former was not au-
thorized to hire employees . In this regard , I note that
neither Vojdani nor Monsefan cited one individual who
clearly was hired by Asgari in the 4 years he was the bar
manager. If he held this position-and I believe he did-
and was authorized to hire, it is truly incredible, given
the high turnover among the cocktail waitresses,' 6 that
Respondent cannot point to one actually hired by
Asgari. Rather , to establish that he did, in fact , hire em-
ployees, Respondent points to the numerous new-hire
slips which were executed by Asgari. He readily admit-
ted performing such paperwork ; however, such is a long
way from proving that he was actually making the deci-
sion to hire the named individuals . In this regard,
Thompson and Asgari credibly testified that the deci-
sions to hire the individuals for whom Asgari filled out
the new-hire slips were not made by Asgari, and such
was uncontroverted. However, the foregoing is not to
say that Asgari did not play any role in the hiring proc-
ess at Respondent 's facility In fact , I believe his role in
such was a rather significant one Thus, while Asgari
specifically denied ever making recommendations regard-
ing the hiring of bar personnel , Thompson admitted that
he would solicit Asgari's opinion on prospective bartend-
ers as "that would be the natural thing to do" and that
he "sometimes" would not even bother to interview the
applicant himself if Asgari reported and opined that he
would be a bad employee More specifically, when asked
if he ever hired someone Asgari recommended against
hiring, Thompson testified , "if he recommended not
hiring somebody , I don 't recall hiring he recommended
against . I don ' t believe I did ." While the former
general manager averred that he did ask other employees
their impressions of prospective new hires , there is no
evidence that he accorded these the same weight as he
did Asgari's recommendations Moreover, Thompson,
who staunchly denied that Asgari was authorized to
make any decisions with regard to hiring , admitted,
when questioned by me, that when the latter approached
him and said that another cocktail waitress was needed,
"I would tell him okay, we'll hire one " Further, while
both Asgari and Thompson denied that the Charging
Party interviewed prospective bar and cocktail lounge
employees, Asgari admitted that "the people they came
to the bar, they leave application with me. I ask them
their age and uniform. That's only thing-or they want
to work part-time or full-time. I wrote it on the applica-
tion, I give it to the manager that they can consider it."
While speaking to the applicant, Asgari would place his
16 Asgart estimated , without contradiction , that Respondent employed
between 200 and 300 different cocktail waitresses during his employment
tenure
1171
initials in the upper right-hand corner of the application
form, write on it the person's uniform size if the appli-
cant wanted to be a cocktail waitress, and circle the per-
son's age.
Turning to Asgari 's role, if any, in the adjustment of
employee grievances, a subject not discussed by Thomp-
son, Vojdani, or Monsefan but obviously crucial to the
matter of Asgari ' s alleged status as a statutory supervi-
sor, the record establishes that he may, indeed , have had
authority in that regard . Thus, as to payroll adjustment
forms, which are utilized by Respondent in order to cor-
rect errors as to employee wages, Asgari admitted being
involved in the process whereby such corrections are
made . He testified that employees would take said forms
to the general manager who would, in turn , seek out
Asgari in order that the latter verify that the employees
had, in fact , worked the claimed time Asgari admitted
that his role in this process consisted of verifying the em-
ployee claim and signing the above form in the space for
the "supervisor " However , his role in these matters ap-
pears to have been greater. Thus, AmS Silberlicht, who
appeared to be a credible witness, testified that some-
times when encountering wage payment problems, she
followed the following procedure:" "First I went to the
accounting office, and they told me to go to Davood I
would tell him the problem, and then he would go back
to the accounting office." According to Silberlicht, the
mater would be corrected in this manner and without the
involvement of any other managers While testifying
during rebuttal , Asgari did not deny this testimony
Concerning Asgari 's authority to grant time off to em-
ployees, the record discloses that he regularly signed va-
cation pay requests, which Ben Thompson testified, an
employee must submit 30 days prior to taking a vacation.
All witnesses testified that department managers must
initially approve such vacation requests and that Asgari
did so for the bartenders , barbacks , and cocktail waitress-
es. Analysis of the request forms which are part of the
instant record discloses that there is no space for approv-
al by anyone but the employee 's supervisor , and Vojdani
testified that the supervisor reviews the request , verifies
that there is sufficient staffing to cover the vacation,
signs the form , and forwards it to the accounting depart-
ment One might well draw the inference from his testi-
mony that no other manager , including the general man-
ager, need ultimately approve the request; however, fur-
ther analysis of those forms in the record discloses that
Thompson placed his signature below that of Asgari. Ex-
plaining, Thompson testified that he had to give final ap-
proval for any vacation but delegated to the individual
"who knew the employees" and "requirements , as far as
staffing goes" the authority to make the initial approval
"which is saying that it would not interfere with the
business of the restaurant to let these people go." Fur-
11 I note that R Exhs 26-29 are payroll adjustment forms and that
each concerns employee Silberlicht . While such obviously indicate that
she was aware of, and followed , the standard procedure , such does not
force the conclusion that she did not bypass it on occasion In fact, her
credibility is heightened by the fact that she was a witness called by the
General Counsel , and the information , regarding Asgari 's role in resolv-
ing pay problems , was elicited during cross -examination
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ther, Asgari would be the one to make this "recommen-
dation" for the bar employees. The issue is, of course,
the effectiveness of such, and Thompson averred that
after being given a vacation request form, initialed by the
department head, "I would look into it." This, I believe,
is a particular instance of Thompson tailoring his testi-
mony'to cover up the extent of authority possessed by
Asgari, and I do not believe Thompson ever independ-
ently investigated vacation requests. Thus, he already
had delegated to the department head the responsibility
for ensuring adequate staffing around a vacation; in such
circumstances, there would be nothing for him to "look
into." Finally, bearing upon Asgari's authority with
regard to granting time off, I note that the record dis-
closes two incidents'in which Asgari, apparently on his
own, granted additional leave of absence time to employ-
ees who already were taking vacations. Roderick Roe
testified that in mid-1983, he requested a 1-week vacation
from Asgari, at the time informing the latter that he
might decide to take a second, albeit unpaid, week of va-
cation Asgari informed him ". . . it might be difficult to
find a replacement for you. But that if one could be
found, I could have the. second week off " Thereafter,
during the first week, Roe telephoned the restaurant,
spoke to Asgari, and asked about the second week. "And
he said they wouldn't be needing me that week and yes I
could have a second week off." According to Roe, "I
asked him if someone had been found. He said, yes, there
was a replacement." Roe admitted that he had no knowl-
edge as to whether Asgari had submitted the request for
a second week to. higher management. The second inci-
dent involves a cocktail waitress named Edith Larson.
Sion Vojdani testified that she had requested a 1-week
vacation but had requested and received permission to
take a second week Monsefan, who had just assumed
the position of general manager, had no knowledge of
this permission, assumed she was absent without authori-
zation, and discharged her. Larson filed a contractual
grievance, and during this procedure, Asgari stated that
he had, in fact, granted permission for Larson to be off
from work for an additional week. As a result, Respond-
ent offered the employee her position back. During re-
buttal, Asgari failed to explain the circumstances sur-
rounding either granting of time off or deny the occur-
rence of either incident'
Regarding the matter of directing the work of the bar-
tenders, barbacks, and cocktail waitresses, there is no
record evidence establishing that Asgari regularly in-
structs these individuals as to assignments or how to do
their work. Indeed, given the type of work involved, it is
clear that, unlike in the traditional factory or jobsite set-
ting, it was not necessary for Asgari to direct bartenders
to pour drinks for customers or assign waitresses to assist
customers who were seated at tables. Nevertheless, the
record does reveal that the Charging Party did exercise
some authority over the work of bar employees Thus, as
discussed above, in order to accomplish the controlling
of beverage costs, Asgari would observe how the other
bartenders were pouring drinks, pointing out where they
were not adhering to Respondent's procedures Also, as
described infra, Asgari pointed out errors to employee
Roderick Roe in the latter's pouring of drinks and treat-
ment of customers. That other bartenders would offer
advice in this regard when asked does not obviate the
fact that Asgari's directives were unsolicited. Further, it
is clear that Respondent, to some extent, relied on the
Charging Party to discuss with bar personnel how they
performed their work. Thus, an entry in the restaurant's
logbook, dated April 14, 1983, reflects that Asgari was to
speak to a bartender regarding unclean liquor glasses Fi-
nally, in this area, Eskandar (Alex) Azarpay, currently a
bartender, but at one time an assistant manager, for Re-
spondent, testified that, in the latter position, "I wasn't
involved in . . how [the bar personnel] work, how they
perform." Asked who was responsible for the work of
the bar employees, Alex responded, "Bar personnel, the
management . . the Bar Manager."
With regard to Asgari's role or authority in the disci-
plining of employees, I note, at the outset, that Vojdani
asserted bar managers were authorized to fire employees.
However , in his testimony concerning what he told
Asgari, at the time he offered the Charging Party the bar
manager position, as to the extent of his authority, Voj-
dani did not mention that Asgari would be authorized to
terminate employees. Moreover, there is no record evi-
dence that Asgari ever exercised such authority. There-
fore, I conclude that Asgari was not authorized to fire
employees. With regard to the disciplining of employees,
Vojdani described two incidents involving bartender
Nooreddin Movahedi (Noori) during the summer of
1983. During the first, according to Voldani, he was
standing by the coffee station in the bar and "I observe
Mr. Asgari approach the bartender with the name Noori,
and he asked him about his name tag, 'Where is your
name tag?' and he told him . 'If you don't wear it
again , I'm going to have to take disciplining action.'
. . [Noori] said he wouldn't do it again " Describing
the second discipline episode, Monsefan, while testifying
during cross-examination , identified an employee repri-
mand notice (G.C. Exh. 10) which was given to employ-
ee Movahedi on July 29, 1983, by Vojdani for, among
other things, "not wearing name tag," and another em-
ployee reprimand notice (G.C. Exh. 11) which was given
to employee Movahedi on September 1, 1983 by Monse-
fan for "not using the fresh orange juice for mix drink "
As to the latter, Monsefan testified, VoJdani was the one
who observed the incident, informed Asgari and Monse-
fan as to what happened, and told Noori he had violated
Respondent's procedures. Movahedi testified that the
first incident occurred in a banquet room of the restau-
rant, that Vojdani issued the reprimand to him, and that
Vojdani also issued the second reprimand to him after he
(Movahedi) poured a glass of orange juice for Voldani
without knowing whether the juice was freshly
squeezed. I cannot credit Vojdani's testimony regarding
these disciplinary incidents and conclude that Asgari was
involved in neither. However, this is not to say that
there is no record evidence that Asgari was involved in
enforcing policy in the bar. Thus, I have described above
how Asgari sought to keep tight control over beverage
costs by making sure drinks were poured in accordance
with restaurant policy. Also, according to bartender
Roderick Roe, who testified in a credible manner, a cus-
HS LORDSHIPS 1173
tomer once complained that he was ignoring her; Asgari
"approached me and said we had a customer complaint
Would you from now on please take care of this."
While Roe admitted that other bartenders, besides
Asgari, gave him "advice" from time to time, he consid-
ered what Asgari did on the above occasion a reprimand
"because Davood sought him out" and "because he's
. my immediate supervisor "
Having previously concluded that Asgari was, in fact,
the bar manager, a fact relevant but not conclusive bear-
ing upon his supervisory status, I also note that he pos-
sessed terms and conditions of employment more akin to
Respondent's management personnel than to the bargain-
ing unit employees. Thus, not only was he a salaried em-
ployee but, also unlike other bartenders, Asgari possessed
managerial perquisites such as E & P privileges (the au-
thority to "purchase" complimentary drinks and meals
for friends and guest) and keys to various restaurant re-
stricted areas such as the liquor room, the wine cooler,
the outside ice machine, and the accounting office. Fur-
ther, Asgari worked approximately the same total hours
per week as did restaurant managerial employees and
was authorized to approve the transfer of bar "tabs" to
customers' dinner checks, a privilege not possessed by
other bartenders Also, the Charging Party regularly at-
tended the weekly restaurant management meetings
which were held every Wednesday afternoon These
were normally attended by each department head and
conducted by the general manager. Among the items dis-
cussed were the restaurant's current financial condition
(information not available to rank-and-file employees),
upcoming banquets and special events, personnel policies
and procedures, staffing problems including the schedul-
ing of employees in the various departments, and matters
pertaining to restaurant costs. With regard to the latter,
Thompson initially denied that he directed his comments
to Asgari as he had nothing to do with the "costing" of
scheduling and other matters but later admitted that he
(Thompson) never specified to whom his remarks were
directed and that Asgari was the one responsible for
costs (beverage and labor) in the bar Finally, bearing
upon his managerial status in the restaurant, Asgari on
occasion-but regularly during the fall of 1982-acted as
the closing manager in the restaurant. On such nights, he
was the only supervisorial and/or managerial representa-
tive in the restaurant, acting as a replacement for one of
the assistant managers His job function was to oversee
the operation of the entire restaurant, working behind
the bar "only if it was necessary." While denying that he
possessed any authority during such occasions to disci-
pline employees, grant time off, or handle an employee
grievance, Asgari acknowledged that he was able to
write in the restaurant log book, something only manag-
ers were permitted to do, initial the employee sign-
in/sign-out sheets, and, of course, close the restaurant.18
In assessing whether Asgari's duties and authority es-
tablish him to have been a supervisor within the meaning
of Section 2(11) of the Act at the time of his discharge, I
18 Alex Azarpay also acted as closing manager on occasion, the fact
that he did is not particularly relevant inasmuch as he had, at one time,
been an assistant manager for Respondent
reject the polar opposite positions of the witnesses who
testified on behalf of the General Counsel and on behalf
of Respondent Thus, I neither find nor conclude that, as
bar manager, Asgari possessed, as asserted by Vojdani
and Monsefan, the full panoply of authority, including
the right to hire, fire, discipline, and promote, normally
attendant to that position.19 Likewise, I neither find nor
conclude, as contended by Thompson, Bouw, and Asgari
himself, that the latter merely was the quintessential
"company man," helping management whenever needed
but possessing no real authority beyond that concomitant
with his seniority Rather, I believe that, as bar manager,
Asgari's job duties and authority over employees were
less than contended by Respondent but far greater than
argued by the General Counsel and that he, indeed, pos-
sessed and exercised sufficient authority to be considered
a statutory supervisor In so concluding, I rely on, what
I perceive are, the four most compelling attributes of his
authority, bearing on the supervisory issue . First, while
the Charging Party possessed no authority to hire bar
employees on his own initiative, Ben Thompson admitted
soliciting Asgari's views on prospective bartender em-
ployees, "sometimes" not bothering to interview those
Asgari recommended against hiring, and never hiring
anyone as to whom Asgari gave a negative recommenda-
tion. Section 2(11) of the Act makes clear that the power
to effectively recommend any of the enumerated at-
tributes of supervisorial authority is itself an attribute of
such authority. The Board defines the power to effec-
tively recommend as meaning "that the recommended
action is taken with no independent investigation by su-
periors." ITT Corp., 265 NLRB 1480, 1481 (1982). In this
case, former General Manager Thompson clearly some-
times made his decision not to hire a bartender applicant
merely on the negative recommendation of Davood
Asgari and without any independent investigation. Fur-
ther there is no record evidence that other employee ad-
verse hire recommendations were treated by Thompson
in such a manner. Gurabo Lace Mills, 249 NLRB 658.
659 (1980) The significance of Thompson's aforemen-
tioned heavy reliance upon Asgari is manifest , and, I be-
lieve the power to effectively recommend against hiring
is a dispositive of supervisorial authority as the power to
effectively recommend in favor of hiring. Berger Transfer
& Storage, 253 NLRB 5, 10 (1980). 20 Second , the record
is There is no record evidence that Asgari was authorized to promote
employees or effectively recommend such I have not credited the record
evidence assertedly establishing Asgari's authority to directly discipline
employees With regard to his comments to employees when trying to
reduce beverage costs and to employee Roe, the Board has long held that
absent some showing of impact on employees' job status, verbal repri-
mands do not constitute 'discipline" within the meaning of Section 2(11)
of the Act Hydro Conduit Corp, supra at 437, John Cuneo, Inc, 238
NLRB 1438 (1978) As the aforementioned appear to be minor and work
related, such do not serve to establish the authority to discipline
20 I also find significant and critical that Thompson would, without
more, accept the recommendations of Asgari that additional cocktail
waitresses were needed and that he (Thompson) would hire on such
basis Such appears to the undersigned an additional indication that
Thompson did, in fact, rely on Asgari's recommendations as to hiring or
not hiring applicants without independent investigation
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reveals that, at least, on two separate occasions, Asgari,
acting as the "immediate supervisor" of employees in the
bar and cocktail lounge, granted employees permission to
be off from work for an additional week after a 1-week
vacation Thus, Roderick Roe testified that he spoke to
Asgari about a 1-week vacation and the possibility of
taking a second week of unpaid leave, that Asgari indi-
cated such was feasible if a replacement could be found,
and that Asgari subsequently authorized him to be absent
from work the second week. Likewise, Vojdani testified
that, during the investigation of a grievance filed by
cocktail waitress Edith Larson, who had been terminated
for taking an unexcused absence, Asgari revealed that he
had granted Larson permission to take another week of
vacation, and that, as a result, Respondent rescinded the
discharge and offered Larson her job back. In neither in-
stance is there any record evidence that higher-level
managers were involved Although testifying on rebuttal,
Asgari neither denied the occurrence of these incidents
nor explained the circumstances of either. Accordingly,
the record warrants the inference that, in granting per-
mission for Roe and Larson to take leaves from work,
Asgari acted independently and was, therefore, author-
ized, on behalf of Respondent, to grant time off to bar
employees.21 The Board has long held that the power to
grant time off to employees is indicative of supervisorial
authority, and I so find herein Olympia Plastics Corp.,
266 NLRB 519, 530 (1983); Conner's Super Store, 266
NLRB 309, 311 (1983). Third, the record further reveals
that Asgari possessed some authority to adjust employee
grievances. Thus, cocktail waitress Amy Silberlicht testi-
fied that, on occasion, when she encountered a discrep-
ancy in her wages, she went to the accounting depart-
merit and was told to speak to her supervisor. There-
upon, she spoke to Asgari who, in turn, would proceed
back to the accounting department. According to Silber-
licht, the problem would be resolved in this manner and
without the involvement of higher-level management
Despite testifying on rebuttal, Asgari failed to either
deny nor explain the circumstances of such instances,
and the record warrants the inference that he acted alone
and was authorized to, and did, handle such employee
problems. There can be no doubt that such adjustment of
employee grievances is indicative of supervisorial author-
ity. Not only is the possession of such power specifically
enumerated within Section 2(11) but also the Board has
always considered the power as a sine qua non of su-
pervisorial authority. Formco, Inc., 245 NLRB 127, 128
(1979); Redi-Serve Foods, 226 NLRB 636, 637 (1976). Fi-
nally, in agreement with Respondent's counsel, I believe
that Asgari did, at least to some extent, direct the work
21 I have previously found that Ben Thompson would "approve" As-
gan's recommendations, that there was adequate staffing in the bar to
permit individuals to take vacations, without independent investigation
Given what I believe was Asgan's authority to grant time off when re-
quested, I believe Asgan's signature upon the vacation request form, in
reality, constituted the approval of the vacation request and that Thomp-
son, despite his testimony, played little, if any, role in the granting of va-
cation requests Further, Asgari's role, in this regard, was not of a mere
clerical nature . Thus, I believe his role as to vacations went beyond the
mere scheduling of the time and to the actual approval of the request
Accordingly, such is further illustrative of Asgari's authority to grant
time off
of the bartenders. Thus, while the normal bartender
work did not require direction, the record establishes
that Asgari did oversee the work to the extent of ensur-
ing that bar procedures were observed in order to find
ways that costs might be reduced. Therefore, I believe
he did have the authority to order that the work of the
bartenders, no matter how prosaic, be done correctly. To
this extent, Asgari did, indeed, direct the work of the
bartenders. Colorflo Decorator Products, 228 NLRB 408,
411 (1977).
Besides the above-described most compelling indicia of
Davood Asgari's status as a statutory supervisor, the
record is replete with the so-called secondary attributes
of such status, the existence of which, while not them-
selves dispositive of the issue, support my conclusions
with regard to the Charging Party. Initially, I have
found that, as the bar manager, Asgari was responsible
for the labor costs and beverage costs in the bar. Such
responsibility impacted upon his determination of the
weekly work schedules and upon his bartending duties,
forcing Asgari to be vigilant in making sure that the
other bar employees adhered to corporate procedures.
No other bar employee had these responsibilities, and
such has been considered an attribute of a statutory su-
pervisor. Gerbes Super Market, 213 NLRB 803, 806
(1974); Gray Drug Stores, 197 NLRB 924, 926 (1972).
Next, unlike other bar employees, Asgari regularly at-
tended the weekly restaurant management meetings, the
importance of which should not be underestimated; for,
at these meetings, personnel, financial, and other subjects
not normally broached with employees were discussed.
In the presence of other indicia of supervisory status, at-
tendance at management meetings may be considered as
such. Formco, Inc., supra; Matlock Electric Co., 223
NLRB 1437 (1976); Trans World Airlines, 211 NLRB 733
(1974). Also, with regard to these secondary characteris-
tics, unlike the other bartenders, Asgari received a salary
rather than being paid on an hourly basis and earned
more per week than the other bar employees. As with
the above indicia, such a difference in payment may be
considered as a factor in establishing supervisory status.
"Restaurant Horikawa," 260 NLRB 197, 204 (1982);
Denny's Restaurant #3, 177 NLRB 702, 703 (1969). Fur-
ther, Asgari enjoys privileges which are available to
managers but no to other employees, including bartend-
ers Thus, Asgari possessed E & P privileges for meals
and drinks and had keys to several restaurant restricted
areas such as the liquor room and the wine cooler Such
privileges may be considered in assessing supervisory
status. Direct Image Corp., 233 NLRB 365, 372 (1977);
Trans World Airlines, supra. Finally, I note that employ-
ees believed that Asgari was their immediate supervisor
and that he was introduced to them as the bar manager.
S. L. Industries, 252 NLRB 1058, 1071 (1980); Gerbes
Super Market, supra.
Based on the foregoing, and the record as a whole, the
conclusion is warranted, even mandated, that Davood
Asgari, as Respondent's bar manager, possessed and exer-
cised the indicia of a supervisor within the meaning of
Section 2(11) of the Act. This is so notwithstanding that
he was without the normal bar manager's authority to
HS LORDSHIPS
hire, fire, or discipline employees; for the above section
of the Act does not require those powers as the embodi-
ment of supervisory status. Penn Industries, 233 NLRB
928, 930 (1977). Further, in agreement with counsel for
the General Counsel, I place no reliance for my conclu-
sion as to Asgari, on either his role in the scheduling of
bar personnel for work or his responsibility of ordering
liquor for the bar. Such are, in fact, immaterial in nature
an should not be relied on in assessing whether a bar
manager is a statutory supervisor. Finally, most compel-
ling to the contention that Asgari should not be found to
be a statutory supervisor are the facts that he spent
almost his entire workday performing the work of a bar-
tender and wore the standard bartender uniform in so
doing. However, in Our Way, Inc., 238 NLRB 209
(1978), the Board found an individual to be a supervisor
despite the fact he spent "approximately 90 percent of
his time" doing physical yard work. Conclusive as to his
status was his effective recommendation of a wage in-
crease for an employee. Id. at 213. The teaching of that,
and similar Board decisions22 is clear-if he possesses
any of the powers set forth in Section 2(11), an individ-
ual must be found to be a supervisor irrespective of how
much actual work time is spent performing supervisory
functions. Commercial Testing & Engineering Co, supra.
Upon such a basis, I reject the assertion that mere con-
sideration of how Asgari spends his work time should be
diapositive of his employee status.23
22 For example, see S C Industries, supra , and Commercial Testing &
Engineering Co, 248 NLRB 682, 684, supra
23 The General Counsel greatly relies on three Board decisions as sup-
port for the contention that Asgari was not a supervisor for Respondent
First, it is argued that like the produce manager in Valley Mart Supermar-
kets, 264 NLRB 156 (1983), Asgari's alleged supervisory duties are more
clerical than supervisory However, the individual in that case could not
effectively recommend, nor did he possess the authority to grant time off
or to adjust grievances Next, counsel assert that Asgari's duties are simi-
lar to those of the bar manager in Joe & Dodie's Tavern, 254 NLRB 401
(1981) While that bar manager and Asgari share similar secondary indi-
cia of supervisorial authority, that bar manager had no authority to effec-
tively recommend, to grant vacation time off, or to adjust grievances, all
of which powers were possessed by Asgari Finally, counsel points to
Union 76 Auto Truck Plaza, 267 NLRB 754 (1983), for the proposition
1175
Inasmuch as I have found Asgari to have been a super-
visor within the meaning of Section 2(11) of the Act, the
law is clear that , assuming he was, in fact , discharged for
having engaged in union or other protected concerted
activities , Respondent may not be found to have violated
Section 8(a)(1) and (3) of the Act in so doing Beasley v.
Food Fair of North Carolina, 416 U.S. 653, 654-655
( 1974), Parker-Robb Chevrolet , 262 NLRB 402 ( 1982).
Likewise Respondent may not be found to have violated
Section 8 (a)(1) of the Act based on any statements it may
have made to Asgari . Harvey's Resort Hotel , 271 NLRB
306 (1984). Accordingly , I shall recommend that the in-
stant complaint be dismissed in its entirety 24
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not violated the Act in any manner.
On the foregoing findings of fact, conclusions of law,
and the entire record, I issue the following recommend-
ed25
ORDER
It is recommended that the complaint be dismissed in
its entirety.
that individuals who spend more than 50 percent of their worktime per-
forming nonsupervisory duties should be included within a bargaining
unit That case, however, is inapposite as the alleged supervisor possessed
none of the enumerated supervisory indicia of Sec 2(11) of the Act, nor
any of the so-called secondary indicia other than being more highly paid
than other employees Of course, the extent of Asgari's authority was far
greater
24 Having concluded that Asgari was a supervisory employee, I need
not decide if he also was a managerial employee
25 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses